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)

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
[phone]

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
[phone]

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
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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

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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.

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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

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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

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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

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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

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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.

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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?

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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

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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

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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

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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

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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.

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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.

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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?

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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

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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

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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.

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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

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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

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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?

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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

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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.

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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

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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

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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?

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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

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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.)

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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

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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

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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

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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
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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
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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 discussions.tt

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
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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
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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
[phone]

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
[phone]

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
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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
[phone]

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
[phone]

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
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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
[phone]

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
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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
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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
[phone]

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.

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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

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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?

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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.

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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

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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,

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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.

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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,

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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

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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

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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.

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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.

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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,

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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

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