Google Inc. v. Rockstar Consortium US LP et al

Filing 98

Transcript of Proceedings held on June 26, 2014, before Judge Claudia Wilken. Court Reporter Diane E. Skillman, Telephone number 510-451-2930, [e-mail], [e-mail]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 86 Transcript Order, 85 Transcript Order ) Release of Transcript Restriction set for 11/3/2014. (Related documents(s) 86 , 85 ) (Skillman, Diane) (Filed on 8/4/2014)

PAGES 1 - 28
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

GOOGLE, INC.,

)
)

PLAINTIFF,

)

)
VS.
)
)
ROCKSTAR CONSORTIUM US LP, )
ET AL.,
)
)
DEFENDANTS.
)
____________________________)

NO. C-13-5933 CW

THURSDAY, JUNE 26, 2014
OAKLAND, CALIFORNIA
MOTION TO TRANSFER
CASE MANAGEMENT CONFERENCE

BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE
REPORTER'S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR PLAINTIFF:
BY:

FOR DEFENDANTS:
BY:

REPORTED BY:

QUINN, EMANUEL, URQUHART & SULLIVAN
50 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111
MATTHEW WARREN, ESQUIRE
CHARLES VERHOOVEN, ESQUIRE

MCKOOL SMITH
300 CRESCENT COURT, SUITE 1500
DALLAS, TEXAS 75201
THEODORE STEVENSON, III, ESQUIRE
DAVID SOCHIA, ESQUIRE

DIANE E. SKILLMAN, CSR 4909, RPR, FCRR
OFFICIAL COURT REPORTER

TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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THURSDAY, JUNE 26, 2014

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P R O C E E D I N G S
THE CLERK:

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2:17 P.M.

CALLING C-13-5933 GOOGLE, INC. VERSUS

ROCKSTAR CONSORTIUM, US LP, ET AL.
PLEASE STEP FORWARD AND STATE YOUR APPEARANCES.
MR. WARREN:

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MATTHEW WARREN OF QUINN EMANUEL FOR

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PLAINTIFF GOOGLE, INC., AND WITH ME IS CHARLES VERHOOVEN ALSO

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OF QUINN EMANUEL.
MR. STEVENSON:

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MOBILESTAR DEFENDANTS.

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TED STEVENSON FOR ROCKSTAR AND

MCKOOL SMITH.
THE COURT:

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AND ALSO WITH ME IS DAVID SOCHIA OF

GOOD AFTERNOON.

THIS IS ON FOR DEFENDANTS' MOTION TO TRANSFER OR STAY AND
ALSO FOR A CASE MANAGEMENT CONFERENCE.
SO YOU MAY ARGUE YOUR STAY MOTION BRIEFLY IF YOU WOULD
LIKE.
MR. STEVENSON:

THANK YOU, YOUR HONOR.

I WILL BE

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ARGUING THE TRANSFER OR STAY ISSUES AND MR. SOCHIA WILL BE

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HANDLING THE CASE MANAGEMENT CONFERENCE, IF THAT'S ALL RIGHT

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WITH YOU.

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THE COURT:

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MR. STEVENSON:

OKAY.
THE WAY I WOULD LIKE TO PRESENT TO

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YOU THE CASE IN FAVOR OF TRANSFER OR STAY IS TO FIRST GIVE

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YOUR HONOR SOME BACKGROUND ON WHAT IS CURRENTLY THE STATUS OF

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THE CASE AGAINST HANDSET MANUFACTURERS IN THE EASTERN DISTRICT

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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OF TEXAS.

THE COURT:

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THAT WILL BE FAIRLY BRIEF, AND THEN -YOU'VE -- THEY'VE ALL BEEN CONSOLIDATED

AND YOU'VE GOT MOTIONS TO TRANSFER UNDER SUBMISSION.

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

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THE COURT:

YES, YOUR HONOR.

YOU'VE GOT A CASE MANAGEMENT SCHEDULE -YES.

-- WHICH INCLUDES A TRIAL IN ABOUT A YEAR

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AND HAS CLAIM CONSTRUCTION WHEN?

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

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OKAY.
WE HAVE EXCHANGED CONTENTIONS AND WE

ARE DOING DOCUMENT PRODUCTION NOW.

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THE COURT:

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MR. STEVENSON:

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CLAIM CONSTRUCTION IS JANUARY 2015.

OKAY.
AND IN THAT CASE, GOOGLE IS A

DEFENDANT AS WELL AS SIX HANDSET MANUFACTURERS.

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THE COURT:

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MR. STEVENSON:

RIGHT.
THAT CASE INVOLVES SEVEN PATENTS.

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ONE PATENT IS HARDWARE ONLY, THE '551, SIX PATENTS ARE A MIX

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OF SOFTWARE AND HARDWARE ELEMENTS.

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THAT GOOGLE IN THIS CASE HAS MOVED FOR DECLARATORY JUDGMENT

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ON, THE SAME SET OF SEVEN, AND THAT'S THE OVERLAP BETWEEN THE

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TWO CASES.

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AND THOSE ARE THE PATENTS

SO LET ME NOW TALK ABOUT TRANSFER AND WHY IT'S APPROPRIATE
HERE.
WHEN WE WERE INITIALLY SERVED WITH THE COMPLAINT, WE MOVED

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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FOR DISMISSAL FOR LACK OF PERSONAL JURISDICTION AND ALSO FOR

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EITHER STAY OR TRANSFERRING THE FIRST FILED.

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DENIED THAT, FINDING THAT ROCKSTAR AND MOBILESTAR, THE

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PLAINTIFFS HERE, WERE SUBJECT TO PERSONAL JURISDICTION.

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AND THE COURT

AND ONE OF THE ARGUMENTS THAT GOOGLE MADE THAT THE COURT

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CITED IN ITS ORDER WAS THAT THIS IS A CUSTOMER SUIT, AND

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GOOGLE'S INTEREST IS PROTECTING ITS CUSTOMERS.

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WE ARE HERE TODAY BECAUSE SINCE YOUR HONOR'S ORDER, AS THE

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CASE HAS UNFOLDED, IT HAS BECOME CLEAR THAT THIS ISN'T REALLY

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A CUSTOMER SUIT EXCEPTION CASE; THAT THE HANDSET MANUFACTURERS

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AREN'T REALLY CUSTOMERS OF GOOGLE AND THAT THEY AREN'T GOING

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TO BE ABLE AND AREN'T WILLING TO EITHER INDEMNIFY THEM OR STEP

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INTO THE SHOES TO PROTECT THEM.

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AND THAT'S WHAT I WANT TO TALK ABOUT.
THE COURT:

GOOGLE ISN'T INDEMNIFYING THE DEFENDANTS

IN TEXAS; HOW DO YOU KNOW?

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

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WE HAVE ASKED THEM THAT.

WHAT DID THEY SAY?
THEY HAVE BEEN UNWILLING TO EITHER

ADMIT LEGAL RESPONSIBILITY FOR INFRINGEMENT AND -THE COURT:

THAT'S NO SURPRISE, BUT DID THEY SAY THEY

WERE INDEMNIFYING THEIR CUSTOMERS OR NOT?

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

NO, THEY DIDN'T.

THEY DIDN'T SAY ONE WAY OR THE OTHER.
THEY DIDN'T SAY ONE WAY OR THE OTHER.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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IN FACT, WE UNDERSTAND THAT THE GOOGLE OPEN SOURCE ANDROID

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PLATFORM, WHICH IS WHAT GOOGLE HAS PUT OUT INTO THE PUBLIC

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DOMAIN, AND REMEMBER THIS DECLARATORY JUDGMENT CASE IS ABOUT

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REALLY TWO DIFFERENT PRONGS.

