Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 521

Declaration of Mark D. Selwyn in Support of 520 Opposition/Response to Motion filed byApple Inc.(a California corporation). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 520 ) (Selwyn, Mark) (Filed on 12/20/2011)

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Exhibit H UNITED STATES INTERNATIONAL TRADE COMMISSION In the Matter of: ) Investigation No. CERTAIN 3G WIDEBAND CODE ) 337-TA-601 DIVISION MULTIPLE ACCESS 1 WCDMA) MOBILE HANDSETS ) AND COMPONENTS THEREOF 1 OPEN SESSION Pages: 1459 through 1880 (with excerpts) Place: Washington, D.C. Date: July 11, 2008 HERITAGE REPORTING CORPORATION m c i a l Reporters 1220 L Street, N.W., Suite 600 Washington, D. C. 20005 (202) 628-4888 r 0 1459 BEFORE THE 1 2 UNITED STATES INTERNATIONAL TRADE COMMISSION 3 4 5 In the Matter of: ) Investigation No. 6 CERTAIN 3G WIDEBAND CODE ) 337-TA-601 7 DIVISION MULTIPLE ACCESS ) 8 (WCDMA) MOBILE HANDSETS ) 9 AND COMPONENTS THEREOF 1 10 Hearing Room B 11 12 United States 13 14 International Trade Commission 500 E Street, Southwest Washington, D.C. 16 17 Friday, July 11, 2008 18 19 VOLUME IV 21 22 23 The parties met, pursuant to the notice of the Judge, at 8:30 a.m. 24 25 BEFORE: THE HONORABLE PAUL J. LUCKERN Heritage Reporting Corporation (202) 628-4888 1460 1 2 APPEARANCES : For Complainant InterDigital: 3 SMITH R. BRITTINGHAM, IV, ESQ. 4 PATRICK J. COYNE, ESQ. 5 JOHN D. CROCETTI, ESQ. 6 STEVEN M. ANZALONE, ESQ. 7 ELIZABETH A. NIEMEYER, ESQ. 8 QINGYU YIN, ESQ. 9 HOUTAN K. ESFAHANI, ESQ. 10 RAJEEV GUPTA, ESQ. Ph.D. 11 Finnegan Henderson Farabow 12 Garrett & Dunner LLP 13 901 New York Avenue, N.W. 14 Washington, D.C. 20001-4413 15 16 STEPHEN E. KABAKOFF, ESQ. 17 Finnegan Henderson Farabow 18 Garrett & Dunner LLP 19 3500 SunTrust Plaze 20 303 Peachtree Street, N.E. 21 Atlanta, GA 30308-3263 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 1461 1 2 APPEARANCES (Continued) : For Complainant InterDigital: 3 CHRISTOPHER P. ISAAC, ESQ. 4 JUDY W. CHUNG, ESQ. 5 JOHN M. MULCAHY, ESQ. 6 Finnegan Henderson Farabow 7 Garrett & Dunner LLP Freedom Drive 8 11855 9 Two Freedom Square 10 Reston, VA 2 0 1 9 0 - 5 6 7 5 1 1 12 For Respondent Samsung: 13 MATTHEW D. POWERS, ESQ. 14 STEVEN S. CHERENSKY, ESQ. 15 ANNE M. CAPPELLA, ESQ. 16 SONAL N. MEHTA, ESQ. 17 Weil, Gotshal 18 201 19 Redwood Shores, CA 9 4 0 6 5 & Manges LLP Redwood Shores Parkway 20 21 DAVID J. HEALEY, ESQ. 22 GARLAND T. STEPHENS, ESQ. 23 Weil, Gotshal 24 700 25 Houston, TX 7 7 0 0 2 & Manges LLP Louisiana Street, Suite 1 6 0 0 Heritage Reporting Corporation (202) 628-4888 1462 For Respondent Samsung: DAVID A. HICKERSON, ESQ. DAVID N. SOUTHARD, ESQ. 4 Well, Gosthal 5 1300 6 Washington, D.C. 2 0 0 0 5 & Manges LLP Eye Street, N.W, Suite 9 0 0 7 8 9 For ITC Staff: BENJAMIN LEVI, ESQ. 10 THOMAS FUSCO, ESQ. 1 1 MATTHEW COX, Summer Intern 12 U.S. International Trade Commission 13 500 E Street, S.W. 14 Washington, D.C. 2 0 4 3 6 15 INTERPRETER: Lily Olm 16 17 Attorney-Advisor: 18 ROBERT HALL, ESQ. 19 Attorney-Advisor 20 Office of Administrative Law Judges 21 U.S. International Trade Commission 22 500 23 Washington, D.C. 2 0 4 3 6 E Street, S.W. 24 25 *** Index appears at end of transcript Heritage Reporting Corporation (202) 628-4888 *** 1463 P R O C E E D I N G S 1 (8:30 2 JUDGE LUCKERN: 3 a.m.) This is day four in 4 the evidentiary hearing in the matter of 5 Certain 6 Access (WCDMA) Mobile Handsets and Components 7 Thereof, Investigation Number 337-TA-601. 3G Before we start the cross-examination 8 9 Wideband Code Division Multiple of Mr. Merritt, who wants to report on the times for yesterday? MR. POWERS: I will, Your Honor. The 12 agreed times are for Complainants, they have 13 consumed 14 hours and 49 minutes. 14 Respondents have consumed 11 hours and 4 1 15 minutes. JUDGE LUCKERN: 16 17 And And that’s the total, correct? 18 MR. POWERS: That is cumulative. 19 JUDGE LUCKERN: total. It could not be anything but the total. Okay. All right. 22 Obviously it is the Come on there, Mr. Powers. MR. POWERS: As long as yesterday felt and was, it wasn’t that long. JUDGE LUCKERN: 25 Let’s hope this is going to be a short cross. No. You take all Heritage Reporting Corporation (202) 628-4888 1624 JUDGE LUCKERN: 1 2 Well, so you are ready to call the next witness? 3 MR. POWERS: We are. 4 JUDGE LUCKERN: Who is it going to be? 5 I have got your appendix 9 here to your 6 prehearing statement. MR. POWERS: Mr. Kowalski. 7 8 So what is going to - Ms. Mehta will conduct the examination. JUDGE LUCKERN: 9 All right. Mr. John 10 Kowalski. He is the first. Who is going to be 1 1 the second? And with him, how much time do you 12 think you are going to be with him? 13 must be someplace in your prehearing statement. 14 How much time do you think you are going to be 15 with him? MR. POWERS: 16 17 It will be quite short, about 15 minutes or less. JUDGE LUCKERN: Maybe we can get him 18 19 I guess it out. Who is the next one? 20 MR. POWERS: Who is the next one? 21 JUDGE LUCKERN: 22 MR. POWERS: You don't know? Mr. Boucobza. He is the 23 French law expert who will be testifying with a 24 translator. 25 JUDGE LUCKERN: This is Heritage Reporting Corporation (202) 628-4888 1625 1 B-o-1-o-u-r-c-h-i? 2 MR. POWERS: 3 JUDGE LUCKERN: It is B-o-u-c-o-b-z-a. I’m sorry. 4 wrong name here. 5 I have the Where is he on appendix 9, Mr. Powers or somebody on your team? I will find it. 6 MR. POWERS: 7 JUDGE LUCKERN: 8 Can you tell me what page it is? MR. POWERS: 9 We don‘t have it here. JUDGE LUCKERN: 10 1 1 Xavier Boucobza. 12 I have it. Professor And his area of expertise is French law, on page 9. 13 MR. POWERS: That’s it, Your Honor. 14 JUDGE LUCKERN: 15 What do you estimate for him, how long? 16 MR. POWERS: Probably a half hour. 17 JUDGE LUCKERN: We don’t know about - - 18 let‘s at least get rid of one of them if we can 19 before lunch. 20 great. cross-examination of Mr. Kowalski? MR. LAVENUE: 23 24 25 I compliment you people. Respondents, who is going to do any 21 22 So, all right, we’re doing Lionel Lavenue, Your Honor. JUDGE LUCKERN: All right. Do Heritage Reporting Corporation (202) 628-4888 1649 AFTERNOON SESSION (12:53 p.m.) JUDGE LUCKERN: 4 Mr. Powers, do you want to call your next witness, please? 5 MR. POWERS: Yes, Your Honor. 6 MR. HICKERSON: David Hickerson from 7 Weil, Gotshal & 8 Respondents. We call Professor Xavier 9 Boucobza. Manges for the Samsung JUDGE LUCKERN: 10 Okay, Professor, do 11 you want to take the witness stand? 12 have a translator and check translator? MR. HICKERSON: 13 14 Your Honor, we have a translator, Lily Olm. JUDGE LUCKERN: 15 16 Do you have a card? Could I have it, please? Did I hear something about a check translator? 18 Do we have one? We do not? 19 MS. NIEMEYER: 20 JUDGE LUCKERN: 21 And we record. NO. We're on the public What I usually do is put the witness under oath and I don't put a translator under 23 oath, I just ask the translator if she will 24 make an accurate translation. And I don't know 25 what Lily will say, but we will see. Heritage Reporting Corporation (202) 628-4888 That's 1650 1 all I do. 2 it like that. And it is on the record and we leave So who - - we have Ms. Niemeyer. 3 Okay. 4 So, Professor, do you want to raise your right 5 arm, please. 6 Whereupon-XAVIER BOUCOBZA, 7 8 having been first duly sworn, was examined and 9 testified through the interpreter as follows: 10 THE INTERPRETER: Yes, I swear to God. 1 1 JUDGE LUCKERN: We do have a 12 translator. Her name is Lily Olm. She is 13 consecutive/simultaneous interpretation, 14 French, German, Dutch. 15 Lafayette Forest Drive, apartment 1 4 - - I hope 16 you don‘t mind me putting this in the record, 17 do you? She has a place at 7 7 1 8 Lily? 18 THE INTERPRETER: No problem. 19 JUDGE LUCKERN: Annandale, Virginia, And she has something about voice, 20 22003. 21 703-862-2456. Lily, you will make an accurate translation, won’t you? 23 THE INTERPRETER: 24 JUDGE LUCKERN: 25 I will do that. All right. That’s wonderful. Heritage Reporting Corporation (202) 628-4888 1651 1 (Discussion off the record.) 2 JUDGE LUCKERN: I believe I heard 3 Complainant's counsel say something. What did 4 you say, Ms. Niemeyer? 5 MS. NIEMEYER: I had just asked that 6 the interpreter speak into the microphone when 7 she does her translation. JUDGE LUCKERN: 8 9 You understand that, Lily, don't you? 10 THE INTERPRETER: Yes, I do. 11 JUDGE LUCKERN: 12 card. 13 And I have Lily's I read it into the record. record. Off the 14 (Discussion off the record.) 15 JUDGE LUCKERN: Back on the public 16 record. 17 may need it for the transcript, et cetera, et 18 cetera. 19 Let's ask your first question, counselor. I have given the card to Karen. So that's where we stand. All right. MR. HICKERSON: 20 23 24 25 Thank you, Your Honor. DIRECT EXAMINATION 21 22 She BY MR. HICKERSON: Q. Professor, could you state your full name for the record, please. A. Yes. My name is Xavier Boucobza. Heritage Reporting Corporation (202) 628-4888 1652 1 Q. And where are you currently employed? 2 A. I work as a law professor at the 3 4 5 University, Paris, 11. Q. And how long have you been employed as a professor of law? 6 A. I am a law professor since 1997. 7 Q. Could I ask you to look at 8 Exhibit RX-2791. 9 A. Yes. 10 Q. Do you recognize that document? 