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Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`*
`FLYPSI, INC.
`*
`November 22, 2022
`
`*
`VS.
`
`
` * CIVIL ACTION NO. W-22-cv-31
`GOOGLE, LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`MARKMAN HEARING (via Zoom)
`
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Michael A. Bittner, Esq.
`M. Brett Johnson, Esq.
`Winston & Strawn LLP
`2121 N. Pearl Street, Suite 900
`Dallas, TX 75201
`Robert W. Unikel, Esq.
`John A. Cotiguala, Esq.
`Paul Hastings LLP
`71 South Wacker Drive, 45th Floor
`Chicago, IL 60606
`Elizabeth L. Brann, Esq.
`Paul Hastings LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Paige Arnette Amstutz, Esq.
`Scott, Douglass & McConnico, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided transcription.
`
`Court Reporter:
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 2 of 20
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`(Hearing begins.)
`DEPUTY CLERK: A civil action in Case
`6:22-CV-31, Flypsi, Inc. versus Google LLC. Case
`called for a Markman hearing.
`THE COURT: If I could have announcements
`from counsel, please.
`MR. BITTNER: For Flyp, Michael Bittner
`of Winston & Strawn. With me are my associate Marisa
`Thompson, also on the line are my partner Brett
`Johnson, and for my client Flyp, Peter Rinfret and Tom
`Bruderman.
`
`THE COURT: Morning.
`For defendant?
`MS. AMSTUTZ: Good morning, Judge
`Albright. Paige Amstutz with Scott Douglas & McConnico
`on behalf of defendant Google LLC. I'm joined by my
`colleague from Paul Hastings, Mr. Rob Unikel, along
`with our client representative Mishima Alam from
`Google.
`
`Mr. Unikel will be addressing the Court
`today, and we are ready to proceed.
`(Clarification by Reporter.)
`THE COURT: Well, this is the last
`Markman I will have before Thanksgiving at least, and
`it's good to see that I have two challenging terms this
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 3 of 20
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`morning, "primary telephone number" and "secondary
`telephone number."
`So it's a good way to wrap up the
`holiday -- this holiday season. I'm happy to hear
`Google's arguments as to why these two claim terms are
`indefinite.
`
`MR. UNIKEL: Good morning, Your Honor.
`This is Rob Unikel on behalf of Google.
`First, can you hear me all right?
`THE COURT: I can. Yes, sir.
`(Clarification by Reporter.)
`MR. UNIKEL: Thank you, Your Honor.
`Hopefully we'll give you something to be
`thankful about as you go off for your Thanksgiving
`break here.
`
`With your permission, may I please share
`my screen with some slides?
`THE COURT: Yes. Of course.
`MR. UNIKEL: Thank you, Your Honor.
`Can you see my cover page right now?
`THE COURT: I can.
`MR. UNIKEL: Great.
`So, Your Honor, as you've already
`mentioned, today we're here to discuss really just two
`interdependent claim terms from all of the asserted
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 4 of 20
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`patent claims. Those terms are "primary telephone
`number" and "secondary telephone number."
`I am -- I have received the Court's
`preliminary instructions indicating its current view
`that plain and ordinary meaning should control. And I
`certainly am aware that primary and secondary are terms
`of common parlance, people use them all the time in
`different context in different ways.
`I think as we dig a little bit deeper
`into how these are used in the claims and in the claim
`terms, I believe that what the Court will see, however,
`is that those -- it's precisely the ordinary meaning of
`those terms in these claims that creates the
`indefiniteness problem.
`I've started by posting for the Court
`the -- a representative claim here, which both parties
`have been using in the briefing, for reference. This
`is from the '770 patent, Claim 1.
`This is claiming a method of providing
`telephone service. And what you can see here is I have
`highlighted in yellow the various instances where
`secondary telephone number is required and primary
`telephone number is required.
`So you'll see, for example, the first
`element requires "associating a secondary telephone
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 5 of 20
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`5
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`number with a primary telephone number." There's --
`then those terms are repeated throughout the claim.
`I have highlighted two other terms here
`in blue, which I'll discuss with you also later, "first
`digital information" and "second digital information."
`And I wanted the Court to be aware of the different use
`in the claims of primary and secondary to define the
`telephone numbers versus first information or second
`information when merely two different items are being
`discussed.
`
`So, Your Honor, the issue here becomes
`what -- why is it important to construe these terms
`now? Why not just give them their plain and ordinary
`meaning, let the case proceed, let the jury figure it
`out later?
`
`The difficulty here, Your Honor, as
`you've just seen from the claims, the claims require
`the presence of at least one primary number and at
`least one secondary number.