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THAT'S THE HARDWARE, AND WE DON'T DISPUTE GOOGLE'S LEGAL

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INTEREST IN ADJUDICATING THE GOOGLE NEXUS.

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HAVE ASKED FOR DECLARATORY JUDGMENT ON WHAT THEY VAGUELY TERM

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THE ANDROID PLATFORM.

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ONE IS THE GOOGLE NEXUS PHONES,

BUT, THEY ALSO

WE HAVE ASKED THEM, IN THIS CASE, WHAT IS THE ANDROID

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PLATFORM?

WHAT ARE YOU ASKING FOR ADJUDICATION OF?

AND MORE

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IMPORTANTLY, ARE YOU TAKING ON LEGAL RESPONSIBILITY FOR THE

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ANDROID PLATFORM AS IT'S IMPLEMENTED IN HANDSETS?

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AND THE PROBLEM IS, NUMBER ONE, ALL THE HANDSET

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MANUFACTURERS THAT WE ARE LITIGATING WITH HAVE TAKEN THE

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POSITION THAT THEY MODIFY THE GOOGLE OPEN SOURCE ANDROID

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PLATFORM AND THAT IT'S DIFFERENT.

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TO OUR MOVING PAPERS, WE HAVE INCLUDED A REPRESENTATIVE LETTER

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FROM ONE OF THE DEFENDANTS, LG, WHO BASICALLY TELLS US OUR

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INFRINGEMENT CONTENTIONS ARE DEFICIENT BECAUSE WE CAN'T POINT

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TO ANDROID OPEN SOURCE, WE HAVE TO POINT TO THEIR --

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THE COURT:

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AND, IN FACT, IN EXHIBIT 22

I TRANSFER THE CASE TO TEXAS?

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I AM LOSING THE THREAD HERE.

MR. STEVENSON:

WHY SHOULD

BECAUSE THIS CASE CAN'T ADJUDICATE

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WHAT IS GOING ON WITH INFRINGEMENT OF THE HANDSET

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MANUFACTURERS IN TEXAS.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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SO WHAT'S HAPPENED IS, IT'S CREATED A PARALLEL,

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ESSENTIALLY PARALLEL LITIGATION, WHERE WE HAVE A CASE AGAINST

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SIX HANDSET MANUFACTURERS AND GOOGLE IN TEXAS OVER ACTUAL

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HANDSET PRODUCTS, WE HAVE A GOOGLE D.J. OVER ITS NEXUS HERE IN

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THIS COURT AS WELL AS A REQUEST FOR WHAT SEEMS TO BE AT MOST

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AN ADVISORY OPINION ON A PIECE OF OPEN SOURCE SOFTWARE THAT WE

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DON'T ACCUSE OF INFRINGEMENT.

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OUR ALLEGATION OF INFRINGEMENT IS AGAINST HANDSETS, NOT -- NOT

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SOFTWARE.

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IT'S -- IT'S JUST THE SOFTWARE.

THAT'S WHAT THE CLAIMS COVER.

SO, MY POINT ON TRANSFER IS, I UNDERSTAND CASES CAN RUN IN

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PARALLEL, AND SOMETIMES THERE ARE GOOD REASONS FOR THAT, BUT,

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OBVIOUSLY, YOUR HONOR HAS TO MAKE A DECISION ABOUT JUDICIAL

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ECONOMY AND DOES THIS NECESSARILY MAKE SENSE.

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IN THIS CASE, I THINK HAVING PARALLEL PROCEEDINGS RISKS,

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NUMBER ONE, INCONSISTENT RULINGS ON MARKMAN, SUMMARY JUDGMENT

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INFRINGEMENT, NUMBER TWO, OBVIOUSLY USES UP A LOT OF RESOURCES

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OF THIS COURT AND, NUMBER THREE, I THINK IS NOTHING MORE THAN

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AN ATTEMPT BY GOOGLE TO TRY TO GET A FREE SHOT AT ADJUDICATION

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WITHOUT REALLY TAKING ON ANY OF THE RISK OF LOSING.

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HERE'S WHAT I MEAN BY THAT.

I EXPECT THAT GOOGLE IS GOING

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TO SAY, IF THEY WIN INFRINGEMENT, AND THEY TRY TO -- THEY ARE

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GOING TO TRY TO SAY THAT WE HAVE NOW PROVED THAT THE HANDSETS

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THAT ARE BEING ACCUSED OF INFRINGEMENT DON'T INFRINGE BECAUSE

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WE'VE ESTABLISHED NONINFRINGEMENT OF THE GOOGLE PLATFORM, THE

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ANDROID PLATFORM.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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BUT IF GOOGLE LOSES THE CASE AND LOSES INFRINGEMENT, I

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EXPECT WHAT'S GOING TO HAPPEN IS THEY'RE GOING TO SAY WE ARE

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NOT LEGALLY LIABLE FOR THE HANDSET MAKERS, WE DON'T INDEMNIFY

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THEM, IF YOU WANT TO PROVE INFRINGEMENT, ROCKSTAR, YOU HAVE TO

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GO AND PROVE INFRINGEMENT AGAINST EACH ONE OF THE HANDSET

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MAKERS.

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AND, IN FACT, WHAT WE HAVE LEARNED IN THIS CASE SINCE

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THEN, IS WE HAVE ASKED GOOGLE TO PRODUCE THE CODE FOR THE

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HANDSETS, THE TECHNICAL SPECIFICATIONS FOR THE HANDSETS IF

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THEY WANT THEM ADJUDICATED IN THIS CASE, AND THEY CAN'T

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PRODUCE THAT TO US.

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SO, CANDIDLY, I'M NOT SURE WHAT WE CAN ADJUDICATE IN THIS

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CASE UNDER DECLARATORY JUDGMENT THAT CAN POSSIBLY AFFECT THE

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RIGHTS OF THE HANDSET MANUFACTURERS ESPECIALLY WHEN GOOGLE IS

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UNWILLING TO STEP UP AND SAY WE ARE LEGALLY RESPONSIBLE,

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WHETHER THERE'S INFRINGEMENT OR NOT WE ARE LEGALLY

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RESPONSIBLE.
THE COURT:

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I SUPPOSE.

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THAT IS BETWEEN THEM AND THEIR CUSTOMERS,

NOT WANT TO TELL YOU.

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I MEAN THEY COULD WELL BE INDEMNIFYING THEM AND
THAT WOULDN'T BE THE FIRST TIME.

AND IT'S KIND OF BETWEEN THEM AND THEIR CUSTOMERS WHETHER

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THEY ARE GOING TO IN END.

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YOU WIN, SOMEBODY WILL PAY YOU WHETHER IT'S THE CUSTOMERS OR

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THEM.

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AND IT DOESN'T REALLY AFFECT YOU IF

PRESUMABLY IT WILL BE SOMEBODY.
MR. STEVENSON:

BUT IT AFFECTS ARTICLE III STANDING.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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THE COURT:

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I'M NOT SURE HOW ALL PLAYS INTO IT.

SORRY?

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

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IT AFFECTS STANDING.

AFFECTS STANDING.
IF GOOGLE DOESN'T HAVE AN INDEMNITY

OR ANY JUSTICIABLE INTEREST --

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THE COURT:

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MR. STEVENSON:

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THE COURT:

STANDING OF WHO WHERE?
OF GOOGLE IN THIS CASE TO ASSERT --

THIS IS A MOTION TO TRANSFER.

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MAKING A STANDING ARGUMENT NOW?

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MR. STEVENSON:

YOU ARE

NO, I AM NOT MAKING A STANDING

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ARGUMENT NOW.

WHAT I'M SUGGESTING IS IT'S RELEVANT BECAUSE IF

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GOOGLE ISN'T INDEMNIFYING OR TAKING RESPONSIBILITY FOR THE

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MODIFIED ANDROID CODE ON THE HANDSETS, RIGHT, THEN --

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THE COURT:

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MR. STEVENSON:

I DON'T KNOW IF THEY ARE OR NOT.
I DON'T THINK THEY ARE.