1 1 A. Yes, absolutely. That is my witness 12 13 14 15 statement. Q. And did you prepare this witness statement? Yes, I prepared it myself. A. MR. HICKERSON: 16 Your Honor, in order 17 to speed things up, I would propose that I ask 18 that the professor be qualified as an expert in 19 French law on the basis of his witness 20 statement and the contents thereof. 21 through all of his qualifications if you would 22 prefer . 23 JUDGE LUCKERN: All right. I could go Let me - - 24 first of all, let me just take a quick look at 25 the exhibit which you had identified as Heritage Reporting Corporation (202) 628-4888 1653 1 RX-2791. Is it in this book? MR. HICKERSON: 2 3 Yes, Your Honor, it is in your binder. JUDGE LUCKERN: 4 I have volume 1 of 1. 5 Is there another - - I should have how many 6 binders up here? MR. HICKERSON: 8 9 10 One binder, Your JUDGE LUCKERN: 7 I have it here, all Honor. right. Yes. I have before me the witness statement of Professor Xavier Boucobza that speaks for itself. It indicates his high school, Ph.D. in law, et cetera, et cetera. 14 And his professional positions, as I am looking 15 at question number 4, et cetera. 16 And Mr. Hickerson wants me to qualify 17 this witness as an expert in French law on the 18 basis of this exhibit, again, which is RX-2791. 19 What is the position of Complainant's counsel 20 on that proffer? 21 22 MS. NIEMEYER: object, Your Honor. 23 JUDGE LUCKERN: 24 MR. LEVI: 25 InterDigital does not What about the staff? Staff has no objection, Your Honor. Heritage Reporting Corporation (202) 628-4888 1654 JUDGE LUCKERN: All right. 1 Based on 2 my review of RX-2791, I don’t have any problem 3 qualifying the good professor as an expert in 4 French law. Go ahead, counselor. 5 BY MR. HICKERSON: 6 7 8 9 10 1 1 12 Q. Professor, have you been asked to render any expert opinions in this case? Yes, I was asked by Samsung to render A. my expert opinion in this case. Q. Can you state what the questions that you were asked to render opinions on were? Two questions were asked of me. A. The 13 first one with regards to the legal nature of 14 the relation between the members of ETSI, and 15 the second one with regards to the legal extent 16 of article 6 . 1 of the ETSI rules. 17 18 19 20 Q. Nate, could you just pull up RDX-21, please. And are these the two questions that you addressed in your initial expert report? 21 22 THE WITNESS: 23 - MS. NIEMEYER: JUDGE LUCKERN: 24 Ms. Niemeyer. 25 Objection, Your Honor. Yes, absolutely. All right. objection? Go ahead, What is the basis for your Heritage Reporting Corporation (202) 628-4888 1655 MS. NIEMEYER: We don't object to the 2 first sort of block that's up that identifies 3 the questions put to the expert that he just 4 testified as to, but the portion at page 5 5 which is basically an excerpt from his expert 6 report, which has not been admitted into 7 evidence, and this is a way to lead the expert 8 and get around that. JUDGE LUCKERN: Mr. Hickerson, how do 9 you want to respond? MR. HICKERSON: We're not seeking to 11 12 have his expert reports admitted into evidence. 13 We're simply, you know, putting as a 14 demonstrative exhibit for aiding the Court, you 15 know, the questions he was asked and the answer 16 that was given to one of the questions. That is his opinion. I can certainly 17 18 have him testify to it. MS. NIEMEYER: 19 20 We don't object if that second square on the RDX is redacted. JUDGE LUCKERN: Well, let me just read 22 the transcript, please. 23 5, that is page 5 of the RX-2791? You said 24 page 5. 25 MS. NIEMEYER: This portion of page It is an excerpt from Heritage Reporting Corporation (202) 628-4888 1656 1 his expert report. JUDGE LUCKERN: 2 Oh, oh, all right. 3 Well, Mr. Hickerson, why don't you have him 4 testify to it, Mr. Hickerson. MR. HICKERSON: 5 6 7 8 9 Very well, Your Honor. BY MR. HICKERSON: Q. Professor, you referred to an entity named ETSI. Can you tell me what ETSI is? Yes. A. ETSI is an association which is 10 governed by French law. 11 initiative of the European Union. 12 regroups the operators that deal with 13 telecommunications. 14 Q. And it Could YOU - MS. NIEMEYER: 15 16 It has been created by Objection, Your Honor, move to strike as outside - - objection, Your Honor, I move to strike that response as 18 outside the scope of his expert report. He did 19 not provide that detail on what ETSI is in his 20 report. 21 JUDGE LUCKERN: How do you want to respond, Mr. Hickerson? 23 MR. HICKERSON: Your Honor, I am 24 simply establishing the foundation for the 25 witness's testimony. He certainly provided Heritage Reporting Corporation (202) 628-4888 1657 1 expert reports on the ETSI organization, the 2 documents governing the organization, the 3 obligations of the party to the organization 4 and I think it is certainly fair game to ask 5 the witness if he knows what the organization 6 is. 7 I do not think that every single word 8 that comes out of the witness’s mouth here 9 today must be mimicked in an expert report that 10 1 1 12 13 I am not even allowed to put into evidence. JUDGE LUCKERN: Mr. Levi, what is your position with respect to the motion to strike? MR. LEVI: Your Honor, the information 14 elicited by Mr. Hickerson - - I’m sorry, Your 15 Honor, my mic was off. 16 Your Honor, the information that 17 Mr. Hickerson elicited or sought to elicit by 18 his question would seem to be more factual in 19 nature as opposed to opinion testimony, so it 20 seems to be a fair question for Mr. Hickerson 21 to ask as background for this witness’s 22 testimony. 23 JUDGE LUCKERN: All right. I am going 24 to deny the motion to strike. And you 25 certainly, Ms. Niemeyer, have the opportunity Heritage Reporting Corporation (202) 628-4888 1658 1 to any cross to go into that matter, but the 2 motion to strike is denied. 3 Mr. Hickerson. MS. NIEMEYER: 4 Go ahead, Could we also have the 5 slide taken down, as long as page 5 is up 6 there? 7 expert. It appears to be just leading the JUDGE LUCKERN: 9 Could we Absolutely. Please do that? 10 11 All right. MR. HICKERSON: 8 take the slide down. JUDGE LUCKERN: 13 It is taken down. 14 All right. Thank you. Go ahead, Mr. Hickerson. BY MR. HICKERSON: 15 Q. Professor, I would like you to look 16 at - - first, let me ask you, have you looked at 17 the documents that govern ETSI? 18 A. Yes. In order to prepare my report, I 19 had to look over the documents that govern 20 ETSI. 21 Q. Could you take a look at Exhibit RX-2083, please. A. Yes. 24 Q. Can you tell me what that document is? 25 A. Those are the ETSI rules. Heritage Reporting Corporation (202) 628-4888 1659 1 2 Q. Okay. And is this a document, the ETSI IPR policy? 3 A. Yes, that’s correct. 4 Q. And does the ETSI IPR policy say 5 anything about the obligations of ETSI members 6 who own IPR that is essential to the ETSI 7 standard? 8 9 A. Yes. The first one of the obligations is the burden of the holder of one of the 10 essential patents, he needs to declare that 11 patent before ETSI, so that this would comport 12 with article 4.1. 13 Q. Nate, could you pull up article 4.1 14 there, please. 15 And can you also pull up article 6.1. Professor, after making a disclosure 16 17 pursuant to article 4.1, does the ETSI IPR 18 policy oblige the declarant to do anything 19 else? 20 A. According to article 6.1, the holder 21 of essential patent needs to grant licenses, is 22 obliged to grant licenses to the ETSI members 23 which request it. 24 25 Q. And does article 6.1 say anything about the terms of such licenses? Heritage Reporting Corporation (202) 628-4888 1660 1 A. Yes, according to article 6.1, those 2 licenses should be granted fairly, reasonable, 3 and nondiscriminatory. 4 Q. Now, earlier you said that one of the 5 questions you were asked to give an opinion on 6 was the nature of the relationship between the 7 ETSI members? 8 A. That’s correct. 9 Q. And so under French law, can you tell 10 us what the nature of the relationship is 1 1 between ETSI members? 12 A. Under French law, the relationship 13 which exists between the members of an 14 association is always of contractual nature. 15 Q. And is there any particular type of 16 contract under French law that is applicable 17 here? 18 A. Yes. Here we have to do - - we are in 19 the context of what is called, under French 20 law, framework agreement. 21 22 23 Q. And what is, under French law, a framework agreement? A. A framework agreement is before 24 anything else a contract, a real contract. 25 That means that it has a binding force, which Heritage Reporting Corporation (202) 628-4888 1661 1 binds the parties. Then it is a contract which 2 frames the relationship between the parties. 3 And in this context, it necessitates 4 the existence of the creation of implementing 5 contracts. 6 Q. What is an implementing contract? 7 A. An implementing contract is a contract 8 which implements the framework agreement in 9 order to accomplish the objective set forth in the framework agreement. 11 12 13 Q. And in the context of ETSI, what are the implementing contracts? A. On the implementing contract are the 14 licenses which are granted the way it is 15 foreseen, set forth by article 6 . 1 of the ETSI 16 rules. 17 Q. Now, under French law, does the 18 framework agreement have to set forth all of 19 the terms of the implementing contracts? 20 A. No, not at all. The framework 21 agreement only needs to foresee, set forth the 22 principle of the application - - the 23 implementing contract. 24 25 Q. Well, what about the price term? What if the price term is missing, is there still a Heritage Reporting Corporation (202) 628-4888 1662 1 2 valid contract? A. Yes. The framework agreement is still 3 valid and with regards to that point, French 4 case law pronounced itself very clearly. 