`If all the numbers associated with a
`handset are considered primary or all the numbers that
`are associated with a handset are considered secondary,
`then there would be no claim coverage.
`So in the claims then, how does a person
`of skill in the art determine whether a number is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 6 of 20
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`primary, is secondary, is neither or is both?
`And to give you the preview of coming
`attractions in the case, for example, if someone
`accused of infringing the patent were to say, there are
`no secondary numbers on a handset. There are only
`primary numbers, multiple primary numbers. And the
`response was, well, if there are multiple numbers, one
`must be primary and the others must be secondary. The
`question is: Under what criteria can that allegation
`be made? What about the terms "primary telephone
`number" and "secondary telephone number" as used in the
`patents allow for a determination by somebody trying to
`determine whether they're infringing or not that a
`number is primary, is secondary or is neither?
`So again, in considering the Court's
`preliminary construction that the plain and ordinary
`meaning should control, there's a few things that we
`have to isolate about how those terms are used in the
`actual patent claims.
`The first is that primary telephone
`number and secondary telephone number as used in the
`claims are clearly different and distinct from a first
`(audio distortion) briefing, their position is
`essentially that primary and secondary are just
`synonyms for first and second.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 7 of 20
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`But we know, as I've just shown you in
`the representative claim, that the claims separately
`used the adjectives "first" and "second," for example,
`when referring to digital information, when they were
`not making a distinction based on the primacy, the
`importance of particular numbers.
`But when it came to the telephone numbers
`that are required for the operation of the claims, the
`patentee deliberately selected primary and secondary
`numbers as the adjectives.
`And as we know, when the patentee chooses
`different terms to use in the claims, that those
`differences need to have some meaning.
`Next, the patent makes clear that there
`can be multiple secondary numbers. In fact, I've shown
`on this slide just the abstract, and this appears also
`in other places in the specification, where it says:
`The same handset can be associated with multiple
`secondary telephone numbers.
`Now, that only makes sense to talk about
`multiple secondary numbers if a secondary number is a
`type of number.
`If it's just a counting off of the
`numbers, a first number, second number, third number,
`fourth number or -- and the like, then you would not
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 8 of 20
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`talk about multiple secondary numbers. You would just
`list the number or numbers that were going to be on a
`device.
`
`And then this gets to the real nub of the
`problem with the plain and ordinary meaning, Your
`Honor, which is that the plain and ordinary meaning of
`primary is something main or most important.
`The plain and ordinary meaning of
`secondary suggests a backup or alternative or something
`less important.
`Those would be the plain and ordinary
`meanings that I think any person of skill in the art
`or, frankly, any layperson would understand when you
`talk about a primary thing or a secondary thing.
`The problem is that these terms are
`inherently subjective. If I were to ask you right now
`what is your primary telephone number, you would give
`me an answer based on whatever criteria you personally
`would use and apply to decide what your primary
`telephone number was or a secondary telephone number
`was.
`
`You could apply any criteria you want,
`logical/illogical, but you would be essentially giving
`me your answer based on whatever internal criteria you
`would be providing. That's the problem with how these
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 9 of 20
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`terms are used in the patent claims.
`One user might regard his business
`number, for example, as being a primary number. The
`other might regard his business number as a secondary
`number.
`
`And when you have two phone numbers that
`are associated or assigned to a handset, there's no way
`to determine in the patent whether either of those is
`considered primary and under what terms, whether
`neither is considered primary and under what terms or
`how the user would even make that determination.
`Importantly, Your Honor, when you look at
`those claims, what you'll see is, there's not even a
`way to determine whose perspective controls in
`determining whether or not a number is primary or
`secondary.
`
`Who's making that determination? Is it
`the user of a device? Is it the carrier? Is it
`somebody else? You don't know and there's literally no
`guidance in the patent at all about who should
`determine whether a number is primary, secondary or
`neither.
`
`So as I've shown here in the gray boxes
`on this slide, the way that the terms are used in the
`claims right now, a primary telephone number might mean
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 10 of 20
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`a number regarded by the user as the main number for a
`particular purpose. In other words, it might be
`primary for your personal contacts, secondary for your
`business contacts.
`Might be a number regarded by the user as
`the main number during a particular period of time. So
`you might say, well, my business cell number is my
`primary number during business hours, but during
`nonbusiness hours, I want my personal cell number,
`which is associated to the same handset, to be my
`primary number.
`And it could be, for the same reasons
`that I just described, any number that a user regards
`as main for any arbitrary reasons.
`By the same token, a secondary telephone
`number could be one or more numbers, because we know
`there could be multiple, that are regarded by the user
`as less important for a particular person -- purpose.