AND WE HAVE

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ASKED THEM IF THEY WILL AND THEY REFUSE TO ANSWER THAT

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QUESTION.

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THE COURT:

WE JUST WENT THROUGH THIS.

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IS THERE ANYTHING ELSE?

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MR. STEVENSON:

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THE COURT:

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MR. STEVENSON:

NO, YOUR HONOR.

THAT'S ALL?
MY -- MY REQUEST TO YOU, THOUGH, IS

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IF WE TRANSFER THIS CASE TO TEXAS, WE WILL HAVE ONE CASE, NO

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POSSIBILITY OF GOOGLE TRYING TO GET A FREE SHOT, WHERE THERE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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WILL BE ONE ADJUDICATION OF INFRINGEMENT OR NONINFRINGEMENT

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FOR EACH OF THE HANDSETS.

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AND MY SUGGESTION TO YOUR HONOR IS THAT MAKES A LOT MORE

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JUDICIAL ECONOMY SENSE THAN HAVING TWO CASES RUNNING IN

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PARALLEL WHEN THIS CASE CAN AT MOST DETERMINE THE INFRINGEMENT

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OF THE NEXUS, THE GOOGLE NEXUS HANDSET, WHICH IS A VERY SMALL,

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YOU KNOW, LOW SINGLE DIGIT PERCENTAGE MARKET SHARE PRODUCT IN

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THE MARKET.
THE COURT:

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WELL, WE DON'T KNOW YET WHETHER JUDGE

GILSTRAP WILL BE TRANSFERRING HIS CASES HERE.

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MR. STEVENSON:

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THE COURT:

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MR. WARREN:

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WE DON'T.

DID YOU WANT TO RESPOND?
SURE.

A COUPLE QUICK THINGS, YOUR

HONOR.
FIRST OF ALL, AS YOU NOTED AT THE END, COUNSEL'S ENTIRE

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ARGUMENT DEPENDS ON THE PREMISE THAT JUDGE GILSTRAP WILL DENY

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THE TRANSFER MOTION AND THAT THOSE CASES ARE GOING TO STAY IN

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TEXAS.

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MOTION.

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WE OBVIOUSLY HOPE THAT HE WILL GRANT THE TRANSFER

THE COURT:
TRANSFER?

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MR. WARREN:

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THE COURT:

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MR. WARREN:

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DID ALL OF THE DEFENDANTS MOVE TO

YES, YOUR HONOR.
EVEN SAMSUNG?
YES, YOUR HONOR.

ALL OF THE DEFENDANTS HAVE MOVED TO TRANSFER.

EVERYONE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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HAS MOVED TO TRANSFER.

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WILL COME UP HERE.

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FALSE PREMISE FOR COUNSEL TO SAY THAT THE ONLY WAY FOR THE

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CASES TO BE HEARD IN ONE PLACE WOULD BE FOR THIS COURT TO

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TRANSFER THEM DOWN THERE.

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WE ALL HOPE THAT ALL OF THOSE CASES

THAT IS UNRESOLVED, BUT I THINK IT'S A

MY VIEW PERSONALLY IS THAT IF THIS COURT DENIES TRANSFER,

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I WOULD ARGUE FOR THE SECOND TIME, IF THIS COURT DENIES

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TRANSFER I THINK JUDGE GILSTRAP WILL CERTAINLY TAKE THAT INTO

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ACCOUNT.

AND I WOULD HOPE THAT HE WOULD EXERCISE COMITY AND

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TRANSFER THE CASES UP HERE.

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BUT I THINK IT'S SOMETHING THAT YOUR HONOR SHOULD CONSIDER.

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ANOTHER THING I WANT TO MENTION THAT COUNSEL SORT OF

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ALIGHTED IS THAT, IN FACT, AS BETWEEN ROCKSTAR AND GOOGLE IN

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TEXAS, ONLY THREE PATENTS ARE AT ISSUE.

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LEAVE TO AMEND THE OTHER FOUR.

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LAST TIME THAT WE WERE HERE TOGETHER.

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PENDING.

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I OBVIOUSLY CAN'T GUARANTEE THAT,

THEY HAVE MOVED FOR

THAT MOTION WAS PENDING THE
THAT MOTION REMAINS

THE CURRENT STATE OF PLAY IS THERE'S ONLY THREE PATENTS AT

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ISSUE BETWEEN ROCKSTAR AND GOOGLE IN TEXAS.

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SEVEN ARE AT ISSUE UP HERE.

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THERE ARE ALL

I WOULD ALSO NOTE THAT COUNSEL REFERRED SEVERAL TIMES TO

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THIS CASE AS A DECLARATORY CASE.

IT STARTED OUT THAT WAY.

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ROCKSTAR HAS COUNTERSUED US FOR INFRINGEMENT.

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AS MUCH AN INFRINGEMENT CASE, AS ANY OTHER CASE INCLUDING THE

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CASE IN TEXAS.

SO THIS IS JUST

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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I ALSO WANT TO RESPOND TO HIS POINT ABOUT THE CUSTOMER

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SUIT.

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MANUFACTURER/CUSTOMER SUIT.

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THAT RULING.

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PERSONAL JURISDICTION CONTEXT.

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ESSENTIALLY TRYING TO RE-LITIGATE AN ISSUE UNDER THE GUISE OF

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JUDICIAL EFFICIENCY IN THE VENUE CONTEXT.

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YOUR HONOR HAS ALREADY DECIDED THIS IS A
THEY DON'T ACTUALLY CHALLENGE

THAT WAS A RULING THAT YOUR HONOR MADE IN THE
THAT IS DONE.

THEY ARE

I DON'T THINK IT REALLY BELONGS THERE, BUT THAT'S WHAT
THEY ARE TRYING DO.
TO CLEAR UP ANY MISCONCEPTIONS ABOUT THE ANDROID PLATFORM,

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BY THE ANDROID PLATFORM WE DO MEAN THE ANDROID OPEN SOURCE

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PRODUCTS THAT WE PUT OUT ON THE INTERNET.

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REPRESENTED TO THE COURT THAT THEY DON'T THINK THAT INFRINGES.

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SO THAT'S GREAT.

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COUNSEL HAS NOW

THEN THAT WON'T BE AN ISSUE AT ALL.

THE COURT:

TO WHAT EXTENT DO THE TEXAS DEFENDANTS

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USE THE ANDROID PLATFORM OUT OF THE BOX AND TO WHAT EXTENT DO

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THEY MODIFY IT?

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MR. WARREN:

SO THE SHORT ANSWER IS, IS THAT THERE

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ARE SOME MODIFICATIONS, HOWEVER ROCKSTAR'S VIEW RIGHT NOW IS

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THAT THOSE MODIFICATIONS ARE NOT MATERIAL TO ITS INFRINGEMENT

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CONTENTIONS.

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AND WE KNOW THIS BECAUSE THEY HAVE GIVEN US INFRINGEMENT

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CONTENTIONS IN TEXAS.

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THAT THEY HAVE GIVEN US IS THE '973 AND EVERY -- THEY'VE GIVEN

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SEPARATE INFRINGEMENT CONTENTIONS TO EACH OF THE TEXAS

AND ONE OF THE INFRINGEMENT CONTENTIONS

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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DEFENDANTS.

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EVERY SINGLE ONE CONTAINS THE FOLLOWING LANGUAGE:

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EXEMPLARY OPEN SOURCE CITATIONS HEREIN SHOW THAT THE CITED

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FUNCTIONALITIES APPEAR IN ACCUSED PRODUCTS HAVING ANY VERSION

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OR ADAPTATION THEREOF OF ANDROID OPERATING SYSTEM.

