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

Filing 663

EXHIBITS re 660 Administrative Motion to File Under Seal Apple Inc.'s Notice of Motion and Motion for Partial Summary Judgment Exhibits to Mueller Declaration ISO Apple's Motion for Partial Summary Judgment [660-9] filed byApple Inc.(a California corporation). (Attachments: # 1 Exhibit Mueller Decl Exhibit 43, # 2 Exhibit Mueller Decl Exhibit 44, # 3 Exhibit Mueller Decl Exhibit 45, # 4 Exhibit Mueller Decl Exhibit 46, # 5 Exhibit Mueller Decl Exhibit 47, # 6 Exhibit Mueller Decl Exhibit 48, # 7 Exhibit Mueller Decl Exhibit 49, # 8 Exhibit Mueller Decl Exhibit 50, # 9 Exhibit Mueller Decl Exhibit 51, # 10 Exhibit Mueller Decl Exhibit 52, # 11 Exhibit Mueller Decl Exhibit 53, # 12 Exhibit Mueller Decl Exhibit 54, # 13 Exhibit Mueller Decl Exhibit 55, # 14 Exhibit Mueller Decl Exhibit 56, # 15 Exhibit Mueller Decl Exhibit 57, # 16 Exhibit Mueller Decl Exhibit 58, # 17 Exhibit Mueller Decl Exhibit 59, # 18 Exhibit Mueller Decl Exhibit 60, # 19 Exhibit Mueller Decl Exhibit 61, # 20 Exhibit Mueller Decl Exhibit 62, # 21 Exhibit Mueller Decl Exhibit 63, # 22 Exhibit Mueller Decl Exhibit 64, # 23 Exhibit Mueller Decl Exhibit 65)(Related document(s) 660 ) (Selwyn, Mark) (Filed on 1/25/2012)

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Mueller Exhibit 52 UNITED STATES INTERNATIONAL TRADE COMMISSION In the Matter of: Investigation No. CERTAIN 3G WIDEBAND CODE 337-TA-601 DIVISION MULTIPLE ACCESS WCDMA) MOBILE HANDSETS AND COMPONENTS THEREOF -"::::~: OPEN SESSION Pages: 1459 through 1880 Place: Washington, D.C. Date: July II, 2008 (with excerpts) HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D. C. 20005 (202) 628-4888 ORIGINAL APLNDC-WH-A0000022865 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 10 Hearing Room B 11 12 United States 13 14 International Trade Commission 500 E Street, Southwest 15 Washington, D.C. 16 17 Friday, July II, 2008 18 19 VOLUME IV 20 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 APLNDC-WH-A0000022866 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 APLNDC-WH-A0000022867 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 8 11855 Freedom Drive 9 Two Freedom Square 10 Reston, VA 20190-5675 11 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 & Manges LLP 18 201 Redwood Shores Parkway 19 Redwood Shores, CA 94065 20 21 22 GARLAND T. STEPHENS, ESQ. 23 - DAVID J. HEALEY, ESQ. Weil, Gotshal & Manges LLP 24 700 Louisiana Street, Suite 1600 25 Houston, TX 77002 Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022868 1462 1 For Respondent Samsung: 2 DAVID A. HICKERSON, ESQ. 3 DAVID N. SOUTHARD, ESQ. 4 Weil, Gosthal & Manges LLP 5 1300 Eye Street, N.W, 6 Washington, D.C. 20005 Suite 900 7 8 For ITC Staff: 9 BENJAMIN LEVI, ESQ. 10 THOMAS FUSCO, ESQ. 11 MATTHEW COX, Summer Intern 12 U.S. International Trade Commission 13 500 E Street, S.W. 14 Washington, D.C. 20436 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 E Street, S.W. 23 Washington, D.C. 20436 24 25 *** Index appears at end of transcript *** Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022869 1463 PRO C E E DIN G S 1 (8:30 a.m.) 2 JUDGE LUCKERN: 3 This is day four in 4 the evidentiary hearing in the matter of 5 Certain 3G Wideband Code Division Multiple 6 Access (WCDMA) Mobile Handsets and Components 7 Thereof, Investigation Number 337-TA-601. 8 9 Before we start the cross-examination of Mr. Merritt, who wants to report on the 10 times for yesterday? 11 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 41 15 minutes. JUDGE LUCKERN: 16 17 And And that's the total, correct? 18 MR. POWERS: 19 JUDGE LUCKERN: 20 total. 21 Okay. That is cumulative. Obviously it is the It could not be anything but the total. All right. Come on there, Mr. Powers. 22 MR. POWERS: 23 and was, it wasn't that long. 24 25 As long as yesterday felt JUDGE LUCKERN: Let's hope this is going to be a short cross. No. You take all Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022870 1624 JUDGE LUCKERN: 1 2 Well, so you are ready to call the next witness? 3 MR. POWERS: 4 JUDGE LUCKERN: We are. Who is it going to be? 5 I have got your appendix 9 here to your 6 prehearing statement. So what is going to -- 7 MR. POWERS: Mr. Kowalski. 8 will conduct the examination. JUDGE LUCKERN: 9 All right. Mr. John 10 Kowalski. 11 the second? 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? I guess it It will be quite short, about 15 minutes or less. JUDGE LUCKERN: 18 19 Who is going to be And with him, how much time do you MR. POWERS: 16 17 He is the first. Ms. Mehta out. Maybe we can get him 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 APLNDC-WH-A0000022871 1625 1 B-o-I-o-u-r-c-h-i? 2 MR. POWERS: It is B-o-u-c-o-b-z-a. 3 JUDGE LUCKERN: I'm sorry. 4 wrong name here. 5 I have the Where is he on appendix 9, Mr. Powers or somebody on your team? 6 MR. POWERS: 7 JUDGE LUCKERN: 8 I will find it. Can you tell me what page it is? MR. POWERS: 9 We don't have it here. JUDGE LUCKERN: 10 11 Xavier Boucobza. 12 I have it. Professor And his area of expertise is French law, on page 9. 13 MR. POWERS: 14 JUDGE LUCKERN: 15 That's it, Your Honor. 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. 