5 decisions were rendered by the Supreme Court in 6 its most Solinow formation. This Supreme Court 7 on the 1st of December, ’95 decided upon 8 validity of such a framework agreement. 9 Q. Four Professor, could you turn to 10 Exhibit RX-508, please. 11 MR. HICKERSON: Your Honor, this is a case that’s in French, we have attached a 13 certified translation in English as part of the 14 exhibit. Nate, could you turn to page 4 of the 15 exhibit, please. 17 You have it there, JUDGE LUCKERN: 16 don’t you, Ms. Niemeyer? 18 MS. NIEMEYER: 19 JUDGE LUCKERN: 20 Yes, Your Honor. And Mr. Levi, you have it, don’t you? 21 MR. LEVI: Yes. 22 JUDGE LUCKERN: 23 Go ahead, Mr. Hickerson. 24 He says yes. BY MR. HICKERSON: 25 Q. Professor, is this one of the Supreme Heritage Reporting Corporation (202) 628-4888 1663 1 2 3 4 5 6 Court cases that you just mentioned? A. Yes, absolutely. This is one of the decisions I just mentioned. Q. And could you tell us what the holding of this case is? A. Yes, in this case, there was a 7 framework agreement which necessitated 8 implementing contracts. 9 implementing contracts was not mentioned. And the price for the The 10 Supreme Court declared the framework agreement 1 1 to be valid. 12 implementing contracts had to be executed. 13 Q. And so for that reason, the Professor, are you aware that 14 InterDigital has made declarations pursuant to 15 section 4 . - - sorry, section 6 . 1 with respect 16 to certain of its patents? A. Yes, absolutely. Certain declarations 18 were given to me before I started authoring my 19 expert report. 20 21 Q. Now, once InterDigital made these declarations, was it obliged to offer a license to ETSI members to the patents that it included 23 24 25 in its declaration? MS. NIEMEYER: Objection, Your Honor. The professor did not opine on the specific Heritage Reporting Corporation (202) 628-4888 1664 1 obligations by InterDigital in his expert 2 report. MR. HICKERSON: 3 Your Honor, the expert 4 report opined on the obligations of ETSI 5 members, including InterDigital and Samsung, 6 who are both ETSI members. JUDGE LUCKERN: 7 Mr. Levi, what is your 8 position with respect to the objection to the 9 question? MR. LEVI: 10 Your Honor, if 11 Mr. Hickerson is correct that the professor 12 opined on the obligations of ETSI members at 13 large, and if it is true that InterDigital is a 14 member of ETSI, then I think it logically 15 follows that the professor’s opinion 16 opinions would apply to InterDigital. So the 17 staff opposes the objection. JUDGE LUCKERN: 18 -- I am going to overrule 19 the objection. 20 if you want to, to get into it on cross, 21 Ms. Niemeyer. 22 ahead. 23 24 25 You will have the opportunity, Objection is overruled. Go Sir, you may answer the question. question - - off the record. THE INTERPRETER: I have it. Heritage Reporting Corporation (202) 628-4888 The 1665 JUDGE LUCKERN: Go ahead. Back on the 1 2 public record. 3 question. The translator has the Go ahead, please. THE WITNESS: 4 Yes. Every ETSI member 5 that makes a declaration that has to do with 6 the essential patent is bound because of the 7 binding force of the contract to grant licenses 8 to the other ETSI members that request such a 9 license. 10 1 1 BY MR. HICKERSON: Q. Now, assuming the parties don't agree 12 on the price for the license, under French law, 13 how is the price determined? 14 A. The solution is clear with regards to 15 French law. 16 to unilaterally determine the price. 17 18 19 Q. It is the patent holder who needs Now, can the patent holder here, InterDigital, set any price it wants? A. No. They are restricted, there is a 20 twofold restriction. First, they are 21 restricted by the contract itself, the terms of 22 the contract. 23 restricted by the rules of French law. 24 BY MR. HICKERSON: 25 Q. And then, second, they are Nate, can you pull up RDX-19. Heritage Reporting Corporation (202) 628-4888 1666 Professor, you said there was limitations imposed by the contract. Can you tell us what limitations those are? 4 MS. NIEMEYER: Objection. 5 JUDGE LUCKERN: 6 7 Go ahead, the basis for your objection, Ms. Niemeyer? MS. NIEMEYER: Objection, there is no 8 foundation for this exhibit, and it appears to 9 be just leading the witness. 10 MR. HICKERSON: Your Honor, it is a 1 1 demonstrative exhibit. It is supported by the 12 testimony he just gave and the testimony he 13 will give. And it is, I think, completely in 14 line with the ground rules in this case 15 concerning proper demonstrative exhibits. 16 MS. NIEMEYER: 17 testimony he has already given. 18 lead him to the question that Mr. Hickerson 19 wants him to give. 20 MR. HICKERSON: It does not follow the It appears to He testified that 21 there were limitations under the contract and 22 under French law. 23 to those two points. 24 25 The exhibit goes precisely JUDGE LUCKERN: Mr. Levi, what is your position with respect to the objection? Heritage Reporting Corporation (202) 628-4888 1667 MR. LEVI: 1 Well, Your Honor, the 2 way - - I think the way we have been proceeding 3 this week, in numerous instances that I can 4 recall the examining attorney has put up slides 5 in advance of the witness’s testimony. 6 particularly see the problem, unless the 7 objection is foundation, in which case I think 8 Mr. Hickerson could ask the witness if he is 9 familiar with the slide. I don’t But as the objection 10 currently stands, I am not inclined to support 1 1 it, Your Honor. JUDGE LUCKERN: You said you are not 12 13 inclined to what? MR. LEVI: 14 15 I am not supporting the objection, Your Honor. JUDGE LUCKERN: All right. 16 17 Ms. Niemeyer, do you want to say anything 18 further? 19 MS. NIEMEYER: If Mr. Hickerson would 20 like to lay some foundation for the exhibit, I 21 might withdraw my objection. 22 JUDGE LUCKERN: 23 proceed, Mr. Hickerson? 24 MR. HICKERSON: 25 How do you want to Your Honor, I have already asked him about limitations. He has Heritage Reporting Corporation (202) 628-4888 1668 1 given answers about contract and French law. 2 am going to follow up and ask him now specifics 3 about those contract and French law 4 limitations, which are on the slide. I At this point, I am merely using a 5 6 demonstrative. 7 the ground rules provide that a demonstrative 8 needs to do, either it is in the record or it 9 is going to be followed up and put in the I believe that’s exactly what 10 record. And this is what this is. 1 1 ask the Court to overrule the objection. JUDGE LUCKERN: 12 So I would First of all, I don’t 13 make a big distinction between demonstratives 14 and documentary. Demonstratives are not in 15 yet. 16 the objection. And you will have the 17 opportunity for cross, Ms. Niemeyer. 18 overruling the objection. He can answer the 19 question. 20 In any event, no, I am going to overrule I am Maybe in the long run, maybe the 21 demonstrative will never get in. Usually if 22 there is testimony about some portion of it, it 23 will get in, maybe a portion of the 24 demonstrative. 25 Can you find that question? In any event, it is overruled. Do you want me to Heritage Reporting Corporation (202) 628-4888 1669 read it? MR. HICKERSON: Your Honor, I would restate the question at this point. 4 I am not sure there was a question pending. JUDGE LUCKERN: 5 Don’t put another 6 little phrase in it or something. That’s the 7 only reason many times I want to read it 8 because I find attorneys, not purposely - - but 9 go ahead. 10 11 BY MR. HICKERSON: Q. Professor, you said that there were 12 limitations on setting the price imposed by 13 contract. Can you tell me what in this case 14 those limitations are? 15 16 A. The limitations are a direct result from article 6.1. Because of what is said in this article, the price needs to be fair, 18 19 reasonable and nondiscriminatory. Q. And does the licensor, that would here 20 be InterDigital, have to take into account the 21 purposes and policies of ETSI in setting the 22 price? 23 A. Absolutely. This is a contractual 24 obligation that links the ETSI members. 25 a firm obligation. Heritage Reporting Corporation (202) 628-4888 It is 1670 1 Q. And you also said there were 2 limitations under French law that applied here. 3 Can you tell us what those are? 4 A. Yes. There are two restrictions. 5 First of all, the holder of an essential patent 6 needs to fix this price in good faith. The 7 notion of good faith results directly from the 8 code, from the civil code. And then the price which is determined 9 10 cannot be an abusive price. 11 jurisdictions will surveil and eventually 12 sanction an abusive price. 13 Q. 14 please. 15 A. And the Now, can you turn to Exhibit RX-545, Yes. MR. HICKERSON: 16 Again, Your Honor, 17 this is a document in French. 18 attached to it a certified English translation. 19 BY MR. HICKERSON: 20 21 22 Q. Professor, do you recognize this document? A. It does have Can you tell us what it is? Yes, of course. This is a comment 23 given by a professor, it has a very 24 long-standing reputation in France. 25 Professor Jacques Gestau, and he gave a comment Heritage Reporting Corporation (202) 628-4888 It is 1671 1 here with regards to the four decisions which 2 were pronounced by the Supreme Court. 3 Q. And is this a source that you have 4 cited in your expert opinions and relied on in 5 forming your opinions? 