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FUNCTIONALITIES OR EQUIVALENT FUNCTIONALITIES APPEAR IN ALL

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ACCUSED PRODUCTS WITH ANY VERSION OF ANDROID OPERATION SYSTEM.

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THE

THE CITED

SO THAT'S THEIR RULE 11 BASIS FOR INFRINGEMENT IN TEXAS.
THEIR RULE 11 BASIS FOR INFRINGEMENT IN TEXAS IS EVERYTHING'S

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THE SAME, THEY ONLY HAVE TO CITE TO THE OPEN SOURCE.

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CLEARLY THINK THAT THEY HAVE A RULE 11 BASIS FOR INFRINGEMENT

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ON THAT BASIS.

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THINK YOUR HONOR AND HOPEFULLY A JURY IN THIS COURTHOUSE WILL

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FIGURE THAT OUT.

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YOU KNOW, I THINK WE DON'T INFRINGE.

AND THEY

BUT I

THEY -- THEY ARE SAYING RIGHT NOW THAT THERE ARE

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MODIFICATIONS THAT ARE MATERIAL.

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OFFICIAL INFRINGEMENT CONTENTIONS HAVE IDENTIFIED NO SUCH

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MODIFICATIONS.

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THE PROBLEM IS IS THAT THEIR

I WOULD ALSO NOTE THAT THE STANDARD FOR WHETHER OR NOT

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THIS IS A MANUFACTURER/CUSTOMER SUIT, I THINK COUNSEL HAS

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MISSTATED IT SLIGHTLY.

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IF YOUR HONOR IS INTERESTED IN TAKING THAT STANDARD INTO

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ACCOUNT, WE FILED SOMETHING YESTERDAY WHERE THE FEDERAL

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CIRCUIT RESTATED THAT STANDARD, AND THAT STANDARD IS, ALTHOUGH

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THERE MAY BE ADDITIONAL ISSUES INVOLVING THE DEFENDANTS IN THE

AGAIN, I DON'T THINK THAT MATTERS, BUT

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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CUSTOMER ACTION, THEIR PROSECUTION WILL BE ADVANCED IF THE

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PLAINTIFF IS SUCCESSFUL ON THE MAJOR PREMISES BEING LITIGATED

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IN THE MANUFACTURER LITIGATION AND MAY WELL BE MOOTED IF THE

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PLAINTIFF IS UNSUCCESSFUL.

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YESTERDAY.

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THAT'S THE FEDERAL CIRCUIT

SO IF IT IS SUCCESSFUL ON THE MAJOR PREMISES.

I THINK

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THAT THE COURT HAS ALREADY FOUND THAT MAJOR ISSUES ARE GOING

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TO BE RESOLVED IN THIS LITIGATION.

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OTHER CASES TO BE TRANSFERRED UP HERE.

WE HAVE ASKED FOR THE
FOR ALL THE REASONS WE

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STATED IN OUR BRIEF, I AM HAPPY TO GO THROUGH THE TRANSFER

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FACTORS, BUT I DOUBT YOUR HONOR WANTS ME TO.

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I'M BEING TOLD TO SLOW DOWN.

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THE LOCUS OF THE WITNESSES IS UP HERE.

TO THE EXTENT THAT

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THEY HAVE WITNESSES, I THINK WE HAVE SHOWN CONVINCINGLY THAT

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THOSE WITNESSES ARE EITHER IN CANADA -- THEY'RE CERTAINLY NOT

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IN MARSHALL, TEXAS, AND ALL OF THE CONVENIENCE, THE PUBLIC AND

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THE PRIVATE FACTORS MILITATE IN FAVOR OF A HEARING IN THIS

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FORUM.

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THE COURT:

ARE YOU ALLEGING INVALIDITY OF THEIR

PATENTS HERE?

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MR. WARREN:

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THE COURT:

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MR. WARREN:

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THE COURT:

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MR. STEVENSON:

WE ARE, YOUR HONOR.
YOU HAVE ALREADY?
WE HAVE ALREADY, YOUR HONOR.
YOU WEREN'T AWARE OF THAT?
YES, THEY HAVE AFFIRMATIVE DEFENSE OF

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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INVALIDITY.

2

INVALIDITY.
THE COURT:

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4

THEY DON'T HAVE A DECLARATORY JUDGMENT CLAIM FOR

OH, BUT THEY RESPONDED TO YOUR

COUNTERCLAIM BY CLAIMING INVALIDITY?

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MR. STEVENSON:

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THE COURT:

7

SO DO YOU HAVE ANY COMMENT ABOUT WHETHER

YOU'RE INDEMNIFYING THE TEXAS DEFENDANTS -MR. WARREN:

8
9

YES, YOUR HONOR.

I THINK THAT THAT'S SOMETHING THAT MAY

OR MAY NOT BE SUBJECT TO DISCUSSIONS BETWEEN OUR CLIENTS.

AND

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I DON'T THINK THAT I HAVE TO REVEAL THAT UNTIL THE APPROPRIATE

11

TIME.

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WHO PAYS DOESN'T MATTER.

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AND AS I THINK YOUR HONOR NOTED, IT DOESN'T MATTER.

THE COURT:

DO YOU HAVE ANY INFORMATION AS TO WHETHER

14

THE TEXAS DEFENDANTS WOULD BE AGREEABLE TO BEING BOUND BY ANY

15

DETERMINATIONS MADE IN THIS COURT?

16

MR. WARREN:

I ASKED THEM THAT QUESTION THIS MORNING,

17

AND THEY ALL RESPONDED THAT ROCKSTAR NEVER ASKED THEM THAT.

18

AND SO OBVIOUSLY THAT'S SOMETHING THAT THEY WOULD HAVE TO TALK

19

TO THEIR CLIENTS ABOUT.

20

ROCKSTAR MAKES A BIG DEAL IN THEIR PAPERS ABOUT HOW THE

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TEXAS DEFENDANTS HAVE NOT AGREED TO BE BOUND BY THE OUTCOME OF

22

THIS ACTION.

23

OF TRYING TO MAKE A RHETORICAL POINT, THEY WOULD HAVE ASKED

24

THE TEXAS DEFENDANTS.

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ME TODAY THAT THEY HAD NOT BEEN ASKED THAT QUESTION.

I THINK IF THEY REALLY CARED ABOUT THAT INSTEAD

THE TEXAS DEFENDANTS ALL CONFIRMED TO

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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IN LIGHT OF THAT, I THINK THE COURT SHOULDN'T WORRY ABOUT

2

IT PARTICULARLY SINCE THE STANDARD IS NOT AGREEMENT TO BE

3

BOUND.

4

TO BE BOUND IS ONE WAY TO GET THERE.

5
6
7

THE STANDARD IS RESOLUTION OF MAJOR ISSUES.

AGREEMENT

I THINK WE HAVE SHOWN THAT THERE ARE LOTS OF OTHER WAYS TO
GET THERE, AND THAT WE ARE GOING TO GET THERE ANOTHER WAY.
THE COURT:

WELL, AGREEMENT TO BE BOUND WOULD BE

8

CERTAINLY COMPELLING.

9

AGREEMENT AND LET THE TEXAS COURT KNOW THAT, IT MIGHT CHANGE

10
11
12

AND IF THEY WERE TO MAKE SUCH AN

THE SITUATION.
SO, I'LL TAKE -- DID YOU WANT TO RESPOND?
MR. STEVENSON:

A COUPLE OF QUICK POINTS, YOUR HONOR.

13

ONE, ON THE ISSUE OF ANDROID OPEN SOURCE DOESN'T INFRINGE.