21 22 25 I compliment you people. Respondents, who is going to do any cross-examination of Mr. Kowalski? MR. LAVENUE: 23 24 So, all right, we're doing Lionel Lavenue, Your Honor. JUDGE LUCKERN: All right. Do Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022872 1649 AFTERNOON SESSION 1 (12:53 p.m.) 2 JUDGE LUCKERN: 3 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 & Manges for the Samsung 8 Respondents. 9 Boucobza. We call Professor Xavier 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 And we Your Honor, we have a translator, Lily Olm. JUDGE LUCKERN: 15 Do you have a card? 16 Could I have it, please? 17 about a check translator? 18 do not? 19 MS. NIEMEYER: 20 JUDGE LUCKERN: Did I hear something Do we have one? We No. We're on the public 21 record. What I usually do is put the witness 22 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. 25 what Lily will say, but we will see. And I don't know That's Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022873 1650 1 all I do. And it is on the record and we leave 2 it like that. So who -- we have Ms. Niemeyer. 3 Okay. 4 So, Professor, do you want to raise your right 5 arm, please. 6 Whereupon-- 7 XAVIER BOUCOBZA, 8 having been first duly sworn, was examined and 9 testified through the interpreter as follows: 10 THE INTERPRETER: 11 JUDGE LUCKERN: Yes, I swear to God. 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 14 -- I hope 16 you don't mind me putting this in the record, 17 do you? She has a place at 7718 Lily? 18 THE INTERPRETER: 19 JUDGE LUCKERN: 20 22003. 21 703-862-2456. 22 No problem. Annandale, Virginia, And she has something about voice, translation, won't you? Lily, you will make an accurate 23 THE INTERPRETER: 24 JUDGE LUCKERN: 25 I will do that. All right. That's wonderful. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022874 1651 1 (Discussion off the record.) 2 JUDGE LUCKERN: I believe I heard 3 Complainant's counsel say something. 4 you say, Ms. Niemeyer? 5 MS. NIEMEYER: What did 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: 11 JUDGE LUCKERN: 12 card. 13 Yes, I do. And I have Lily's I read it into the record. Off the record. 14 (Discussion off the record.) 15 JUDGE LUCKERN: Back on the public 16 record. I have given the card to Karen. 17 may need it for the transcript, et cetera, et 18 cetera. 19 Let's ask your first question, counselor. So that's where we stand. MR. HICKERSON: 20 23 24 25 All right. 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 APLNDC-WH-A0000022875 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? 11 A. Yes, absolutely. 12 13 14 15 That is my witness statement. Q. And did you prepare this witness statement? A. Yes, I prepared it myself. 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 APLNDC-WH-A0000022876 1653 1 RX-2791. MR. HICKERSON: 2 3 Is it in this book? 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 One binder, Your JUDGE LUCKERN: 7 I have it here, all Honor. 9 10 right. Yes. I have before me the witness 11 statement of Professor Xavier Boucobza that 12 speaks for itself. 13 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. It indicates his high 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 APLNDC-WH-A0000022877 1654 JUDGE LUCKERN: 1 All right. 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. 5 BY MR. HICKERSON: 6 7 8 9 10 11 12 Q. Go ahead, counselor. Professor, have you been asked to render any expert opinions in this case? A. Yes, I was asked by Samsung to render my expert opinion in this case. Q. Can you state what the questions that you were asked to render opinions on were? A. Two questions were asked of me. 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 Q. 18 please. 19 20 Nate, could you just pull up RDX-21, 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. Go ahead, What is the basis for your objection? Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022878 1655 MS. NIEMEYER: 1 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: 9 10 Mr. Hickerson, how do you want to respond? MR. HICKERSON: 11 We're not seeking to 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. 17 That is his opinion. 18 have him testify to it. MS. NIEMEYER: 19 20 I can certainly We don't object if that second square on the RDX is redacted. 21 JUDGE LUCKERN: 22 the transcript, please. 23 5, that is page 5 of the RX-2791? 24 page 5. 25 MS. NIEMEYER: Well, let me just read This portion of page You said It is an excerpt from Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022879 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. A. Yes. Can you tell me what ETSI is? 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 It has been created by Objection, Your Honor, 16 move to strike as outside -- objection, Your 17 Honor, I move to strike that response as 18 outside the scope of his expert report. 19 not provide that detail on what ETSI is in his 20 report. 21 JUDGE LUCKERN: 22 respond, Mr. Hickerson? 23 MR. HICKERSON: He did How do you want to Your Honor, I am 24 simply establishing the foundation for the 25 witness's testimony. He certainly provided Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022880 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 11 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 APLNDC-WH-A0000022881 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. 