`Again, for personal contacts, they might regard their
`business cell phone number as being secondary, of
`secondary importance.
`Same thing for a particular time period.
`A user might regard a personal cell phone number as
`being secondary during business hours but as primary
`after 5:00 or 6:00 or 7:00, depending on when they
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 11 of 20
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`define the end of their business day.
`And it could be regarded as secondary
`really for any reason that the -- it just could be
`their less preferred number.
`The point is that without any criteria in
`the patent for what makes a number primary versus what
`makes it one of multiple secondary numbers that could
`be assigned, it is completely subjective and it depends
`on who you ask, what criteria they're applying and
`under what conditions they're applying it.
`So as I've shown here in the box on the
`bottom, you're left with this problem. A user could
`designate all numbers on a handset as primary with no
`secondary numbers or a user could designate all numbers
`on a device as secondary with no primary numbers.
`Perhaps they have a different number that they consider
`their primary numbers.
`And if that's the case, then there is no
`claim coverage because we know that the claims require
`a primary number and a secondary number.
`And so when we get down the road on this
`case and if, you know, Google, for example, says,
`they're only primary numbers. All the numbers are
`equal, they're all primary or all secondary. There's
`no differentiation. And Flypsi were to say, well, one
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 12 of 20
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`of them has to be primary, the question will become:
`What criteria applies? What is the construction of
`primary that allows somebody to conclude that one
`number is primary and one number is secondary?
`Now, I will anticipate an easy answer
`might have been if the patent had been written
`differently and Flypsi's positions had been
`differently, that perhaps it's the number that's
`assigned to the handset. The primary number is the one
`that gets assigned, and a secondary number is one
`that's not assigned.
`The problem is that, according to the
`patent specification's express teachings, both a
`primary number and secondary number can be assigned to
`a handset. Here are just some of the quotes on the
`slide from the specification making this clear.
`For example, the third bullet point says:
`The server may automatically assign one or more
`secondary telephone numbers.
`THE COURT: Counsel, counsel, I'm getting
`
`your point.
`
`Let me ask you something. How did this
`get past the examiner?
`I mean, they didn't hide this. It's
`everywhere throughout the entire thing and -- every
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 13 of 20
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`13
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`slide you said. The examiner couldn't have missed that
`they were saying primary and secondary. How -- was
`he -- was he dead? Was he sleeping? Did they bribe
`him?
`
`I mean, how could an examiner who is
`skilled in this technical area read through this and,
`if you're right, not just bounce it back and say --
`you've -- you've listed to me about 90 grammatical
`reasons why you say Google's going to have this
`horrible problem. How did it get issued?
`This isn't a tiny little thing in
`something like I usually get, where it's, you know, a
`node -- I think typically there are grammatical issues
`where someone in a claim says, you know, there's a
`first node, a second node, a third node, going on and
`then says, wherein the node will do X, and you don't
`know maybe which node it is. I get that.
`But this is the je ne sais quoi of the
`patent. How did it get out?
`MR. UNIKEL: Your Honor, obviously I
`can't get into the mind of the examiner, but what I can
`tell you is what I surmise is the case, which is: In
`the same way as if I were to ask you what your primary
`number is and you would, I think, have a working
`understanding based on your own criteria what was
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 14 of 20
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`14
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`involved, because it is a term that is used with some
`regularity, I believe that the examiner was applying
`whatever criteria the examiner believed primary and
`secondary meant.
`And, you know, from a prosecution
`standpoint, that may have made sense to the examiner.
`The problem is when you then look to the next step,
`which is how would people who want to know whether
`they're practicing this claim or not practicing this
`claim evaluate their position.
`THE COURT: So the prosecutor (audio
`distortion) --
`(Clarification by Reporter.)
`THE COURT: But, you know, good luck to
`Google because I understand it, but Google, when they
`get this and they have engineers and great patent
`lawyers like you, they're not going to be able to do
`it. I'm going to let it go anyway. I'm going to let
`it get out where it is said over and over and over.
`But, you know, it doesn't make any sense
`
`to me.
`
`MR. UNIKEL: And, Your Honor, I
`understand that. And obviously we would hope that
`these kinds of things are thought about and caught at
`the prosecution stage, but as you've seen in many of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 15 of 20
`
`15
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`your own cases, in U.S. Wells, for example, where high
`pressure was the term that was included in the claims
`during examination --
`THE COURT: No, no, no. No, no, no.
`That's a terrible example.
`I mean, that's one -- that's the exact
`opposite of this. That's the exact opposite of this.
`This is -- was the entire patent. This is -- what
`they're claiming you're saying is indefinite.