14

SO MY COMMENTS ARE VERY CLEAR AND THEY AREN'T EVER GOING TO BE

15

MISCONSTRUED, WHAT I'M SAYING IS THAT OUR PATENTS HAVE

16

HARDWARE AND SOFTWARE ELEMENTS TO THEM.

17

LOOK AT AN EXECUTABLE FILE OR A FLOPPY DISK AND SAY THAT MEETS

18

ALL OF THE ELEMENTS.

19

YOU NEED HARDWARE ELEMENTS IN ADDITION.

20

THEY AREN'T JUST ABSTRACT SOFTWARE PATENTS.

21

NUMBER ONE.

22

AND SO YOU CAN'T JUST

EVEN THOUGH IT MAY MEET SOME OF THEM,
THEY COVER HANDSETS.
THAT'S POINT

POINT NUMBER TWO, ON THE CUSTOMER SUIT EXCEPTION, THE

23

CUSTOMER SUIT CASES DEAL WITH A MANUFACTURER WHO, FOR

24

INSTANCE, MANUFACTURES A TV, SELLS IT THROUGH A RETAILER, AND

25

SOMEBODY SUES THE RETAILER AND/OR THE MANUFACTURER, BUT THE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

16

1

DIFFERENCE IN THOSE CUSTOMER SUITS ARE, IN THOSE, THE

2

MANUFACTURER AND THE RETAILER ARE JOINT TORTFEASORS JOINTLY

3

AND SEVERALLY LIABLE.

4

HERE, ALTHOUGH GOOGLE IS TRYING TO INVOKE THE CUSTOMER

5

SUIT EXCEPTION, THE REALITY IS, THEY ARE NOT SAYING IF THERE'S

6

INFRINGEMENT WE ARE JOINTLY AND SEVERALLY LIABLE WITH THE

7

HANDSET MAKERS.

8

ADJUDICATION.

THAT'S THE FREE SHOT.

THE COURT:

9
10

WHAT THEY ARE TRYING TO DO IS SAY WE WANT AN
AND IF WE LOSE --

I'M SORRY, WE, GOOGLE, WANT AN

ADJUDICATION OF?
MR. STEVENSON:

11

GOOGLE WANTS AN ADJUDICATION OF

12

ANDROID IN THE ABSTRACT.

13

THEY WIN, WE HAVE NOW PROVEN HANDSETS DON'T INFRINGE ANY OF

14

ROCKSTAR'S PATENTS.

15

SAY THIS RULING DOESN'T APPLY TO THE HANDSETS.

16

YOUR CASE, ROCKSTAR, INDIVIDUALLY AGAINST EACH OF THE HANDSET

17

MAKERS.

18

THEN THEY WANT TO BE ABLE TO SAY IF

BUT IF THEY LOSE, THEY WANT TO BE ABLE TO
GO AND PROVE

IN FACT, ALTHOUGH MR. WARREN POINTED TO INFRINGEMENT

19

CONTENTIONS, WE DON'T HAVE THE SOURCE CODE YET.

20

GET THE SOURCE CODE, WE ARE GOING TO CUSTOMIZE THE

21

INFRINGEMENT CONTENTIONS FOR EACH ONE OF THE DEFENDANTS.

AS SOON AS WE

22

SO WHAT THAT LEADS TO IS A SITUATION WHERE, YOUR HONOR,

23

GOOGLE WANTS TO GET AN ADJUDICATION HERE THAT IF IT WINS IT

24

CAN SAY BROADLY EXEMPTS THE INDUSTRY, BUT IT IF IT LOSES,

25

GOOGLE WANTS TO BE ABLE TO SAY, WELL, THIS IS JUST AN

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

17

1

ADJUDICATION OF GOOGLE.

2

INFRINGEMENT BY HTC OR LG, YOU'VE GOT TO GO PROVE AN

3

INFRINGEMENT CASE AGAINST THEM.

4

ROCKSTAR, IF YOU WANT TO SHOW NOW

SO THEY WOULD GET -- IF THERE'S A TRIAL HERE AND A TRIAL

5

IN TEXAS, GOOGLE WOULD GET TWO BITES AT THE NONINFRINGEMENT

6

APPLE IN THEIR VIEW.

7

ISSUE FOR THE COURT TO ADDRESS BECAUSE IF WE ARE GOING TO HAVE

8

PARALLEL PROCEEDINGS, I THINK ONE THING AT LEAST YOUR HONOR

9

OUGHT TO TAKE INTO ACCOUNT IN EXERCISING YOUR DISCRETION IS

10
11

THAT'S WHY THIS BECOMES AN IMPORTANT

THE FAIRNESS OF PARALLEL PROCEEDINGS.
I THINK THAT'S PROBABLY WHAT UNDERLIED YOUR QUESTION ABOUT

12

WOULD THE TEXAS DEFENDANTS AGREE TO BE BOUND BY INVALIDITY.

13

IT'S THE SAME CONCEPT HERE AS TO INFRINGEMENT.
MR. WARREN:

14
15
16

YOUR HONOR, IF I CAN RESPOND VERY

BRIEFLY TO THAT.
I DON'T THINK ANY CLIENT HAS EVER DESCRIBED MAJOR FEDERAL

17

PATENT LITIGATION AS A FREE SHOT.

18

DISRUPTIVE.

19

THE HALLOWEEN CASES.

20

TO BE INVOLVED.

21

CLIENT.

22

OBVIOUSLY IT'S INCREDIBLY

GOOGLE, AS YOU KNOW, WAS NOT SUED BY ROCKSTAR IN
WE BROUGHT THIS CASE BECAUSE WE WANTED

THAT WAS A SIGNIFICANT DECISION BY THE

IT IS THE OPPOSITE OF A FREE SHOT.

I WOULD ALSO NOTE THAT WE ARE NOT ASKING FOR SEPARATE

23

TRIALS IN THIS COURT AND IN TEXAS.

24

TRIAL IN THIS COURT.

25

ARE TRYING TO, IN SOME WAY, HAVE IT BOTH WAYS, I DON'T FULLY

WE ARE ASKING FOR ONE

SO, TO THE EXTENT THAT COUNSEL SAYS WE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

18

1
2
3
4

UNDERSTAND THAT.

BUT THAT'S NOT ACTUALLY WHAT WE WANT.

WE WANT EVERYTHING TO BE RESOLVED HERE IN THIS COURTROOM
IN A TRIAL BEFORE YOUR HONOR.

THAT'S WHAT WE ARE SEEKING.

AND, YOU KNOW, TO THE EXTENT THAT, YOU KNOW, COUNSEL IS

5

NOW CHANGING WHAT HE SAYS ABOUT THE ANDROID PLATFORM, I THINK

6

THAT IS AN EXTREMELY IMPORTANT REASON WHY THAT ISSUE, WHICH IS

7

AT ISSUE HERE AND IS NOT IN TEXAS, SHOULD BE RESOLVED.

8

WANT COMPLETE RESOLUTION AS TO THE FULL SCOPE OF THEIR

9

INFRINGEMENT CONTENTIONS AGAINST GOOGLE, AND IT SOUNDS LIKE WE

WE

10

ARE GOING TO GO GET IT IN THIS COURTROOM ON SEVEN PATENTS.

11

ARE NOT GOING TO GET IT IN TEXAS EVEN ON THREE PATENTS.

12
13

THE COURT:

WE

OKAY.

WELL, WE'LL GO AHEAD AND HAVE THE CASE MANAGEMENT

14

CONFERENCE.

15

MIGHT ADD THAT I'M ALSO INCLINED TO DENY THE MOTION TO CERTIFY

16

AN INTERLOCUTORY APPEAL, WHICH I HAVEN'T GOTTEN OUT YET.

17

I'M INCLINED TO DENY THE MOTION TO TRANSFER AND I

SO LET'S ASSUME WE ARE GOING FORWARD.