12 JUDGE LUCKERN: 13 It is taken down. 14 All right. Thank you. BY MR. HICKERSON: 15 Q. Go ahead, Mr. Hickerson. Professor, I would like you to look 16 at 17 the documents that govern ETSI? 18 first, A. Yes. let me ask you, have you looked at In order to prepare my report, 19 had to look over the documents that govern 20 ETSI. 21 Q. I 22 Could you take a look at Exhibit RX-2083, please. 23 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 APLNDC-WH-A0000022882 1659 1 2 Okay. Q. 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 APLNDC-WH-A0000022883 1660 1 A. Yes, according to article 6.1, those 2 licenses should be granted fairly, 3 and nondiscriminatory. 4 Q. reasonable, 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 11 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 APLNDC-WH-A0000022884 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 10 11 12 13 the framework agreement. 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 APLNDC-WH-A0000022885 1662 1 2 valid contract? Yes. A. 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. 7 on the 1st of December, '95 decided upon 8 validity of such a framework agreement. 9 Four This Supreme Court Professor, could you turn to Q. 10 Exhibit RX-508, please. 11 MR. HICKERSON: Your Honor, this is a 12 case that's in French, we have attached a 13 certified translation in English as part of the 14 exhibit. 15 exhibit, please. 16 17 Nate, could you turn to page 4 of the JUDGE LUCKERN: don't you, Ms. Niemeyer? 18 MS. NIEMEYER: 19 JUDGE LUCKERN: 20 You have it there, 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 APLNDC-WH-A0000022886 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 11 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. 16 to certain of its patents? 17 A. sorry, section 6.1 with respect Yes, absolutely. Certain declarations 18 were given to me before I started authoring my 19 expert report. 20 Q. Now, once InterDigital made these 21 declarations, was it obliged to offer a license 22 to ETSI members to the patents that it included 23 in its declaration? 24 25 MS. NIEMEYER: Objection, Your Honor. The professor did not opine on the specific Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022887 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. 17 staff opposes the objection. JUDGE LUCKERN: 18 So the 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. The question -- off the record. THE INTERPRETER: I have it. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022888 1665 JUDGE LUCKERN: 1 2 public record. 3 question. Back on the The translator has the Go ahead, please. THE WITNESS: 4 Go ahead. 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 11 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 Q. It is the patent holder who needs Now, can the patent holder here, InterDigital, set any price it wants? 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: 19 25 A. Q. And then, second, they are Nate, can you pull up RDX-19. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022889 1666 1 Professor, you said there was limitations 2 imposed by the contract. 3 limitations those are? 4 MS. NIEMEYER: 5 JUDGE LUCKERN: 6 7 Can you tell us what Objection. 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 11 demonstrative exhibit. It is supported by the 12 testimony he just gave and the testimony he 13 will give. 14 line with the ground rules in this case 15 concerning proper demonstrative exhibits. And it is, I think, completely in 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 APLNDC-WH-A0000022890 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 11 it, Your Honor. JUDGE LUCKERN: 12 13 inclined to what? MR. LEVI: 14 15 You said you are not I am not supporting the objection, Your Honor. JUDGE LUCKERN: 16 All right. 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 APLNDC-WH-A0000022891 1668 1 given answers about contract and French law. I 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. At this point, I am merely using a 5 6 demonstrative. I believe that's exactly what 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 10 record. And this is what this is. 11 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. 15 yet. 16 the objection. 17 opportunity for cross, Ms. Niemeyer. 18 overruling the objection. 19 question. 20 Demonstratives are not in In any event, no, I am going to overrule And you will have the I am He can answer the 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 APLNDC-WH-A0000022892 1669 1 read it? MR. HICKERSON: 2 Your Honor, I would 3 restate the question at this point. 4 I am not sure there was a question pending. 5 JUDGE LUCKERN: 6 little phrase in it or something. 7 only reason many times I want to read it 8 because I find attorneys, not purposely -- but 9 go ahead. 10 11 Don't put another That's the BY MR. HICKERSON: Q. Professor, you said that there were 12 limitations on setting the price imposed by 13 contract. 14 those limitations are? 15 A. Can you tell me what in this case The limitations are a direct result 16 from article 6.1. 17 this article, the price needs to be fair, 18 reasonable and nondiscriminatory. 19 Q. Because of what is said in 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 It is a firm obligation. