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
(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 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
(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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?