6 7 8 9 10 11 Yes. A. This is, indeed, a comment which is cited several times in my expert opinions. Q. Professor, under French law, if the licensee disagrees with the price set by the licensor, what happens? The licensee may then go against that A. 12 price, dispute that price. 13 sue before the jurisdictions in order to either 14 request a lower price or in order to be paid 15 damages. 16 Q. Okay. So the licensee may I would like you to turn, 17 again, to Exhibit RX-2083, please. 18 ETSI IPR policy. 19 please. That's the Can you just pull that up, And if you could just focus on article 20 In particular, the last sentence of 21 6.1. 22 section 6.1. 23 record. 24 made subject to the condition that those who 25 seek licenses agree to reciprocate." And I will just read it into the It says, "The above undertaking may be Heritage Reporting Corporation (202) 628-4888 1672 Have you looked at that section of 1 2 3 6 . l? A. Yes, absolutely. I even established 4 an additional report with regards to that 5 point. 6 7 8 9 Q. And what is your understanding of that sentence of section 6 . 1 ? A. This is a reciprocity clause. It means that every licensee who is the holder of 10 an essential patent which falls within the 1 1 realm, the domain, the operation of ETSI, has 12 the obligation to give out licenses, to grant 13 licenses with regards to this essential patent. 14 Q. Now, would tying an offer to license 15 its essential patents with other business 16 proposals that have nothing to do with either 17 party’s essential IPR comport with ETSI 18 obligations? 19 MS. NIEMEYER: 20 JUDGE LUCKERN: 21 22 Objection, leading. Sustained. BY MR. HICKERSON: Q. Professor, what is your opinion with 23 respect to an offer to license essential IPR 24 with requirements that are not connected with 25 either party’s essential IPR? Heritage Reporting Corporation (202) 628-4888 1673 1 That would be a violation of article A. It said that only essential patents are 2 6.1. 3 subject of that article and the obligation to 4 grant licenses has only to do with the 5 essential patents. 6 Q. Nate, could you pull up RDX-20, So, Professor, if InterDigital’s 7 please. 8 offers to license its essential patents is 9 conditioned on a requirement that Samsung also 10 take a license to InterDigital’s nonessential patents, would that comport with InterDigital’s 12 ETSI obligations? MS. NIEMEYER: 14 Objection, lack of foundation, leading by this demonstrative. JUDGE LUCKERN: Do you want a ruling? 15 16 Do you want to lay some foundation? Do you 17 want to rephrase or do you want to argue? MR. HICKERSON: 18 Your Honor, he has 19 just testified and he has given an expert 20 opinion in this case. JUDGE LUCKERN: 21 ahead. 23 Finish arguing. MR. HICKERSON: So you want - - go That’s it, huh? He has given an expert 24 opinion on this case that tying an offer for 25 essential patents with other business proposals Heritage Reporting Corporation (202) 628-4888 1674 does not comport with ETSI obligations. I am simply asking him with respect to an offer from InterDigital, the condition, a license to its essential patents with a requirement that a license to nonessential IPR also be taken, would that comport with section 6.1? He has issued extensive reports in 8 this case about the obligations of the parties 9 under section 6.1. He has issued an opinion in this case with respect to tying offers for 11 licenses to essential IPR with other business 12 proposals and other requirements that don’t 13 have anything to do with the parties’ essential 14 IPR. 15 is to the question that I have asked. 16 would like a ruling, yes. 17 I can’t see what possible objection there So I JUDGE LUCKERN: All right. 18 Ms. Niemeyer, do you have anything new you want 19 to say before I hear the position of Mr. Levi? 20 MS. NIEMEYER: Yes. There is no 21 foundation that Professor Boucobza has any idea 22 what InterDigital has or has not done. 23 this slide seems to suggest that either he did 24 or it leads him to draw conclusions about 25 offers that have or have not been made. Heritage Reporting Corporation (202) 628-4888 And 1675 JUDGE LUCKERN: All right. Mr. Levi, 1 2 what is your position with respect to the 3 objection? MS. NIEMEYER: 4 5 One other thing, Your Honor. 6 JUDGE LUCKERN: Go ahead. 7 MS. NIEMEYER: Also in his report, he 8 gave no conclusion on the ultimate issue of 9 whether or not particular acts by InterDigital 10 comported, since he had no knowledge of those. That’s all. JUDGE LUCKERN: All right. Mr. Levi, 13 what is your position with respect to the 14 objection? 15 MR. LEVI: Well, Your Honor, I would 16 like to make two points. First, as I noted a 17 few moments ago, the way we have been 18 proceeding this week, the examining attorney 19 has on several instances placed demonstrative 20 exhibits on the screen prior to questioning the 21 witness regarding subject matter of that demonstrative. 23 So the staff would have no objection 24 to the witness’s responding to Mr. Hickerson‘s 25 question. With regard to the demonstrative Heritage Reporting Corporation (202) 628-4888 1676 1 exhibit itself, Mr. Hickerson has yet to move 2 that exhibit, this exhibit into evidence. 3 think any objection Ms. Niemeyer has to this 4 particular exhibit is premature. 5 JUDGE LUCKERN: Fine. So I Let me just Over the years, I try not to 6 make one comment. 7 do it, but I take each situation that comes up 8 by itself. 9 similarity with what I have done earlier And the fact that there is 10 doesn’t mean that I have to do the same thing 1 1 here because there may be a little bit of 12 difference here. 13 So whatever is done earlier, unless a 14 party wants to point out on such and such a 15 date, you did this and this and this and this, 16 exactly the same, I usually don’t give any - much weight to prior rulings. That doesn’t 18 mean I don’t stand by my prior rulings, but 19 there are various facets that come in here. 20 21 And the demonstrative is not in yet. And he has been qualified as an expert and, Ms. Niemeyer certainly would have the 23 opportunity to cross-examine him. 24 going to overrule the objection on this 25 particular question, you will have an answer So I am Heritage Reporting Corporation (202) 628-4888 1677 1 and we will see where we are going to go. Only 2 on this. You 3 are protecting your client’s interests. 4 don‘t want to do it, fine with me. Go ahead. 5 6 If you You may answer that question. MR. HICKERSON: 7 8 Keep up the work, Ms. Niemeyer. Shall I restate the question, Your Honor? JUDGE LUCKERN: 9 Well, so long as you 10 don’t put in a little nuance on there which is 1 1 different and I am going to hear from 12 Ms. Niemeyer again. MR. HICKERSON: 13 14 Do you understand? I will do my best to repeat it exactly. JUDGE LUCKERN: 15 That’s why I do it 16 most of the time because I have found in the 17 past, lawyers will throw in another little 18 thing here. 19 BY MR. HICKERSON: 20 Q. Go ahead. Professor, if InterDigital’s offer to 21 license its essential patent is conditioned on 22 a requirement that Samsung also take a license 23 to InterDigital’s nonessential patents, would 24 that comport with InterDigital’s ETSI 25 obligations? Heritage Reporting Corporation (202) 628-4888 1678 1 A. No. According to article 6.1, the 2 price needs to be fixed for the license of 3 essential patent and only of an essential 4 patent. 5 Q. Well, what if InterDigital‘s offers 6 require Samsung to cross-license Samsung’s 7 nonessential IPR to InterDigital in order to 8 obtain the license on the essential IPR, would 9 that comport with InterDigital’s ETSI 10 11 obligations? A. That, again, would be a violation of 12 article 6.1. 13 interpretation of the reciprocity clause. Only 14 the essential patents are the ones that fall in 15 the context of article 6.1. It would also be a bad We also have to mention that there is 16 17 no obligation whatsoever to grant licenses to 18 nonessential IPRs. 19 Q. Professor, what if InterDigital’s 20 offers required Samsung to enter into a joint 21 venture or other business arrangement with 22 InterDigital that was unrelated to 23 InterDigital‘s essential patents, would that 24 comport with InterDigital’s ETSI obligations? 25 A. For the same reasons, this would be a Heritage Reporting Corporation (202) 628-4888 1679 1 violation of article 6 . 1 of the ETSI rules. 2 MR. HICKERSON: 3 questions on direct, Your Honor. JUDGE LUCKERN: All right. Who goes 4 5 next? 10 Yes, please, Your Honor. JUDGE LUCKERN: 8 9 Ms. Niemeyer, you are going next? MS. NIEMEYER: 6 7 I have no further proceed with your cross-examination? How is the professor doing? 1 1 THE WITNESS: 12 JUDGE LUCKERN: 13 Everything is fine. Is this his first time testifying in court? THE WITNESS: 14 15 Are you ready to I was the witness before a court in Great Britain in the past. JUDGE LUCKERN: 16 But this is the first 17 in the United States? 18 THE WITNESS: 19 JUDGE LUCKERN: This is not a District Yes. 20 Court. 21 here. 22 District Courts, Professor. 23 city. 24 Beautiful city. 25 This is an administrative proceeding It is a little different than in the You live in Paris? You have a lovely Beautiful city. (Discussion off the record.) Heritage Reporting Corporation (202) 628-4888 1680 JUDGE LUCKERN: Ms. Niemeyer, are you 1 2 ready? 3 MS. NIEMEYER: 4 JUDGE LUCKERN: 5 8 9 Back on the public record. CROSS-EXAMINATION 6 7 Yes, Your Honor. BY MS. NIEMEYER: Q. Good morning, or good afternoon, Professor Boucobza. 10 A. Good afternoon. 