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022893 1670 1 And you also said there were Q. 2 limitations under French law that applied here. 3 Can you tell us what those are? 4 Yes. A. There are two restrictions. 5 First of all, the holder of an essential patent 6 needs to fix this price in good faith. 7 notion of good faith results directly from the 8 code, from the civil code. The 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 please. 15 Now, can you turn to Exhibit RX-545, Q. 14 And the A. 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 Professor, do you recognize this Q. 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 It is Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022894 1671 1 here with regards to the four decisions which 2 were pronounced by the Supreme Court. 3 And is this a source that you have Q. 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. Professor, under French law, if the Q. 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. 20 That's the Can you just pull that up, And if you could just focus on article 21 6.1. In particular, the last sentence of 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 APLNDC-WH-A0000022895 1672 1 2 3 Have you looked at that section of 6.1? 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 11 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 APLNDC-WH-A0000022896 1673 1 That would be a violation of article A. 2 6.1. It said that only essential patents are 3 subject of that article and the obligation to 4 grant licenses has only to do with the 5 essential patents. 6 Q. 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 11 patents, would that comport with InterDigital's 12 ETSI obligations? So, Professor, if InterDigital's MS. NIEMEYER: 13 14 Nate, could you pull up RDX-20, Objection, lack of foundation, leading by this demonstrative. JUDGE LUCKERN: 15 Do you want a ruling? 16 Do you want to lay some foundation? 17 want to rephrase or do you want to argue? MR. HICKERSON: 18 Do you Your Honor, he has 19 just testified and he has given an expert 20 opinion in this case. JUDGE LUCKERN: 21 22 23 ahead. 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 APLNDC-WH-A0000022897 1674 1 does not comport with ETSI obligations. 2 simply asking him with respect to an offer from 3 InterDigital, the condition, a license to its 4 essential patents with a requirement that a 5 license to nonessential IPR also be taken, 6 would that comport with section 6.1? 7 I am 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 10 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 JUDGE LUCKERN: So I 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. And Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022898 1675 JUDGE LUCKERN: 1 All right. Mr. Levi, 2 what is your position with respect to the 3 objection? MS. NIEMEYER: 4 5 One other thing, Your Honor. 6 JUDGE LUCKERN: 7 MS. NIEMEYER: Go ahead. 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. 11 That's all. JUDGE LUCKERN: 12 All right. Mr. Levi, 13 what is your position with respect to the 14 objection? MR. LEVI: 15 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 22 demonstrative. So the staff would have no objection 23 24 to the witness's responding to Mr. Hickerson's 25 question. With regard to the demonstrative Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022899 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 6 make one comment. Over the years, I try not to 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 11 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 -- 17 much weight to prior rulings. 18 mean I don't stand by my prior rulings, but 19 there are various facets that come in here. 20 That doesn't And the demonstrative is not in yet. 21 And he has been qualified as an expert and, 22 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 APLNDC-WH-A0000022900 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 11 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 APLNDC-WH-A0000022901 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. It would also be a bad 13 interpretation of the reciprocity clause. 14 the essential patents are the ones that fall in 15 the context of article 6.1. Only 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 APLNDC-WH-A0000022902 1679 1 violation of article 6.1 of the ETSI rules. 2 MR. HICKERSON: 3 questions on direct, Your Honor. 4 JUDGE LUCKERN: 5 next? 10 Ms. Niemeyer, you are going next? Yes, please, Your JUDGE LUCKERN: Are you ready to proceed with your cross-examination? How is the professor doing? 11 THE WITNESS: 12 JUDGE LUCKERN: 13 Everything is fine. Is this his first time testifying in court? THE WITNESS: 14 15 Who goes Honor. 8 9 All right. MS. NIEMEYER: 6 7 I have no further I was the witness before a court in Great Britain in the past. JUDGE LUCKERN: 16 17 in the United States? 18 THE WITNESS: 19 But this is the first JUDGE LUCKERN: Yes. This is not a District 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 APLNDC-WH-A0000022903 1680 JUDGE LUCKERN: 1 2 ready? 3 MS. NIEMEYER: 4 JUDGE LUCKERN: 5 8 9 Yes, Your Honor. Back on the public record. 6 7 Ms. Niemeyer, are you CROSS-EXAMINATION 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 17 ETSI licenses, correct? 18 particular phrase I am referring to is the 19 quote, obliged to grant. 