I WILL TAKE INTO

18

ACCOUNT THE TEXAS SCHEDULE BECAUSE WHO KNOWS IF THAT CASE

19

ISN'T TRANSFERRED HERE, WHICH IT MAY NOT BE, YOU MAY END UP

20

WITH CASES IN BOTH COURTS.

21

CALL THE OTHER'S BLUFF.

22

WE'LL TRY TO ORGANIZE IT IN A WAY WHERE YOU'LL -- WE WILL HAVE

23

CLAIM CONSTRUCTION IN ONE PLACE FIRST, AND TRY TO COORDINATE

24

IT A LITTLE BIT.

25

AND IF THAT HAPPENS, ONE MIGHT

AND IF THAT DOESN'T HAPPEN, THEN

SO, IN TERMS OF SETTLEMENT -- IN TERMS OF DISCOVERY, YOU

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

19

1

HAVE A DISPUTE ABOUT THIS 150 HOURS OF DEPOS.

2

TO -- RATHER THAN TRY TO RESOLVE THAT, I'M GOING TO TAKE A

3

WILD GUESS AND FIGURE THAT YOU WILL HAVE MORE DISCOVERY

4

DISPUTES IN THE FUTURE, AND I'M GOING TO REFER YOU TO A

5

MAGISTRATE JUDGE TO TRY TO COME UP WITH A DISCOVERY PLAN THAT

6

WOULD ADDRESS HOURS OF DEPOSITION, WOULD ADDRESS COORDINATION

7

WITH THE TEXAS CASES IN THE EVENT THAT THOSE DO STAY IN TEXAS,

8

AND ANY OTHER DISPUTES THAT MIGHT COME ALONG.

9

YOU A REFERRAL.

10

I'M JUST GOING

SO WE WILL SEND

I WOULD LIKE YOU TO MEET AND CONFER AGAIN AND SEE IF YOU

11

CAN COME UP WITH AN AGREEMENT.

12

WANTS SOMETHING OTHER THAN WHAT'S IN THE FEDERAL RULES OF

13

CIVIL PROCEDURE, CAN FILE A MOTION FOR THAT TO GET YOURSELVES

14

IN FRONT OF A MAGISTRATE JUDGE.

15

IT IN MY PRETRIAL PREP ORDER, WHICH YOU CAN GET RIGHT THERE.

16

THERE'S A SCHEDULING ORDER, PRETRIAL PREP ORDER ATTACHED.

17

FILE A LETTER BRIEF, SORT OF GENERIC LETTER BRIEF AND THEN

18

THAT GETS YOU TO A MAGISTRATE JUDGE, AND THEN THAT PERSON WILL

19

HANDLE THIS AS WELL AS OTHER MATTERS.

20

IF YOU CAN'T, THEN WHOEVER

THERE'S A PROCEDURE FOR DOING

YOU

YOU PUT IN A STIPULATION FOR ALTERNATIVE DISPUTE

21

RESOLUTION TO TAKE PLACE BY PRIVATE MEDIATION 60 DAYS FROM A

22

CLAIM CONSTRUCTION ORDER.

23

IT BECAUSE I DON'T AGREE WITH IT.

24

PRIVATE MEDIATOR, AND WHAT I WOULD LIKE YOU TO DO -- YOU CAN

25

ORGANIZE ALL YOUR FRIENDS IN TEXAS, AND I WOULD LIKE ALL OF

THAT'S WAY TOO LATE.

I DIDN'T SIGN

I WOULD LIKE YOU TO GO TO A

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

20

1

YOU ALL TO GET TOGETHER AND HAVE AN ALTERNATIVE DISPUTE

2

RESOLUTION PROCEDURE WITH A PRIVATE MEDIATOR THAT WILL COVER

3

BOTH THE TEXAS CASES AND THIS CASE.

4

THAT BECAUSE YOU ARE IN BOTH CASES, AND I CAN ASK -- I CAN

5

ORDER YOU TO DO IT AND ASK YOU TO ROUND UP ALL YOUR FRIENDS

6

AND GET THEM TO COME TOO.

7

MR. WARREN:

8

DO THAT, YOUR HONOR.

9

THE COURT:

10

MR. SOCHIA:

11

THE COURT:

AND I CAN ORDER YOU TO DO

I WILL CERTAINLY MAKE MY BEST EFFORTS TO
I'M CONFIDENT THAT I CAN.
YEAH.
WE HAVE -HOLD ON JUST A SECOND.

I DON'T WANT YOU

12

TO FIGHT ABOUT WHERE THE MEDIATION IS.

13

HERE, YOU CAN GET SOMEBODY IN TEXAS IF THEY HAVE PEOPLE IN

14

TEXAS.

15

SOMETHING LIKE THAT, BUT I WOULD LIKE FOR ALL OF YOU TO

16

PARTICIPATE IN THAT.

17

YOU CAN GET SOMEBODY

YOU CAN GET SOMEBODY IN CHICAGO, OR DENVER, OR

WHAT DID YOU WANT TO SAY?
MR. SOCHIA:

18
19

ACTIONS.

20

WE HAVE AN AGREED MEDIATOR IN THE TEXAS

FOLSOM.

21

SO I WOULD ASK MR. WARREN IF WE CAN JUST USE JUDGE

MR. WARREN:

AS LONG AS YOU WON'T HOLD IT AGAINST ME

22

AND SAY THAT THE TEXAS ACTION IS PROGRESSING FASTER THAN THIS

23

ONE AS A RESULT OF THAT AGREEMENT.

24

MR. SOCHIA:

25

THE COURT:

I WON'T.
WHO IS THAT, A RETIRED JUDGE IN TEXAS?

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

21

1

MR. SOCHIA:

2

THE COURT:

3

YES, YOUR HONOR.
THAT'S FINE.

THEN DO THAT.

I WOULD LIKE

YOU TO DO IT IN 90 DAYS.

4

THE CLERK:

SEPTEMBER 24TH.

5

THE COURT:

FOR STARTERS.

AND IF YOU DON'T SETTLE IN

6

90 DAYS, YOU CAN KEEP ON HIS SCHEDULE AND COME AGAIN WHEN

7

YOU'VE GOT MORE INFORMATION.

8

MR. WARREN:

9

MY LEAD COUNSEL, MR. VERHOOVEN, HAS

REMINDED ME THAT I'M ACTUALLY NOT TOTALLY AUTHORIZED TO AGREE

10

TO JUDGE FOLSOM, SO WE WILL MEET AND NEVER ABOUT THAT AT A

11

LATER TIME.

12

THE COURT:

IF YOU CAN'T AGREE ON HIM, THEN TRY TO

13

AGREE ON SOMEBODY.

14

OF YOU GIVE ME THREE NAMES AND I'LL PICK SOMEBODY.

15
16
17

IF YOU CAN'T AGREE ON ANYBODY, THEN EACH

MR. VERHOOVEN:

I'M CONFIDENT WE WILL REACH

AGREEMENT, YOUR HONOR.
THE COURT:

WITH RESPECT TO THE SCHEDULING, YOUR

18

THING IS SO COMPLICATED I CAN'T REALLY FOLLOW IT.

19

HAVE A STATEMENT OF WHAT IT SHOULD BE AND THEN SOMEONE ELSE

20

HAS ADDITIONAL DATES.

21
22

YOU EACH

(SIMULTANEOUS COLLOQUY)
THE COURT:

I HAVEN'T HAD A CHANCE TO COMPARE THE TWO

23

TO EACH OTHER.

24

OFTEN DO CLAIM CONSTRUCTION AND CASE DISPOSITIVE MOTIONS

25

TOGETHER AS OPPOSED TO DOING CLAIM CONSTRUCTIONS ON ONE DATE

WHAT I WILL SAY IS THAT I DON'T -- WELL, I

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

22

1
2

AND SUMMARY JUDGMENT MOTIONS LATER.

