Leader Technologies Inc. v. Facebook Inc.

Filing 607

Official Transcript of Final Pretrial Conference held on 07-16-10 before Judge Leonard P. Stark. Court Reporter/Transcriber Deanna Warner. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/18/2010. Redacted Transcript Deadline set for 8/30/2010. Release of Transcript Restriction set for 10/26/2010. (lad)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF DELAWARE

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___________________________________________________
LEADER TECHNOLOGIES,
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INC., a Delaware
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corporation,
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PLAINTIFF,
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v.
) C.A. No. 08-862 JJF-LPS
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FACEBOOK, INC., a
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Delaware corporation,
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DEFENDANT.
)
____________________________________________________

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Friday, July 16, 2010
10:00 a.m.
Pretrial Hearing
Courtroom 2A

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844 King Street
Wilmington, Delaware

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BEFORE:

THE HONORABLE LEONARD P. STARK,
United States District Court Magistrate

APPEARANCES:
POTTER ANDERSON & CORROON, LLP
BY: PHILIP ROVNER, ESQ.
BY: JONATHAN CHOA

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-andKING
BY:
BY:
BY:

& SPALDING LLP
PAUL ANDRE, ESQ.
JAMES HANNAH, ESQ.
LISA KOBIALKA, ESQ.
Counsel for Plaintiff

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(APPEARANCES CONTINUED)
BLANK & ROME, LLP
BY: STEVEN L. CAPONI, ESQ.
-andCOOLEY, GODWARD & KRONISH, LLP
BY: HEIDI L. KEEFE, ESQ.
BY: MARK WEINSTEIN, ESQ.
BY: MIKE RHOADES, ESQ.
BY: JEFFREY NORBERG, ESQ.
BY: ELIZABETH STAMESHKIN, ESQ.
Counsel for Defendant

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THE CLERK:

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now in session.

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All rise.

Court is

now presiding.

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The Honorable Leonard P. Stark

THE COURT:

Good morning,

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THE CLERK:

Please be seated.

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THE COURT:

Nice to see you all.

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Let's begin by noting the

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everybody.

appearances on the record, please.

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MR. ROVNER:

Your Honor, Phil

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Rovner from Potter Anderson for the plaintiff,

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Leader Technologies.

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With me from King and Spalding is
Paul Andre, Lisa Kobialka, and James Hannah.

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THE COURT:

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Good morning.

MR. ROVNER:

And in the back is my

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associate, Jonathan Choa, and Leader's president

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and CEO, Michael McKibben.

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THE COURT:

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MR. CAPONI:

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Honor.

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Welcome.
Good morning, Your

Facebook.

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Steven Caponi with Blank Rome for

With me today from Cooley is
Miss Heidi Keefe, Mike Rhoades, Jeffrey Norberg,
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Mark Weinstein, my supporting cast, and I'll get

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all their names wrong, so I won't try to get

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that in the background there.

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THE COURT:

Welcome to all of you.

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This is the time for our second

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pretrial conference in anticipation of our trial

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that will start on Monday morning.

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pretty busy agenda, so I will get right to it.

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We have a

I want to start by giving you

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rulings, first on the Daubert issue that was

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pending and then on summary judgment, and after

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that we'll turn to the exhibits issues that you

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all gave us letters on yesterday and today.

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First, on the Daubert issue, it

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was Facebook's motion, I believe it was DI 412

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regarding Dr. Herbsleb's testimony.

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course, as you all know, I ruled that the motion

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was granted with respect to Dr. Herbsleb being

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precluded from testifying regarding his opinion

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on the lack of the materiality of certain prior

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art on which Facebook's invalidity arguments

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rely.

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Earlier of

I ruled, with respect to
precluding that materiality testimony, quote,
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"The materiality of certain prior art

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references goes solely to the

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inequitable conduct defense, which is

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not part of the forthcoming trial.

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Dr. Herbsleb will not be permitted to

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testify to matters that go solely to

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inequitable conduct."

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That's the end of the quote.

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Also earlier I also denied a

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motion with respect to the effort to preclude

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Dr. Herbsleb from testifying regarding his

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opinion on the cumulativeness of this prior art

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that Facebook seeks to rely on.

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Now, having given the matter

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further consideration and having ordered the

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parties to address it as they did in the letter

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briefs and having reviewed those briefs again, I

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conclude that I erred in denying Facebook's

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motion with respect to Dr. Herb's testimony

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regarding cumulativeness, and that's

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particularly paragraphs fifty-six through

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seventy-two of Dr. Herb's expert report.

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As we know, the inequitable

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conduct issue is separated for the trial, and in
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my view, the concept of cumulativeness, just

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like the concept of materiality, goes solely to

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inequitable conduct and not to validity.

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The validity inquiry is going to

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rely solely on a comparison between the prior

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art that Facebook puts before the jury and the

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claims of the patent in suit as they have been

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construed by the Court; therefore, whether

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Facebook's prior art would have been material to

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the PTO or whether it would have been cumulative

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of other prior art before the PTO and,

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therefore, by definition, not material is not

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relevant to the issue of validity.

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As Facebook points out in its

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July 12, 2010, letter, the prior art that would

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be cumulative for purposes of inequitable

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conduct may nonetheless support an invalidity

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challenge to a patent due to obviousness or

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anticipation, so this trial will be about -- it

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will not be about the PTO or what the PTO would

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have done with this other prior art.

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Dr. Herb's use of the word

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"cumulative" just Reich the use of the word

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"material" also does create a potential for
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confusion, and it's not necessary.