20 A. And the only 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 APLNDC-WH-A0000022904 1681 1 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 i t is said that the 9 10 11 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? The limitation speaks for itself, 15 A. 16 can say. 17 if I which binds only ETSI members. 18 Q. Because the article is in a contract 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 -- 22 when there are dispositions, when there are 23 terms set, 24 repeated that these are only for the advantage 25 of the members of the -- I mean, of the parties they are not repeated. It is not Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022905 1682 1 2 concerned. Q. So you agree that it is not in 6.1? 3 MR. HICKERSON: Your Honor, before the 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: 10 the language speaks for itself. 11 She has asked withdraw the question. 12 13 14 JUDGE LUCKERN: How do you respond? That's fine. I think I will 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? 21 A. That's correct. 22 Q. There are no negotiations between the 23 24 25 parties, correct? A. Well, practically speaking, there may, of course, be negotiations which take place if Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022906 1683 1 the parties wish to do that. 2 parties do not agree, it is upon the shoulders 3 of the holder of the patent to unilaterally 4 determine the price. 5 Q. But if the 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 66, line 1. 10 "Question: 11 JUDGE LUCKERN: 12 Mr. Hickerson, you have it there? MR. HICKERSON: I do have it, Your JUDGE LUCKERN: 13 14 Okay __ II 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 Make sure the witness has it in front If he wants to Lily, you make sure the witness -MR. HICKERSON: Your Honor, he does 21 have it in front of him but, of course, it is 22 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 APLNDC-WH-A0000022907 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 11 Q. But we have had this argument I So at page 63, line 4 to 22. "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 Mr. Healey objected to the form of the 18 question, vague and ambiguous. 19 "The Witness: 20 question, please? 21 "Answer: Can you repeat the Just you -- translation. 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 APLNDC-WH-A0000022908 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 __ II JUDGE LUCKERN: 8 9 A little slower. Go ahead. MS. NIEMEYER: 10 "Answer: Or have 11 discussions in reality, but the price cannot 12 result from these discussions." 13 JUDGE LUCKERN: 14 MS. NIEMEYER: 15 JUDGE LUCKERN: Have you finished? Yes. Can you translate 16 that? That's what Ms. Niemeyer said he 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. Is this the witness? Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022909 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 8 question. 9 Yes t I So now ask your I dontt think there is a question t 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 -- regarding the price t 15 what they have to do to find out what the right 16 price iS t they have to go to court t correct? 17 A. More exactlYt 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 t correct? 23 24 25 A. Thatts 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 APLNDC-WH-A0000022910 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, 10 that's correct. 11 that the parties agree among themselves to take 12 then that price for several licenses. 13 Q. Okay. Of course, it may be the case 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 APLNDC-WH-A0000022911 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 10 basically have just taken the exhibit and just 11 made it larger so that it can be read by 12 someone without a microscope. 13 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 17 consideration to ETSI for utilizing the said 18 patents or while buying the technology from 19 another company?" 20 The question, question 7 reads, Answer, in the second paragraph, 21 indicates "to this end, the concerned firm has 22 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 APLNDC-WH-A0000022912 1689 1 standard." THE INTERPRETER: 2 3 I am going to translate that. 4 Just one second. I am referring to 5 this because I think of something. 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 11 witness, called out a small portion of that 12 document. 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. The witness doesn't know what the He has no way to know, per JUDGE LUCKERN: 17 18 you respond? 19 want to rephrase? 20 Ms. Niemeyer, how do Do you want a ruling? Do you objection? 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 APLNDC-WH-A0000022913 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. 5 that's why I was looking at the realtime. 6 me just read the realtime. 7 question yet. THE INTERPRETER: 8 9 JUDGE LUCKERN: Let We don't have a May I translate the question again for him? 10 And 11 Mr. Hickerson? 12 13 Is there a question, MS. NIEMEYER: I don't think there is a question pending. JUDGE LUCKERN: 14 I am looking at the 15 realtime, Mr. Hickerson. I don't see a 16 question. 