11 Q. Could you please turn to 12 Exhibit RX-2083, which is the ETSI rules and 13 procedures, please. 14 A. Yes, okay. 15 Q. You testified that 6.1 requires that a 16 party is - - or a member is obliged to grant to ETSI licenses, correct? And the only 18 particular phrase I am referring to is the 19 quote, obliged to grant. 20 A. Yes, that's correct. He has a 21 contractual obligation to grant licenses for 22 the essential patents. 23 - Q. Okay. And what 6.1 actually says is 24 the entity is prepared to grant irrevocable 25 licenses on fair, reasonable and Heritage Reporting Corporation (202) 628-4888 1681 nondiscriminatory terms, correct, the actual 2 language in the rule is prepared to grant, 3 correct? 4 A. Yes. That is correct. And the 5 wording here means that every ETSI member who 6 wishes to obtain a license can have it. 7 Q. Okay. 8 A. And that is why it is said that the 9 10 1 1 holder of the patent is prepared, he is ready to grant the licenses. Q. There isn’t anywhere in 6 . 1 that says 12 is prepared to grant licenses to ETSI members, 13 there is no limitation, including that it is 14 only to ETSI members, correct? 15 A. The limitation speaks for itself, if I 16 can say. Because the article is in a contract 17 which binds only ETSI members. 18 Q. Okay, under your theory, except there 19 is nothing in 6 . 1 that says it is only 20 applicable to ETSI members, correct? 21 A. In every contract, when there are - - when there are dispositions, when there are 23 terms set, they are not repeated. It is not 24 repeated that these are only for the advantage 25 of the members of the - - I mean, of the parties Heritage Reporting Corporation (202) 628-4888 1682 1 2 concerned. Q. So you agree that it is not in 6.1? 3 MR. HICKERSON: 4 answer, I would object that that 5 mischaracterizes his testimony. 6 this question several times now, he has given 7 the answer. 8 JUDGE LUCKERN: 9 MS. NIEMEYER: Your Honor, before the She has asked How do you respond? That’s fine. 10 the language speaks for itself. 1 1 I think I will withdraw the question. JUDGE LUCKERN: 12 13 14 Thank you. Move on. BY MS. NIEMEYER: Q. Earlier you testified in response to 15 Mr. Hickerson’s questions regarding what 16 happens if the parties don’t agree on the 17 price. 18 A. Yes, that’s correct. 19 Q. And what happens is the patentee 20 unilaterally sets a price, correct? 23 24 25 A. That’s correct. Q. 21 There are no negotiations between the parties, correct? A. Well, practically speaking, there may, of course, be negotiations which take place if Heritage Reporting Corporation (202) 628-4888 1683 the parties wish to do that. But if the parties do not agree, it is upon the shoulders of the holder of the patent to unilaterally 4 5 determine the price. Q. Could you please turn to, in your 6 witness binder, the yellow cover, under the 7 first tab that says deposition, Min-U-Script, 8 on page 63 of your deposition testimony, then I 9 will read from line 4 to page 6 6 , 10 "Question: Okay 1 1 JUDGE LUCKERN: 12 --I1 Mr. Hickerson, you have it there? MR. HICKERSON: I do have it, Your JUDGE LUCKERN: 13 14 line 1. And the witness has it Honor. 15 16 there? 17 of him and he can follow it. 18 read it ahead of time, he can read it, et 19 cetera. 20 21 Make sure the witness has it in front If he wants to Lily, you make sure the witness - MR. HICKERSON: Your Honor, he does have it in front of him but, of course, it is going to have to be translated, so I guess I 23 would ask Ms. Niemeyer which portion of this 24 she plans to read and what the purpose is. 25 If she is reading it for impeachment, Heritage Reporting Corporation (202) 628-4888 1684 1 I don't see how this relates to the answer he 2 just gave. JUDGE LUCKERN: 3 All right. I 4 understand that. 5 many times and you know my position on that. 6 do want the English in the record, so somebody, 7 Ms. Niemeyer, read it in and then have it 8 translated and then ask your question. 9 BY MS. NIEMEYER: 10 1 1 Q. But we have had this argument I So at page 63, line 4 to 2 2 . "Question: Okay. Going back to if an 12 offer is made, and it is rejected because the 13 parties don't agree that the terms meet the 14 contractual obligations, and they can't agree 15 by discussing the issue, is the only opinion 16 then litigation? 17 18 19 20 21 Mr. Healey objected to the form of the question, vague and ambiguous. "The Witness: question, please? Can you repeat the Just you - - translation. "Answer: Several remarks regarding 22 your question. First, that the determination 23 of a price is not an offer, it's an obligation, 24 which is incumbent upon the patent owner, who 25 fixes the price or determines the price, Heritage Reporting Corporation (202) 628-4888 1685 1 unilaterally in that regard or in that - - in 2 that regard, it is not, strictly speaking, an 3 offer." Then the purpose which does impeach 4 5 his testimony. "A second point as was stated earlier, 6 7 the parties can always discuss in reality 8 JUDGE LUCKERN: A little slower. 9 --I1 Go ahead. MS. NIEMEYER: 10 IIAnswer: Or have 11 discussions in reality, but the price cannot 12 result from these 13 JUDGE LUCKERN: 14 MS. NIEMEYER: 15 JUDGE LUCKERN: Have you finished? Yes. Can you translate That's what Ms. Niemeyer said he 16 that? 17 testified to in the deposition. 18 transit first, and then we will have the 19 question. THE WITNESS: 20 21 translation. 22 Can you I don't need a BY MS. NIEMEYER: 23 24 25 Q. I know it. So every time - JUDGE LUCKERN: Wait a minute. this the witness? Heritage Reporting Corporation (202) 628-4888 Is 1686 THE INTERPRETER: 1 2 speaking. JUDGE LUCKERN: 3 4 You understand the question? THE WITNESS: 5 6 The witness understand it. (In English) Thank you. JUDGE LUCKERN: 7 Yes, I So now ask your I don't think there is a question, 8 question. 9 Ms. Niemeyer. 10 MS. NIEMEYER: 11 JUDGE LUCKERN: 12 13 There is not. Please proceed. BY MS. NIEMEYER: Q. So every time there is a dispute 14 between the parties to 15 what they have to do to find out what the right 16 price is, they have to go to court, correct? 17 A. -- regarding the price, More exactly, it is upon the licensee 18 to dispute the price before the owner of the 19 patent and this before the court. 20 Q. Okay. And it is true in your view 21 that the declaration submitted to ETSI, there 22 must be one for each patent, correct? 23 24 25 A. That's correct, article 6.1 applies to every essential patent. Q. And a party would have to license on a Heritage Reporting Corporation (202) 628-4888 1687 1 2 per patent basis, correct? A. Yes. In order to be -- to comport 3 with article 6.1, it definitely needs to 4 license patent by patent on a per patent basis. 5 Q. So if an entity wanted to license five 6 patents, it would have to get five licenses and 7 a different rate or whatever the appropriate 8 rate is for each patent, correct? 9 A. Yes, with regards to article 6.1, Of course, it may be the case 10 that’s correct. 11 that the parties agree among themselves to take 12 then that price for several licenses. 13 Q. Okay. You aren’t actually personally 14 familiar with how - - what ETSI members do to 15 reach their licenses, are you? 16 A. May you specify that question? 17 Q. You haven‘t personally studied the 18 license agreements made by ETSI members 19 pursuant to their membership, correct? 20 A. Well, my expert report does not deal 21 at all with licenses which were granted, but 22 with the legal extent of article 6.1. 23 Q. And could you please turn to CX-816, 24 which is in your binder with the yellow cover 25 on it. And they are organized numerically. Heritage Reporting Corporation (202) 628-4888 1688 JUDGE LUCKERN: 1 2 you get it. 3 here in front of me. Let me know, sir, when It is towards the end. Do you have it there? 4 THE WITNESS: 5 JUDGE LUCKERN: 6 I do have the page. Go ahead, Ms. Niemeyer. 7 I have it BY MS. NIEMEYER: 8 9 Q. If you look at question 7 and its answer, if you turn to the third page, I basically have just taken the exhibit and just 11 made it larger so that it can be read by 12 someone without a microscope. Just for the record, this is a 14 printout from the ETSI web site and ETSI's IPR 15 policy FAQs. 16 "does the firm concerned have to pay some The question, question 7 reads, consideration to ETSI for utilizing the said 18 patents or while buying the technology from 19 another company? 20 21 Answer, in the second paragraph, indicates "to this end, the concerned firm has to enter into negotiations with the companies 23 holding patents in order to obtain licenses for 24 the use of the patented technology included in, 25 and essential for the implementation of an ETSI Heritage Reporting Corporation (202) 628-4888 1689 1 2 3 standard. THE INTERPRETER: I am going to translate that. 4 Just one second. 5 this because I think of something. I am referring to 6 MR. HICKERSON: Your Honor. 7 JUDGE LUCKERN: Mr. Hickerson? 8 MR. HICKERSON: Your Honor, I object 9 to this. Ms. Niemeyer has taken a document 10 that is in English with no translation for the 1 1 witness, called out a small portion of that 12 document. The witness doesn’t know what the 13 document is, what the context is, what the rest 14 of the document is. 15 the rule of completeness, the full context of 16 the document, and I object to this question. 17 He has no way to know, per JUDGE LUCKERN: Ms. Niemeyer, how do Do you want a ruling? 18 you respond? 19 want to rephrase? 