`MR. UNIKEL: Yes, Your Honor. I am
`saying that, because whether it was correctly
`interpreted by the examiner or foreseen by the
`examiner, the problem that we're left with with the
`terms that are actually in the issued claims are that
`there is no criteria to determine whether or not
`numbers are primary or secondary.
`Whether that was an unfortunate after
`effect of the examiner's own understanding or belief
`about what primary or secondary meant, the reality is
`that we now have claims that do persistently use these
`terms. But once again, we are left with the problem
`that we don't know whose perspective these are judged
`by, what criteria are used to determine primary versus
`secondary and how any person could determine whether or
`not they're infringing or not infringing with
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 16 of 20
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`16
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`reasonable certainty.
`And that is the entire reason why,
`unfortunately, there are some claims that make it
`through the Patent Office and the patent process and
`still are indefinite and still include terms that just,
`for whatever reason, the indefiniteness was not
`appreciated during the focus of the examination, but it
`is appreciated once you look in the context of
`litigation and how this might or might not be applied
`by people of skill in the art.
`I don't know if that answers your
`question, Your Honor.
`THE COURT: No. It's probably as good as
`you're going to do.
`Is there anything else that you wanted to
`
`add?
`
`MR. UNIKEL: Your Honor, nothing in
`particular, other than I would like to say that one
`point that has been made by the briefing by Flypsi is
`that this one term was construed in the Dialpad case,
`and that's primary telephone number.
`I just wanted to point out, as Your Honor
`will recall, indefiniteness was not raised there nor
`was the interaction between primary telephone number or
`secondary telephone number, which is the problem that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 17 of 20
`
`17
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`gives rise to the indefiniteness. What makes one
`primary versus what makes one secondary?
`In Dialpad, the one thing that we know
`for certain is that Flypsi opposed a construction of
`primary telephone number that would have made it the
`number assigned to the handset at the time of
`activation.
`
`In fact, I've put on the slide that's in
`front of Your Honor an excerpt from Flyp's briefing
`where they opposed the restriction of a primary number
`to the number assigned at the time of activation. And,
`in fact, the specification makes clear that both
`numbers, a primary and a secondary number, can be
`assigned to the handset.
`So the only thing we know from the
`Dialpad instance is that there is no concrete
`restriction on what a primary telephone number can be,
`and Flyp has opposed any such restriction on that.
`So now when we're trying to determine,
`well, what if they're all primary numbers? What if
`they're all secondary numbers and who and how is that
`determination made? We do not have any actual
`criteria, including from Flyp, in order to make that
`determination.
`That's my final point, Your Honor.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 18 of 20
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`18
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`THE COURT: Thank you. I'll be back in a
`
`second.
`
`the record.
`
`(Pause in proceedings.)
`THE COURT: Okay. If we can go back on
`
`The Court's going to maintain its
`constructions of plain and ordinary meaning on both
`claim terms.
`
`Those are the only two claim terms I
`think we had.
`I hope that you all -- Counsel, what
`office are you in? What geographical?
`MR. UNIKEL: I'm in the Chicago office,
`
`Your Honor.
`
`days?
`
`THE COURT: What's the weather like these
`
`MR. UNIKEL: Actually, today it's
`brilliant. Today it's 50 degrees and sunny, which is
`very unusual considering that it was a 10-degree
`windchill two days ago. I'm thrilled with 50 degrees.
`THE COURT: I can only imagine if you
`live in Chicago, these are -- well, I'll tell you what,
`so we'll quit early and you can go out and enjoy this
`beautiful weather in Chicago, which is so rare in
`November.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 19 of 20
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`I hope you guys have a wonderful
`Thanksgiving, and I hope to see at least some of you in
`person soon. Take care.
`(Hearing adjourned.)
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:22-cv-00031-ADA Document 77 Filed 12/01/22 Page 20 of 20
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`UNITED STATES DISTRICT COURT )
`WESTERN DISTRICT OF TEXAS
`)
`
`I, Kristie M. Davis, Official Court
`Reporter for the United States District Court, Western
`District of Texas, do certify that the foregoing is a
`correct transcript from the record of proceedings in
`the above-entitled matter.
`I certify that the transcript fees and
`format comply with those prescribed by the Court and
`Judicial Conference of the United States.
`Certified to by me this 1st day of
`December 2022.
`
`
`
`
`
`
`/s/ Kristie M. Davis
`KRISTIE M. DAVIS
`Official Court Reporter
`800 Franklin Avenue
`Waco, Texas 76701
`(254) 340-6114
`kmdaviscsr@yahoo.com
`
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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