17 document, but I don't know where the question 18 is. She has read something from this So can we at least hear the question? MR. HICKERSON: 19 We can. But I also 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. So 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 APLNDC-WH-A0000022914 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. 8 said, without translating it. 9 sustain the objection, we can move on. Why don't you finish your Then we will see what Mr. Hickerson Because if I So go 10 ahead with whatever your question is going to 11 be. 12 BY MS. NIEMEYER: 13 Do you agree, then, that according to Q. 14 ETSI publicly available information, they 15 direct parties to negotiate to determine to 16 reach a license agreement? JUDGE LUCKERN: 17 18 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 And document is talking about that the members This Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022915 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." 15 have the whole document translated 16 would need to have the whole document 17 translated. 18 about one portion of a document that's on a 19 publicly available web site of ETSI. 20 I don't know that he needs to why he I am asking a very simple question JUDGE LUCKERN: Does he have available 21 the whole document in English? 22 MS. NIEMEYER: He has the whole 23 document available in front of him. If he 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 APLNDC-WH-A0000022916 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. 9 10 Do you have any comment you want to make on what I am saying from the bench? MR. HICKERSON: 11 12 I don't I have nothing further to add to my objection, Your Honor. JUDGE LUCKERN: 13 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 17 to himself and understand it? 18 English. It is all in It is not translated. 19 And I just don't know. 20 THE WITNESS: (In English) I think 21 that I understand the question. 22 MR. HICKERSON: Could I at least ask 23 and make sure that the question at the top is 24 read and translated to the professor? 25 couldn't even see it on the exhibit to begin I Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022917 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. 11 It is a little hard for me to read. 12 THE WITNESS: Yes, I have it here on 13 my document and I can read it. 14 JUDGE LUCKERN: 15 going to overrule the objection. 16 answer any way you want to. 17 THE WITNESS: All right. 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 APLNDC-WH-A0000022918 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: 9 10 screen, he meant. 11 Question on the BY MS. NIEMEYER: 12 Okay. Q. Do you see anything in question 13 7 or in this document that says it is limited 14 to, that the question and answer is limited to 15 non-ETSI members? MR. HICKERSON: 16 17 Before you answer, I have an objection. 18 JUDGE LUCKERN: I'm sorry. 19 MR. HICKERSON: I object to the 20 question as asked. 21 whether there is anything in this document JUDGE LUCKERN: 22 23 24 25 Ms. Niemeyer is now asking 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 APLNDC-WH-A0000022919 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 11 question, Your Honor. 12 I will withdraw the itself. JUDGE LUCKERN: 13 14 15 The document speaks for Move on. BY MS. NIEMEYER: Could you also take a look at question Q. 16 6, which is immediately above it, which is, 17 "does 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. 23 user should seek directly a license from a 24 patent holder. 25 details of a patent holder, please make your To this end, each standard In order to obtain the contact Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022920 1697 1 request to the ETSI legal service." 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 I am not sure, 10 Mr. Hickerson, whether you have an objection or 11 what. MR. HICKERSON: 12 I thought we would 13 have the translation, and then I would state my 14 objection. JUDGE LUCKERN: 15 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. 20 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 24 recharacterized in her own words what the 25 document says. And then asked the witness Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022921 1698 1 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. 11 JUDGE LUCKERN: How do you respond? 12 MS. NIEMEYER: I am cross-examining 13 the witness, Your Honor. 14 or not agree with my question. 15 and I think he can answer the question. JUDGE LUCKERN: 16 17 the objection. 18 expert. He is free to agree He is an expert I am going to overrule He has been qualified as an It has been translated into French. So let's hear what he has to say. 19 20 will have your opportunity for redirect. 21 we have to translate it again or does he 22 remember what the question is? 23 THE WITNESS: 24 JUDGE LUCKERN: You 25 So do I remember the question. Thank you very much. Go ahead. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022922 1699 THE WITNESS: 1 Well, first, this 2 question and this answer, they are not ETSI 3 rules. 4 My second comment, the general nature of this 5 question, and this also was with -- regarding 6 to the preceding question, the general nature 7 of these questions, makes us think that we have 8 to do with questions that concern third parties 9 to ETSI. And they do not have a binding force. And then the answer, which is given 10 11 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: Q. 20 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: 23 the confidential record. 