20 objection? Do you Do you want to argue the 21 MS. NIEMEYER: 22 JUDGE LUCKERN: 23 MS. NIEMEYER: Well, I will respond. Go ahead. There is no requirement 24 that parties submit documents in a foreign 25 language. My object is not to confuse or Heritage Reporting Corporation (202) 628-4888 1690 1 mislead the witness. 2 And I haven’t even asked a question yet. JUDGE LUCKERN: 3 That‘s what I was 4 trying to find out, what was at issue. And 5 that’s why I was looking at the realtime. 6 me just read the realtime. We don’t have a 7 question yet. Let THE INTERPRETER: May I translate the 8 9 question again for him? 10 JUDGE LUCKERN: 1 1 Mr. Hickerson? MS. NIEMEYER: 12 13 Is there a question, I don’t think there is a question pending. JUDGE LUCKERN: 14 I am looking at the 15 realtime, Mr. Hickerson. 16 question. 17 document, but I don’t know where the question 18 is. I don’t see a She has read something from this So can we at least hear the question? MR. HICKERSON: We can. But I also 19 20 object to the use of the document in this 21 fashion. 22 JUDGE LUCKERN: Well, let’s get a 23 question so I know what I can do right now. 24 get your question up and then, Mr. Hickerson, 25 you can say I rely on what I just said and Heritage Reporting Corporation (202) 628-4888 So 1691 1 anything else. Do you understand what I am 2 saying, Ms. Niemeyer? 3 MS. NIEMEYER: 4 JUDGE LUCKERN: Yes. Go ahead. Right now, 5 actually, there doesn’t have to be a 6 translation. 7 question. Then we will see what Mr. Hickerson 8 said, without translating it. 9 sustain the objection, we can move on. Why don’t you finish your Because if I So go 10 ahead with whatever your question is going to 1 1 be. 12 BY MS. NIEMEYER: 13 Q. Do you agree, then, that according to 14 ETSI publicly available information, they 15 direct parties to negotiate to determine to 16 reach a license agreement? 17 18 JUDGE LUCKERN: Did you finish your question? 19 MS. NIEMEYER: 20 JUDGE LUCKERN: 21 stand by what you said? 22 MR. HICKERSON: Yes. Mr. Hickerson, do you I do, Your Honor. 23 I just want to point out, you know, why my 24 objection should be sustained here. 25 document is talking about that the members This Heritage Reporting Corporation (202) 628-4888 And 1692 1 don't pay money to ETSI for the licenses, that 2 they pay money to the license owner. 3 witness has no way of knowing what this 4 document is to know the context of what I know, 5 because I can read it in English. 6 And the If she is going to ask this question, 7 the witness needs to have the entire document 8 translated so that he understands what this 9 document says. 10 MS. NIEMEYER: Your Honor, during 11 Professor Boucobza's deposition, he was asked 12 do you speak English? 13 "Answer: I have a very average level 14 of English.Il I don't know that he needs to 15 have the whole document translated - - why he 16 would need to have the whole document 17 translated. I am asking a very simple question 18 about one portion of a document that's on a 19 publicly available web site of ETSI. 20 JUDGE LUCKEFW: Does he have available 21 the whole document in English? 22 MS. NIEMEYER: He has the whole 23 document available in front of him. 24 wants to review it to answer the question 25 asked, he is welcome to do so. I think it Heritage Reporting Corporation (202) 628-4888 If he 1693 1 would be a waste of the Court’s time because it 2 doesn‘t bear on the specific question asked. JUDGE LUCKERN: 3 Mr. Hickerson, I don’t 4 have any problem, I can ask the witness, you 5 know, whether he, by himself, looking at the 6 document, reading it and then do it. 7 know how much English he knows or not, 8 Mr. Hickerson. Do you have any comment you want to 9 10 make on what I am saying from the bench? MR. HICKERSON: 12 I don‘t I have nothing further to add to my objection, Your Honor. JUDGE LUCKERN: All right. Well, let 14 me ask the witness. I don’t know how much 15 English, and I want this witness comfortable. 16 And is the witness able to read this document to himself and understand it? 18 19 English. It is not translated. And I just don’t know. THE WITNESS: 21 (In English) I think that I understand the question. MR. HICKERSON: 23 It is all in Could I at least ask and make sure that the question at the top is read and translated to the professor? 25 I couldn’t even see it on the exhibit to begin Heritage Reporting Corporation (202) 628-4888 1694 1 2 3 with. JUDGE LUCKERN: You mean question 7 you want read? 4 MR. HICKERSON: Yes. 5 JUDGE LUCKERN: So you want him to 6 understand the question? And you have no 7 problem answering it? 8 says, Mr. Hickerson. 9 does he know what this question 7 itself says? That's what the witness And I will be glad to - - 10 It is sort of gray here. 1 1 It is a little hard for me to read. 12 THE WITNESS: 13 my document and I can read it. 14 Yes, I have it here on JUDGE LUCKERN: All right. 15 going to overrule the objection. 16 answer any way you want to. 17 THE WITNESS: Then I am Go ahead and Go ahead. Well, as far as I 18 understand it, this question 7 has nothing to 19 do with granting of the licenses. 20 with who is the entity to which I have to pay 21 the royalties. 22 statement which is highlighted, they don't tell 23 us here whether they are talking about ETSI 24 members or third parties. 25 It has to do Moreover, with regards to the If it has to do with third parties, Heritage Reporting Corporation (202) 628-4888 1695 1 meaning any company, of course they have to 2 negotiate with the patent holder because there 3 is no contract which binds it to the patent 4 holder. The existence of the obligation to 5 6 grant a license is only valid for the ETSI 7 members, which has nothing to do with this 8 question. THE INTERPRETER: Question on the 9 10 screen, he meant. 1 1 BY MS. NIEMEYER: Q. 12 Okay. Do you see anything in question or in this document that says it is limited 13 7 14 to, that the question and answer is limited to 15 non-ETSI members? 16 17 MR. HICKERSON: Before you answer, I have an objection. 18 JUDGE LUCKERN: I’m sorry. 19 MR. HICKERSON: I object to the 20 question as asked. Ms. Niemeyer is now asking 21 whether there is anything in this document - - 22 23 24 25 JUDGE LUCKERN: question. It is a double It is a compound question in a way. MR. HICKERSON: Yes. So I object to extent that the question goes beyond this Heritage Reporting Corporation (202) 628-4888 1696 1 question 7 , which she has focused the witness 2 on. 3 entire document before answering it, I would 4 ask that the witness be allowed to do that and 5 that the time be charged to InterDigital. If she does want the witness to read the JUDGE LUCKERN: 6 I certainly don't have 7 a problem with this witness reading the whole 8 document if he wants this question the way it 9 is. MS. NIEMEYER: 10 1 1 question, Your Honor. 12 I will withdraw the itself. JUDGE LUCKERN: Move on. 13 14 The document speaks for BY MS. NIEMEYER: Q. 15 Could you also take a look at question which is immediately above it, which is, 16 6, 17 Ildoes one have to take permission from ETSI for 18 using the patents as listed by ETSI in the 19 standard? 20 "Answer: It is necessary to obtain 21 permission to use patents declared as essential 22 to ETSI standards. To this end, each standard 23 user should seek directly a license from a 24 patent holder. 25 details of a patent holder, please make your In order to obtain the contact Heritage Reporting Corporation (202) 628-4888 1697 1 request to the ETSI legal service.Il 2 Do you see that? 3 A. Yes. 4 Q. So according to that question and 5 answer, this ETSI FAQ, frequently asked 6 question, is directing anyone who uses a 7 standard to contact the patent holder who has 8 declared it as essential to ETSI, correct? JUDGE LUCKERN: 9 10 I am not sure, Mr. Hickerson, whether you have an objection or what. 12 MR. HICKERSON: I thought we would 13 have the translation, and then I would state my 14 ob] ection. 15 JUDGE LUCKERN: All right. Okay. 16 Translate it and then I don’t want to hear from 17 the witness, we will hear what the lawyer has 18 to say. Go ahead, translate it. 19 Mr. Hickerson. MR. HICKERSON: Yes, Your Honor. My 21 objection is that Ms. Niemeyer has now put the 22 text of this document on the screen, she has 23 read it to the witness and she has recharacterized in her own words what the 25 document says. And then asked the witness Heritage Reporting Corporation (202) 628-4888 1698 whether he agrees with it. I think that’s improper. 2 I think that 3 if she wants to ask the witness what his 4 understanding of the text of this document is, 5 that’s one thing, but I do not think that it is 6 proper for her to be asking, putting the words 7 into this witness‘s mouth, through a 8 translator, and asking him whether or not he 9 agrees with her tortured interpretation of the 10 document. JUDGE LUCKERN: How do you respond? MS. NIEMEYER: 11 I am cross-examining 13 the witness, Your Honor. 14 or not agree with my question. He is an expert 15 and I think he can answer the question. JUDGE LUCKERN: 16 He is free to agree I am going to overrule the objection. He has been qualified as an 18 19 expert. It has been translated into French. So let’s hear what he has to say. will have your opportunity for redirect. 