I PREFER THAT.

THE ONLY REASON I WOULDN'T DO THAT WOULD BE IF THERE WERE

3

REALLY CLAIM CONSTRUCTION ISSUES THAT WERE REALLY QUITE

4

SEPARATE FROM THE MERITS, THAT DIDN'T NEED MUCH DISCOVERY,

5

THAT WOULD BE SOMEHOW MORE EFFICIENT TO DO SEPARATELY.

6

THAT WERE THE CASE AND YOU BOTH AGREED TO THAT, I WOULD

7

CONSIDER IT.

8

TO DO THEM ALL AT ONCE.

9

AND IF

BUT GENERALLY SPEAKING, I FOUND IT MORE HELPFUL

THE OTHER ADVANTAGE TO DOING THEM ALL AT ONCE IN THIS

10

PARTICULAR CASE WOULD BE THAT MIGHT MEAN THAT IF THE OTHER

11

CASES STAY IN TEXAS, THAT THE CLAIM CONSTRUCTION THERE WOULD

12

BE DONE BEFORE WE GET TO IT HERE, AND THEN I WOULD HAVE THE

13

BENEFIT OF LOOKING AT WHAT THE TEXAS JUDGE HAD DONE WITH CLAIM

14

CONSTRUCTION.

15

SO I DON'T KNOW IF YOU HAVE THOUGHTS AT THE MOMENT AS TO

16

WHETHER THERE'S SOME STRONG ADVANTAGE HERE TO DOING CLAIM

17

CONSTRUCTION SEPARATELY OR WHETHER IT'S AGREEABLE TO DO IT

18

TOGETHER.

19
20

MR. WARREN:

HAVE A HAND-UP THAT SUMMARIZES THE PROPOSALS AND LOCAL RULES.

21

THE COURT:

22

MR. SOCHIA:

23
24
25

YOUR HONOR, AS A PRELIMINARY MATTER, I

OH, OKAY.
FROM ROCKSTAR'S PERSPECTIVE, WE ARE FINE

CONSOLIDATING CLAIM CONSTRUCTION WITH SUMMARY JUDGMENT.
MR. WARREN:

SO, OUR VIEW IS A LITTLE DIFFERENT.

KNOW YOUR HONOR IS SURPRISED BY THAT.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

I

23

1

OUR VIEW IS THAT ACTUALLY HAVING A CLAIM CONSTRUCTION

2

HEARING THAT JUST TALKS ABOUT THE CLAIMS OFTEN SEPARATELY FROM

3

THE ACCUSED PRODUCTS CAN SIGNIFICANTLY NARROW THE ISSUES AND

4

IS OFTEN ABLE TO RESOLVE THINGS AND POTENTIALLY CAUSE MULTIPLE

5

PATENTS TO DROP OUT BEFORE YOU GET TO DISPOSITIVE MOTIONS,

6

WHICH HELPS EVERYBODY BECAUSE WE -- I DON'T THINK ANYONE

7

THINKS WE ARE GOING TO TRIAL ON SEVEN PATENTS.
THE COURT:

8
9

THEM TOGETHER.

THAT CAN HAPPEN, BUT MY DEFAULT IS TO DO

SO I WOULD NEED TO HEAR SOMETHING THAT WOULD

10

TELL ME, WELL, IN THIS CASE WE HAVE THESE ISSUES THAT REALLY

11

ARE SEPARATE AND THAT AREN'T -- IT'S NOT GOING TO HELP YOU TO

12

KNOW WHAT THE ACCUSED PRODUCTS ARE, AND SO ON.

13

SO, IF YOU HAVE SOMETHING TAILORED TO THIS CASE, THAT

14

WOULD BE OF INTEREST.

15

DEFAULT, BUT IT'S NOT MY DEFAULT.
MR. WARREN:

16
17

TIME.

AND I THINK YOUR DEFAULT CLEARLY

PREVAILS, YOUR HONOR.

18

BUT AS A DEFAULT MODE, THAT MAY BE YOUR

I WOULD LIKE A BRIEF AMOUNT OF TIME TO -MR. VERHOOVEN:

19
20

I DON'T -- I DON'T HAVE THAT AT THIS

HONOR.

21

MR. WARREN:

22

MR. VERHOOVEN:

23

IF I COULD JUST SAY ONE THING, YOUR

YEAH.
AS I UNDERSTAND IT, THERE'S SEVEN

PATENTS.

24

MR. WARREN:

25

MR. VERHOOVEN:

SEVEN PATENTS.
DIFFERENT PATENT FAMILIES, SO THEY

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

24

1

ARE NOT ALL PART OF THE SAME PATENT.

2

BRIEFING YOUR HONOR IS GOING TO GET IF WE DO A SINGLE MARKMAN

3

JUST BECAUSE THERE'S SO MANY PATENTS AND DIFFERENT FAMILIES,

4

IS GOING TO BE A HUGE AMOUNT --

5
6
7
8
9

THE COURT:

SO THE AMOUNT OF

EXCEPT YOU WILL BE LIMITED BY THE NUMBER

OF CLAIMS THAT YOU CAN PURSUE.
MR. VERHOOVEN:

BUT IF THAT'S THE CASE, IF WE ARE

LIMITED -- THAT'S A GOOD POINT, YOUR HONOR.
BUT I STILL FEEL THAT IN MY EXPERIENCE, WITH THAT MANY

10

PATENTS AND THAT MANY DIFFERENT PATENT FAMILIES, IF YOU

11

COMBINE THE TWO, SUMMARY JUDGMENT AND CLAIM CONSTRUCTION, THE

12

NUMBER OF ISSUES THAT YOU'RE GOING TO GET IS GOING TO BE MUCH

13

LARGER THAN IF YOU DID IT IN A STAGED PROCESS WHERE YOU KNOW

14

YOU ARE GOING TO GET ALL THE CLAIM CONSTRUCTION ISSUES, BUT

15

YOU'RE PROBABLY GOING TO GET A LOT LESS ON THE SUMMARY

16

JUDGMENT SIDE AS A RESULT OF DOING THEM IN A STAGED PROCESS.

17

WHEREAS IF WE DO IT TOGETHER, WE ARE NOT GOING TO KNOW THE

18

RESULTS OF ALL THE CLAIM CONSTRUCTIONS.

19

WITH ONE, TWO, OR THREE PATENTS, THAT'S FINE.

20

TALKING ABOUT SEVEN DIFFERENT PATENT, SEVEN DIFFERENT PATENT

21

FAMILIES, A HEAVILY LITIGATED CASE, I CAN SEE EITHER A LARGE

22

BRIEFING OR US BEING IN A SITUATION WHERE WE DON'T HAVE THE

23

PAGES TO BRIEF ALL THE DIFFERENT ISSUES THAT ARE GOING TO BE

24

COMING UP.

25

AND IN A SMALLER CASE
IF YOU ARE

SO THAT'S JUST MY TWO CENTS, YOUR HONOR.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

25

THE COURT:

1
2

I WILL USE THIS CHART THEN.

DID YOU GIVE

HIM ONE?

3

MR. WARREN:

I DID.

4

MR. SOCHIA:

YES.

5
6
7

IT'S THE FIRST TIME I'VE SEEN IT,

YOUR HONOR, BUT WE WILL WALK THROUGH IT, I SUPPOSE.
THE COURT:

IT'S A COMPILATION OF WHAT'S IN THE CASE

MANAGEMENT STATEMENT, I GUESS --

8

MR. WARREN:

9

THAT'S ALL IT IS, YOUR HONOR.

10

THE COURT:

UNLESS WE HAVE MADE A TERRIBLE ERROR,

IN A MORE READABLE WAY.