24 All right. We're on it? 25 MS. NIEMEYER: Whose information is Samsung's. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022923 1700 1 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 23 24 25 Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022924 1705 OPE N 1 2 3 S E S S ION BY MS. NIEMEYER: Professor Boucobza, you have never Q. 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 A. 11 No, no, that wasn't necessary for me to establish my report. 12 MS. NIEMEYER: 13 questions, Your Honor. 14 Boucobza. JUDGE LUCKERN: 15 16 MR. LEVI: I do, Your Honor, very JUDGE LUCKERN: Fine, fine, no problem. EXAMINATION BY COUNSEL FOR ITC STAFF 21 22 Mr. Levi, do you have briefly. 19 20 Thank you, Professor anything? 17 18 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 APLNDC-WH-A0000022925 1706 1 Ms. Niemeyer's questioning of you and, in 2 particular, I would like to return to her 3 you recall when she showed you a portion of 4 your deposition transcript? do 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 11 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? A. It is, indeed, the burden of the 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 And the "he" you referred to in your Q. 21 response, under ETSI rules, does the "he" refer 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 APLNDC-WH-A0000022926 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 6 the license is executed. It is the contract 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 11 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 APLNDC-WH-A0000022927 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. 5 is too high. 6 examples of cases how one can judge if a price 7 is abusive. 8 9 Q. Meaning that the price And case law shows with certain Do ETSI rules contemplate that in place of the party seeking the license going to 10 court to seek an answer to the question you 11 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 JUDGE LUCKERN: want to respond? MR. LEVI: It is certainly within the scope of Ms. Niemeyer's cross-examination. 21 MS. NIEMEYER: 22 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 APLNDC-WH-A0000022928 1709 1 within the scope, Your Honor. 2 JUDGE LUCKERN: 3 your position on the objection? 4 MR. HICKERSON: 5 MS. NIEMEYER: We do not support the objection, Your Honor. 6 Mr. Hickerson, what is 7 Your Honor. JUDGE LUCKERN: 8 9 It is also leading, Where do we stand on the leading with respect to Mr. Levi and this 10 witness. Is he a hostile witness to you and 11 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 -- 21 certainly within the scope -- well, wait a 22 minute. you indicated, Mr. Levi, that it is I am going to then sustain the 23 24 objection on the leading nature of it. 25 Go ahead. Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022929 1710 MR. LEVI: 1 I will be happy to 2 rephrase, Your Honor. 3 BY MR. LEVI: 4 Q. Do ETSI rules -- strike that. Professor, you described an action 5 6 that a potential licensee can bring under ETSI 7 rules. 8 contemplate a patentee bringing an action for 9 patent infringement? 10 11 12 My question is, do ETSI rules MS. NIEMEYER: Objection, Your Honor, that's the same question. MR. LEVI: I don't believe that 13 question is leading. 14 question, then I don't think the first question 15 was leading. 16 17 18 So if it is the same 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 APLNDC-WH-A0000022930 1711 1 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. 8 is no objection for infringement of the 9 license. There 10 But the response, according to French law, is, in reality, quite simple. When there was a contract between 11 12 parties, then you are immediately not in the 13 framework, in the context anymore of 14 infringement. 15 case which can result by contract. 16 example, it can result in a lawsuit with 17 regards to the price. Then you are in a context of a For And then measures are taken, are 18 19 executed in order to obtain -- to change that 20 price. 21 law, the domain of contract law. 22 nothing to do with infringement. 23 24 25 But this has only to do with contract MR. LEVI: This has Thank you, Professor. Nothing further. JUDGE LUCKERN: You are finished? Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022931 1712 1 Redirect, Mr. Hickerson? MR. HICKERSON: 2 3 4 5 Yes, Your Honor. REDIRECT EXAMINATION BY MR. HICKERSON: Professor, with respect to the last Q. 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. 12 Professor, Ms. Niemeyer asked you some 13 questions about an ETSI frequently asked 14 questions document. 15 remember those questions? 16 question 7. It was CX-816. 17 MR. HICKERSON: 19 THE WITNESS: Question 6 and Now 18 Do you 20 21 Please interpret. Yes, absolutely. BY MR. HICKERSON: Q. Okay. Now, to the extent that there 22 is anything inconsistent with those frequently 23 asked questions with the ETSI IPR policy, which 24 would control? 25 A. There is no possible dispute. Those Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022932 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? 9 A. Yes, absolutely. 