21 You So do we have to translate it again or does he remember what the question is? 23 THE WITNESS: I remember the question. JUDGE LUCKERN: 25 Thank you very much. Go ahead. Heritage Reporting Corporation (202) 628-4888 1699 THE WITNESS: Well, first, this question and this answer, they are not ETSI rules. And they do not have a binding force. My second comment, the general nature of this question, and this also was with - - regarding to the preceding question, the general nature of these questions, makes us think that we have 8 to do with questions that concern third parties 9 to ETSI. And then the answer, which is given 10 1 1 here, which simply states that you have to have 12 the permission of the patent holder, that is 13 totally acceptable. 14 declaration to ETSI of your essential patent, I 15 mean, the patent holder of the essential patent 16 accepts that the other ETSI members might 17 benefit from a license. 18 agreement that the license was granted. 19 BY MS. NIEMEYER: 20 Q. In fact, if you make a So it is with his I just have a couple more questions on 21 the Samsung confidential record. 22 JUDGE LUCKERN: All right. We’re on 23 the confidential record. 24 it? 25 MS. NIEMEYER: Whose information is Samsung’s. Heritage Reporting Corporation (202) 628-4888 1700 JUDGE LUCKERN: Okay. Anybody not 2 associated with Samsung, not subscribed to the 3 protective order has to leave the hearing room. 4 5 (Whereupon, the trial proceeded in confidential session.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 Heritage Reporting Corporation (202) 628-4888 1705 O P E N 1 2 3 S E S S I O N BY MS. NIEMEYER: Q. Professor Boucobza, you have never 4 seen any of InterDigital’s offers to Samsung to 5 license, have you? 6 A. No, never. 7 Q. And you have never seen any of 8 Samsung’s offers to InterDigital to license, 9 correct? 10 1 1 A. No, no, that wasn’t necessary for me to establish my report. 12 MS. NIEMEYER: 13 questions, Your Honor. 14 Boucobza. anything? MR. LEVI: 17 18 JUDGE LUCKERN: Fine, fine, no problem. EXAMINATION BY COUNSEL FOR ITC STAFF 21 22 I do, Your Honor, very briefly. 19 20 Thank you, Professor JUDGE LUCKERN: Mr. Levi, do you have 15 16 I have no more BY MR. LEVI: 23 Q. Good afternoon, Professor. 24 A. Good afternoon. 25 Q. I would like to return to Heritage Reporting Corporation (202) 628-4888 1706 Ms. Niemeyer's questioning of you and, in particular, I would like to return to her - - do you recall when she showed you a portion of 4 your deposition transcript? 5 A. Yes. 6 Q. And then do you recall when she asked 7 you a question about going to court? 8 Do you recall generally that question? 9 A. Yes. 10 Q. And your response to Ms. Niemeyer's 1 1 question was it was up to the party seeking a 12 license to dispute the price before the owner 13 of the patent, and to do this before going to 14 court. 15 Do you recall giving that response? It is, indeed, the burden of the A. 16 licensee to dispute the price that is fixed by 17 the patent holder, and he has to bring this 18 dispute before the Court, if there was no 19 agreement between the parties. 20 Q. And the IhI you referred to in your Iel 21 response, under ETSI rules, does the I h l refer tel 22 to the patentee or the party seeking the 23 license? 24 A. 25 I'm going to clarify. seeking the license. It is the one The license is concluded Heritage Reporting Corporation (202) 628-4888 1707 1 before there has been an agreement on the 2 price. 3 to the price, the price is then unilaterally 4 defined by the patent holder. If there is no agreement with regards And this price fixing is done while 5 It is the contract - - 6 the license is executed. 7 the license which is the contract to execute. 8 And so the licensee, the beneficiary of the 9 license, if the beneficiary of the license does 10 not accept the price, which is fixed, has the 1 1 burden to show in court that this price is 12 abusive. 13 Q. 14 Okay. I appreciate that - - that response, Professor. And I think you did - - you did state, 15 16 at least I understood you to state that the 17 burden to go to court lies on the party seeking 18 the license as opposed to the patentee. 19 that correct? Is 20 A. That's correct. 21 Q. Thank you. 22 A. And under French law, this is looked 23 24 25 Now - - upon as an advantage to the patent holder. Q. Okay. NOW, when the - - assuming the situation where the party who is seeking a Heritage Reporting Corporation (202) 628-4888 1708 1 license goes to court, what question would that 2 party ask the court to answer? 3 A. This party would have to prove that 4 the price is abusive. Meaning that the price 5 is too high. 6 examples of cases how one can judge if a price 7 is abusive. 8 9 10 Q. And case law shows with certain Do ETSI rules contemplate that in place of the party seeking the license going to court to seek an answer to the question you just described, do ETSI rules contemplate an 12 action by the patentee in court asserting 13 infringement of their patent? 14 MS. NIEMEYER: Objection, Your Honor, 15 this is outside the scope of Professor 16 Boucobza’s expert report. 17 18 19 20 21 JUDGE LUCKERN: want to respond? MR. LEVI: It is certainly within the scope of Ms. Niemeyer’s cross-examination. MS. NIEMEYER: JUDGE LUCKERN: 23 Mr. Levi, how do you I disagree. Did I hear you say something? 24 MS. NIEMEYER: 25 MR. LEVI: I disagree. I think it is squarely Heritage Reporting Corporation (202) 628-4888 1709 1 within the scope, Your Honor. JUDGE LUCKERN: 2 3 Mr. Hickerson, what is your position on the objection? MR. HICKERSON: We do not support the 4 5 objection, Your Honor. 6 MS. NIEMEYER: 7 It is also leading, Your Honor. 8 JUDGE LUCKERN: Where do we stand on 9 the leading with respect to Mr. Levi and this 10 witness. Is he a hostile witness to you and 1 1 Mr. Levi? I would have to go back to your 12 prehearing statement and see. MR. LEVI: 13 Your Honor, if the rule 14 we’re following is on an issue by issue basis, 15 then I believe I‘m aligned with Samsung on the 16 issue related to this particular witness’s 17 testimony. JUDGE LUCKERN: 18 It would be rule by 19 rule, I mean, issue by issue, yes. Let me just 20 - - you indicated, Mr. Levi, that it is 21 certainly within the scope - - well, wait a 22 minute. I am going to then sustain the 23 24 objection on the leading nature of it. 25 ahead. Heritage Reporting Corporation (202) 628-4888 Go 1710 MR. LEVI: 1 I will be happy to 2 rephrase, Your Honor. 3 BY MR. LEVI: 4 5 Q. Do ETSI rules - - strike that. Professor, you described an action 6 that a potential licensee can bring under ETSI 7 rules. My question is, do ETSI rules 8 contemplate a patentee bringing an action for 9 patent infringement? 10 11 12 MS. NIEMEYER: Objection, Your Honor, that‘s the same question. MR. LEVI: I don’t believe that So if it is the same 13 question is leading. 14 question, then I don‘t think the first question 15 was leading. 16 17 18 JUDGE LUCKERN: And the basis for your objection? MS. NIEMEYER: I think - - still think 19 it is leading, and I also dispute that it is 20 within the scope of Professor Boucobza’s expert 21 report or cross-examination. 22 MR. LEVI: I am asking him if ETSI 23 rules provide for a certain scenario. 24 either yes or no. 25 It is They do or they don’t. JUDGE LUCKERN: Okay. Let me just go Heritage Reporting Corporation (202) 628-4888 1711 to the other area that Ms. Niemeyer raised. MR. LEVI: 2 It was the same basis that 3 Your Honor did not find merit to, within the 4 scope. JUDGE LUCKERN: 5 6 the objection. You can answer that. THE WITNESS: 7 I am going to overrule The answer is no. There 8 is no objection for infringement of the 9 license. But the response, according to French 10 law, is, in reality, quite simple. When there was a contract between 11 12 parties, then you are immediately not in the framework, in the context anymore of 14 infringement. Then you are in a context of a 15 case which can result by contract. 16 example, it can result in a lawsuit with 17 regards to the price. And then measures are taken, are 18 19 executed in order to obtain price. 21 For -- to change that But this has only to do with contract law, the domain of contract law. This has nothing to do with infringement. 23 24 25 MR. LEVI: Thank you, Professor. Nothing further. JUDGE LUCKERN: You are finished? Heritage Reporting Corporation (202) 628-4888 1712 1 Redirect, Mr. Hickerson? MR. HICKERSON: 2 REDIRECT EXAMINATION 3 4 5 Yes, Your Honor. BY MR. HICKERSON: Q. Professor, with respect to the last 6 answer you just gave, when the interpreter 7 interpreted, she said infringement of the 8 license. 9 patent, didn’t you? I think you said infringement of the 10 A. (In English) Of the patent. 11 Q. Okay, thank you. Professor, Ms. Niemeyer asked you some 12 13 questions about an ETSI frequently asked 14 questions document. 15 remember those questions? 16 question 7. It was CX-816. Do you Question 6 and 17 NOW - - 18 MR. HICKERSON: Please interpret. 19 THE WITNESS: 20 21 Yes, absolutely. BY MR. HICKERSON: Q. Okay. Now, to the extent that there is anything inconsistent with those frequently asked questions with the ETSI IPR policy, which 24 25 would control? A. There is no possible dispute. Heritage Reporting Corporation (202) 628-4888 Those 1713 1 questions and answers have absolutely no legal 2 value. 3 and would control any question. Q. 4 So only the ETSI IPR policy is valid Okay. And one last area I want to 5 talk to you about is Ms. Niemeyer asked you 6 whether the licenses under section 6 . 1 had to 7 be done on a patent by patent basis. 8 remember those questions? Do you 9 A. Yes, absolutely. 10 Q. Now, if an ETSI member made a 1 1 declaration of essential patents under section 12 4.1 13 number of patents, that would be okay, wouldn’t 14 it? that included more than one patent, a MS. NIEMEYER: 15 16 Your Honor. 