11

LET'S GO WITH JULY 24TH FOR INFRINGEMENT CONTENTIONS.

12

AUGUST 25TH FOR INVALIDITY CONTENTIONS.

13

SEPTEMBER 8TH FOR PROPOSED TERMS.

14

SEPTEMBER 29TH FOR PRELIMINARY CLAIM CONSTRUCTIONS.

15

YOU WANTED TO FILE AMENDED PLEADINGS ON JANUARY 8TH.

16

THAT'S WAY TOO LATE.

LET'S SAY 60 DAYS FOR AMENDED

17

PLEADINGS -- YOU KNOW, SOMETHING NEW COMES UP THAT YOU

18

COULDN'T ANTICIPATE, YOU CAN ALWAYS MOVE FOR LEAVE TO AMEND,

19

BUT AS THE DEFAULT 60 DAYS.

20

MR. WARREN:

21

THE CLERK:

AUGUST 25TH.

22

THE COURT:

AUGUST 25TH.

23
24
25

OF COURSE, YOUR HONOR.

AND THE FACT DISCOVERY, WHAT'S THE END OF FACT DISCOVERY
IN THE TEXAS CASE?
MR. WARREN:

I HAVE THAT, YOUR HONOR.

HANG ON.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

26

1
2
3
4
5

(PAUSE IN THE PROCEEDINGS.)
THE CLOSE OF FACT DISCOVERY IN THE TEXAS CASE IS
JANUARY 23RD OF 2015.
THE COURT:

OKAY.

SO WE WILL GO WITH THAT, TOO.

JANUARY 23RD OF 2015, CLOSE OF FACT DISCOVERY.

6

INITIAL EXPERT REPORTS JANUARY 29TH.

7

RESPONSIVE EXPERT REPORTS FEBRUARY 19TH.

8

CLOSE OF EXPERT DISCOVERY MARCH 6TH.

9

WE'LL HEAR CLAIM CONSTRUCTION AND CASE DISPOSITIVE MOTIONS

10

AROUND ABOUT APRIL 30TH, BUT ON A THURSDAY.

11

IS A THURSDAY, APRIL 30TH.

12

MR. WARREN:

13

SO LET'S -- THAT

ABOUT THE THURSDAYS.

14
15
16
17
18

THE COURT:

WE DID READ YOUR HONOR'S STANDING ORDER

AND THE TRIAL CAN'T BE ANY SOONER THAN 90

DAYS AFTER THAT, AND EVEN 90 DAYS WOULD BE PUSHING IT.
SO, LET'S SAY -- WELL, YOU HAVE YOUR TRIAL IN TEXAS IN
JULY, SO LET'S SAY SEPTEMBER FOR TRIAL.
AND THEN GOING BACK TO THE CLAIM CONSTRUCTION AND CASE

19

DISPOSITIVE MOTIONS, WE'LL HAVE THE PLAINTIFF FILE -- NO,

20

WELL, YOU'RE REALLY SORT OF THE DEFENDANT.

21

YOU THE PLAINTIFF.

22

YOUR PROPOSED CLAIM CONSTRUCTIONS AS WELL AS ANY CASE

23

DISPOSITIVE MOTIONS THAT YOU HAVE.

SO WE WILL CALL

YOU FILE SIX WEEKS BEFORE THE 30TH ALL OF

24

FOUR WEEKS BEFORE APRIL 30TH, YOU FILE YOUR CLAIM

25

CONSTRUCTIONS, YOUR OPPOSITION TO THEIR SUMMARY JUDGMENT

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

27

1

MOTION AND YOUR OWN SUMMARY JUDGMENT CLAIMS ALL IN A SINGLE

2

BRIEF, PRESUMPTIVELY OF 25 PAGES, ALTHOUGH YOU CAN ASK FOR

3

MORE IF YOU NEED THEM.

4

A WEEK AFTER THAT, YOU HAVE YOUR REPLY ON YOUR CLAIM

5

CONSTRUCTION, YOUR REPLY ON YOUR MOTION, AND YOUR OPPOSITION

6

TO THEIR MOTION.

7
8
9
10
11

AND A WEEK AFTER THAT, YOU HAVE YOUR REPLY ON YOUR CROSS
MOTION.
AND THAT HOPEFULLY WILL END UP WITH TWO WEEKS UNTIL THE
HEARING DATE, AND THEN WE WILL HEAR IT ALL.
NOW, IF YOU BOTH SHOULD HAPPEN TO AGREE THAT THERE REALLY

12

ARE THINGS THAT COULD BE PRODUCTIVELY DONE ON A CLAIM

13

CONSTRUCTION ORDER DIVORCED FROM SUMMARY JUDGMENT AND YOU WANT

14

TO AGREE ON A DATE FOR THAT ON A BRIEFING SCHEDULE FOR THAT, I

15

WOULD -- YOU CAN WRITE TO ME AND ASK TO DO IT THAT WAY.

16

YOU BOTH AGREE TO IT, I WOULD BE FAR MORE LIKELY THAN IF I GOT

17

ONE OF THESE I'M SURE I'LL WIN SO PLEASE DO IT EARLY KINDS OF

18

THINGS.

19

FAILING THAT, WE WILL DO IT ALTOGETHER.

IF

AS I SAY, IN THIS

20

CASE IT IS PARTICULARLY HELPFUL TO DO IT THAT WAY BECAUSE THAT

21

WILL LEAVE YOU TO DO YOUR CLAIM CONSTRUCTION IN TEXAS IN

22

JANUARY AND GIVE A COUPLE OF MONTHS AFTER THAT TO SEE IF THAT

23

HELPS ANYTHING WITH THIS CASE.

24

MR. WARREN:

25

I'M CONFIDENT THERE WON'T BE A HEARING

IN TEXAS, YOUR HONOR, BECAUSE THE CASES WILL BE TRANSFERRED UP

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

28

1
2
3

HERE.
THE COURT:

WE'LL SEE.

IN TERMS OF THE TRIAL IN

SEPTEMBER, I IMAGINE SOMEONE HAS MADE A JURY DEMAND?

4

MR. WARREN:

YES, YOUR HONOR.

5

MR. SOCHIA:

YES, YOUR HONOR.

6

THE COURT:

7

MR. WARREN:

WE ESTIMATED 20 DAYS, YOUR HONOR.

8

MR. SOCHIA:

AND ROCKSTAR, THE DEFENDANTS, REQUESTED

9
10
11
12
13

AND DID YOU HAVE A TIME ESTIMATE?

TEN DAYS.
THE COURT:

OKAY.

WE WILL GO WITH TEN THEN.

AND WE WILL START IT ON SEPTEMBER 14TH.

AND WE WILL HAVE

A PRETRIAL CONFERENCE ON SEPTEMBER 2ND AT 2:00 O'CLOCK.
AND THE PRETRIAL PREP ORDER THAT YOU GOT WILL TELL YOU ALL

14

THE PAPERWORK THAT NEEDS TO BE FILED IN ADVANCE OF THE

15

PRETRIAL CONFERENCE.

16
17

AND I THINK THAT'S ALL I HAVE UNLESS YOU ALL HAVE
SOMETHING ELSE.

18

MR. WARREN:

NO, YOUR HONOR.

19

MR. SOCHIA:

THAT'S ALL FROM US.

20

THE COURT:

21

MR. WARREN:

THANK YOU.

22

MR. SOCHIA:

THANK YOU, YOUR HONOR.

23

OKAY.

(PROCEEDINGS CONCLUDED AT 2:50 P.M.)

24
25

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

CERTIFICATE OF REPORTER
I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE
UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY
CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE
RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

_____________________________
DIANE E. SKILLMAN, CSR 4909, RPR, FCRR
THURSDAY, JULY 10, 2014

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]