10 Q. Do you Now, if an ETSI member made a 11 declaration of essential patents under section 12 4.1 that included more than one patent, a 13 number of patents, that would be okay, wouldn't 14 it? 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 APLNDC-WH-A0000022933 1714 1 question and you said objection, leading. 2 then the question was, would that be okay? 3 I am just not sure. MR. HICKERSON: 4 And And I was making the 5 question open-ended, Your Honor, with that 6 phrase. JUDGE LUCKERN: 7 8 it in some way? 9 Why can't you rephrase 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 APLNDC-WH-A0000022934 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 May I briefly respond to Mr. Levi's examination? JUDGE LUCKERN: 9 Yes, you may. But you 10 mean with further questions of this witness, 11 Ms. Niemeyer? Is that what you want to do? MS. NIEMEYER: 12 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 APLNDC-WH-A0000022935 1716 1 MR. HICKERSON: 2 3 4 Thank you, Your Honor. RECROSS-EXAMINATION 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 17, 11 through 41, line 5 which reads: 12 - "Question: 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 ETSIi is that correct? 17 "Answer: 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 APLNDC-WH-A0000022936 1717 1 yes. JUDGE LUCKERN: 2 3 translate that, Lily? 4 Do you want to The witness understands it? THE INTERPRETER: 5 No, I am going to 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. 18 We read it in and I don't have a question -- well 19 20 MS. NIEMEYER: 21 JUDGE LUCKERN: He had stated -- sorry. You say it is 22 contradictory. 23 you agree with this today or something? 24 BY MS. NIEMEYER: 25 Q. But let's have a question. Do So you stated to Mr. Levi that you can Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022937 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 No, as you can see from the response I A. 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. 9 clear. 10 I And on this point, case law is very The license contract -- I mean, the 11 contract is concluded independently of the 12 fixing of the price. 13 the decisions of the Supreme Court of the 1st 14 of December, 1995, which were earlier 15 mentioned. 16 And this, according to In other words, the price is not a 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 22 I just read was the testimony you gave at your 23 deposition, correct? 24 25 A. Yes, that's correct, and, again, I approve completely with what I said in my Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022938 1719 1 2 answer. Okay. Q. 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 11 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 JUDGE LUCKERN: There 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 APLNDC-WH-A0000022939 1720 1 It is just changing the names of the parties. JUDGE LUCKERN: 2 I am going to overrule 3 the objection. 4 expert. 5 all witnesses do. 6 want to translate it again? 9 He seems to be doing a great job, as You may answer that. THE WITNESS: 7 8 He has been qualified as an French) (In English) No. Do you (In The question is very vague. JUDGE LUCKERN: Well, wait a minute. 10 The question is very vague. 11 understand it or it is ambiguous or something, 12 sir, you can just tell me that. 13 however you want to do it. 14 can answer it, but you want to qualify it in 15 some way, you can do that. 16 qualified as an expert. 17 you are the king right there in that box. 18 do you want to do? 19 20 THE WITNESS: 22 MS. NIEMEYER: 25 But if you feel you You have been However you want to -What the hypothesis. JUDGE LUCKERN: 24 And I will I am going to specify 21 23 Well, if you don't 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. I'm Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022940 1721 1 sure he didn't go up to you and tell you what 2 he is going to say. 3 witness -- go ahead. 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 Ms. Niemeyer opened it, 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 10 to the application of 6.1, article 6.1, there 11 it is not possible that there is infringement. On the other hand, if the patent is 12 13 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: 21 MS. NIEMEYER: 22 23 24 25 Okay, thank you. Are you finished? Yes, thank you, Your Honor. JUDGE LUCKERN: Mr. Levi, do you have anything you want to do? MR. LEVI: Thank you, Your Honor, Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022941 1722 1 nothing further. JUDGE LUCKERN: 2 3 You have the last say. MR. HICKERSON: Nothing further, Your JUDGE LUCKERN: 4 5 Mr. Hickerson? 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. 10 THE WITNESS: Thank you, Your Honor. 11 JUDGE LUCKERN: 12 back to Paris. 13 just leave, go to Paris. 14 fantastic. 15 Have a pleasant trip I wish I could go with you, not want to. That would be Where do we go? 16 MS. NIEMEYER: 17 JUDGE LUCKERN: 18 have exhibits. 19 sorry. 20 MR. HICKERSON: Your Honor -Wait a minute. 22 You better wait a bit. We these exhibits or what? 21 Stay here if you Sorry, Why don't you -- is there agreement on We're about to find out, Your Honor. 23 JUDGE LUCKERN: Off the record. 24 (Discussion off the record.) 25 JUDGE LUCKERN: Back on the public Heritage Reporting Corporation (202) 628-4888 APLNDC-WH-A0000022942

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