17 Objection, leading, BY MR. HICKERSON: 18 Q. Would that be okay? 19 JUDGE LUCKERN: Wait a minute now. 20 MR. HICKERSON: I am just trying to 21 hurry things along, Your Honor. 22 focus the question on Ms. Niemeyer’s questions. 23 24 25 MS. NIEMEYER: I am trying to I have no objection to hurrying things along in accordance with - JUDGE LUCKERN: Right now we had a Heritage Reporting Corporation (202) 628-4888 1714 1 question and you said objection, leading. And 2 then the question was, would that be okay? 3 I am just not sure. MR. HICKERSON: 4 And I was making the 5 question open-ended, Your Honor, with that 6 phrase. JUDGE LUCKERN: Why can’t you rephrase 7 8 it in some way? 9 BY MR. HICKERSON: 10 Q. Would it be okay, Professor - - I will 11 rephrase. Would it be okay, Professor, if a 12 party that held multiple patents that it 13 thought were essential, to make a declaration 14 under section 4.1 that included all of those 15 patents in a single declaration? 16 MS. NIEMEYER: 17 JUDGE LUCKERN: 18 suggests an answer. 19 objection. 20 Objection, leading. I am not sure that expert here. 21 I am going to overrule the You can answer that. THE WITNESS: We have an Well, on section 4.1 of 22 the rules is pointing towards one essential 23 patent and not a whole regrouping of patents. 24 MR. HICKERSON: Thank you. 25 JUDGE LUCKERN: You are finished, Heritage Reporting Corporation (202) 628-4888 1715 1 Mr. Hickerson? 2 MR. HICKERSON: Yes, I am. 3 JUDGE LUCKERN: What about exhibits? 4 Everybody happy or should we go off the record? 5 I don’t want to have argument going back and 6 forth. MS. NIEMEYER: 7 8 to Mr. Levi’s examination? JUDGE LUCKERN: 9 10 May I briefly respond Yes, you may. But you mean with further questions of this witness, Ms. Niemeyer? Is that what you want to do? MS. NIEMEYER: I want to, I guess, 13 either redirect or cross in response to Mr. 14 Levi. 15 JUDGE LUCKERN: 16 witness more questions? 17 18 19 MS. NIEMEYER: You want to ask this Yes, in response to Mr. Levi’s questions. JUDGE LUCKERN: We will go around 20 again then. You are not going to have the last 21 say, that‘s for sure. 22 the staff and Mr. Hickerson. 23 going to end up. 24 Mr. Hickerson, you have another crack, based on 25 what you hear now. But then we will have Mr. Hickerson is So I will let you do it. Heritage Reporting Corporation (202) 628-4888 1716 MR. HICKERSON: 1 RECROSS-EXAMINATION 2 3 4 Thank you, Your Honor. BY MS. NIEMEYER: Q. Professor Boucobza, in response to Mr. 5 Levi's question, you indicated that the license 6 is concluded before the price is agreed upon. 7 Do you recall that? 8 A. Yes, absolutely. 9 Q. I just want to refer you to your 10 deposition transcript, page 40, line 1 7 , through 41, line 5 which reads: - IIQuestion: So basically until the 13 implementing contract is signed, or the 14 license, an ETSI member does not have a license 15 to practice patents that have been declared to 16 ETSI; is that correct? 17 IIAnswer: Yes, that is correct, that 18 means that it does not have a license in order 19 to be able to use the patent. 20 hand, as of the moment the declaration exists, 21 there is an obligation for the patent owner or 22 holder to grant a license under contract - - 23 under the contractual conditions." On the other 24 JUDGE LUCKERN: Are you finished? 25 MS. NIEMEYER: With that question, Heritage Reporting Corporation (202) 628-4888 1717 yes. JUDGE LUCKERN: translate that, Lily? 4 Do you want to The witness understands it? THE INTERPRETER: No, I am going to 5 6 translate it. I’m sorry, I am going to 7 translate it. He needs the translation. 8 started at line 17, Ms. Niemeyer? 9 MS. NIEMEYER: 10 JUDGE LUCKERN: 11 MS. NIEMEYER: Yes. So it is translated. What is your question? 12 It I don’t have a 13 question. Basically, he just gave 14 contradictory testimony in his deposition from 15 today. 16 MR. HICKERSON: Your Honor - - 17 JUDGE LUCKERN: Wait a minute. We 18 read it in and I don’t have a question - - well 19 -- 20 MS. NIEMEYER: 21 JUDGE LUCKERN: contradictory. He had stated - - sorry. You say it is But let’s have a question. 23 you agree with this today or something? 24 Do BY MS. NIEMEYER: 25 Q. So you stated to Mr. Levi that you can Heritage Reporting Corporation (202) 628-4888 1718 1 conclude the license before the price is agreed 2 upon, whereas in your deposition, you must have 3 a price to have a license? 4 A. No, as you can see from the response I 5 gave to your question, I never said that the 6 price was necessary to conclude the license. 7 only state that there needs to be a license 8 contract. And on this point, case law is very 9 clear. The license contract - - I mean, the 10 11 I contract is concluded independently of the fixing of the price. And this, according to 13 the decisions of the Supreme Court of the 1st 14 of December, 1995, which were earlier 15 mentioned. In other words, the price is not a 16 17 necessity in order to conclude a valid contract 18 license. 19 concluded before the price is determined. 20 not believe having said anything else. 21 Q. The license already exists, was I do But that is your - - the testimony that I just read was the testimony you gave at your 23 24 25 deposition, correct? A. Yes, that’s correct, and, again, I approve completely with what I said in my Heritage Reporting Corporation (202) 628-4888 1719 1 answer. 2 Q. Okay. And you also indicated in 3 response to Mr. Levi’s question that a patentee 4 may not sue for patent infringement on a patent 5 that’s been declared essential to ETSI. 6 recall that? 7 Do you Yes, that’s correct, but with regards A. 8 to ETSI members, not with regards to third 9 parties. 10 Q. Okay. So, for example, if Samsung 1 1 sued Ericsson for infringement of patents that 12 it had declared essential to Sony or to ETSI, 13 that would be a violation of French law, 14 correct? 15 JUDGE LUCKERN: Mr. Hickerson? 16 MR. HICKERSON: I object, Your Honor. 17 This is an incomplete hypothetical. 18 could be, you know, many other factors involved 19 and I don’t think that the question is 20 appropriate. 21 22 23 There JUDGE LUCKERN: Ms. Niemeyer, how do you respond? MS. NIEMEYER: I think he is an expert 24 and he testified what an ETSI member can do, 25 having declared its patents essential to ETSI. Heritage Reporting Corporation (202) 628-4888 1720 1 2 It is just changing the names of the parties. JUDGE LUCKERN: I am going to overrule 3 the objection. 4 expert. He seems to be doing a great job, as 5 all witnesses do. 6 want to translate it again? 7 8 9 He has been qualified as an You may answer that. THE WITNESS: (In English) Do you No. (In French) The question is very vague. JUDGE LUCKERN: Well, wait a minute. Well, if you don’t The question is very vague. understand it or it is ambiguous or something, 12 sir, you can just tell me that. And I will - however you want to do it. But if you feel you 14 can answer it, but you want to qualify it in 15 some way, you can do that. 16 qualified as an expert. You have been However you want to - - you are the king right there in that box. 18 19 20 21 do you want to do? THE WITNESS: 24 25 I am going to specify the hypothesis. JUDGE LUCKERN: MS. NIEMEYER: 23 What All right, fine. I don’t know what he is going to say. JUDGE LUCKERN: Wait a minute now. Well, I know you don’t know what to say. Heritage Reporting Corporation (202) 628-4888 I’m 1721 1 sure he didn’t go up to you and tell you what 2 he is going to say. 3 witness - - go ahead. Ms. Niemeyer opened it, 4 you go ahead and say whatever you want to and 5 we will see what Ms. Niemeyer does. I am going to let the THE WITNESS: 6 Go ahead. If the patent is used so 7 that Samsung or Ericsson, I don’t remember the 8 name of the party in your hypothesis, expressed 9 a will to exploit the license, then according to the application of 6 . 1 , 11 article 6.1, there it is not possible that there is infringement. On the other hand, if the patent is used without having requested the benefit of a 14 license, then the situation is totally 15 different because the one who exploits then the 16 license is not in the place of the licensee. 17 And then you could talk about infringement. 18 But only in that context, in that situation. 19 MS. NIEMEYER: 20 JUDGE LUCKERN: Are you finished? 21 MS. NIEMEYER: Yes, thank you, Your 22 Okay, thank you. Honor. JUDGE LUCKERN: 24 25 Mr. Levi, do you have anything you want to do? MR. LEVI: Thank you, Your Honor, Heritage Reporting Corporation (202) 628-4888 1722 1 nothing further. JUDGE LUCKERN: 2 3 MR. HICKERSON: Nothing further, Your JUDGE LUCKERN: All right. Honor. 6 7 to release this witness. 8 problems with that? 9 going to. I am going If nobody has any If you do or not, I am Thank you very much. THE WITNESS: 10 Thank you, Your Honor. JUDGE LUCKERN: 12 You have the last say. 4 5 Mr. Hickerson? back to Paris. Have a pleasant trip I wish I could go with you, not just leave, go to Paris. That would be 14 fantastic. Where do we go? 15 Stay here if you want to. Your Honor - - 16 MS. NIEMEYER: 17 JUDGE LUCKERN: Wait a minute. We 18 have exhibits. You better wait a bit. Sorry, 19 sorry. Why don’t you - - is there agreement on 20 these exhibits or what? MR. HICKERSON: We’re about to find 22 23 out, Your Honor. JUDGE LUCKERN: Off the record. (Discussion off the record.) 25 JUDGE LUCKERN: Back on the public Heritage Reporting Corporation (202) 628-4888

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