His

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testimony will be a comparison between

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Facebook's prior art -- that is, the prior art

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on which Facebook relies -- and the claims of

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the patent in suit.

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It follows from that as well that

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Facebook's expert, Dr. Greenberg, is not going

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to be testifying about what the PTO reviewed,

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which is an issue we addressed earlier, other

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than he can note that the PTO did review the

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prior art that's cited on the face of the

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patent.

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Dr. Herbsleb issue.

So that's my ruling with respect to the

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On summary judgment, I don't have

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an opinion yet prepared for you.

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opinion sometime down the road, but what it will

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say in substance is that on Facebook summary

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judgment motion number one, which went to

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invalidity, it is the IPXL motion, I'm going to

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be ordering further briefing, full briefing, on

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that motion.

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You'll get an

Number one, the parties are

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directed to propose a briefing schedule within

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ten days of the conclusion of the trial.

There

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will be a number of procedural issues, I

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imagine, that we'll need to discuss after the

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conclusion of this trial, and this will be one

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of them, but we'll get full briefing on that

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motion number one sometime subsequent to this

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trial.

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The remaining motions for summary

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judgment, which have been described as motions

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two, three, five, and six, are all denied for

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reasons that will explain in an opinion that

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will be issued, as I say, sometime down the

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road.

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With that, I want to turn now to

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the objections to exhibits in the trial.

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all know, the Court initially overruled all of

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the exhibits and then provided an opportunity

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mechanism for the parties to move to reconsider

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the rulings on those objections, and both

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parties have moved for reconsideration.

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As you

And I want to first talk about

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Leader's motion for reconsideration of the

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denial of its objections to the Facebook

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exhibits, and we do have Facebook's response to

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these -- to Leader's motion, so I am prepared to
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give you my rulings in a moment on those.

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Let me first just say in general

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-- this was an issue that Leader raised in their

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letter.

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the parties should not be attempting to

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introduce exhibits where that exhibit would only

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be offered for a purpose that the Court has

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ruled is not part of the current trial or where

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the Court has issued a motion in limine with

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respect to that issue, so I do reiterate that

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point.

In general it is certainly true that

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Turning to the specifics of

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Leader's motion to reconsider, the first issue

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that Leader raises is they wish -- they object

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to Facebook evidence regarding legal opinions of

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third parties that include conclusions of law.

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The Court agrees with Leader and sustains its

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objections to these exhibits.

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The next category is Leader's

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objection to evidence that just goes to the

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opinions of Mr. McKibben.

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Leader on this one and sustains those

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objections.

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The Court agrees with

Next is descriptions of Leader's
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product after the critical date.

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that Facebook isn't going to be offering that

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evidence, so that issue appears to be moot.

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It appears

Next, the 35 U.S.C. Section 282

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issue, whether Leader was provided sufficient

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notice of the prior art on which Facebook

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relies.

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one, and therefore the objection continues to be

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overruled.

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The Court agrees with Facebook on this

Next category, communications with

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third-party financing companies.

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agrees with Leader that communications with the

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third-party financing companies are not relevant

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to the issues in this trial, and there would be

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-- the prejudice of putting in front of the jury

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evidence that shows Leader's efforts to obtain

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financing to support the litigation would be

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would substantially outweigh any probative value

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to the evidence that Facebook is offering;

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therefore, the Court agrees with Leader on that.

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The Court

Evidence regarding Facebook's

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patents.

The Court agrees with Leader, but also

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agrees that Facebook witnesses can testify

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generally as they're describing job
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responsibilities.
For instance, if they have some

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duties with respect to Facebook's patents, "I

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manage a portfolio of patents," something

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general like that, the jury can be told in

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passing that Facebook has patents, but there

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shouldn't be any reference to the specific

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substance of any Facebook patents.

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shouldn't be identified by number or title.

They

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They simply have nothing to do with the issues

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in the current trial.

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Next are what Leader describes as

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prejudicial character documents.

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appears to be moot based on Facebook's letter.

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Facebook indicates they're not offering those

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documents at trial.

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That issue

The litigation-derived documents,

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specifically Facebook seeks to introduce into

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evidence Leader's responses to interrogatories

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and responses to request for admission.

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Court agrees with Facebook on that, that

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Facebook may do that.

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evidence against Leader, and therefore, again,

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the Court agrees with Facebook.

The

Those are admissible as

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And the final issue that Leader

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raised has to do with exhibits that contain

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multiple documents.

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parties have now agreed to separate those

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exhibits, and the Court agrees with that and

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encourages you to do that.

It appears that both

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If -- Ms. Keefe, anything that you

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wish to say or add or get clarification on with

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respect to those rulings?

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free to take the podium.

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And if so, you're

MS. KEEFE:

Thank you, Your Honor.

I think it's mostly just a clarification.

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With respect to documents in which

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Mr. McKibben has actually made statements, if

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Mr. McKibben, while he's testifying on the

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stand, says something, opens the door, talks

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about things that are in those documents or

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makes statements that are inconsistent with

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them, are we allowed to use those documents in

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impeachment?

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THE COURT:

Certainly you can use

them in impeachment.
Now, do you envision also trying
to move them into evidence?
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MS. KEEFE:

Potentially, yes,

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especially given the fact that some of the

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issues in this case -- for example, the doctrine

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of equivalence -- specifically says you cannot

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recapture using the doctrine of equivalence that

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which has been disavowed by the inventor or the

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prior art.

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Some of those documents

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specifically indicate what Mr. McKibben told the

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public he did not invent, and so for evidentiary

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purposes, we would want to be able to show the

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jury what Mr. McKibben says he did not invent so

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that it cannot be recaptured by the doctrine of

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equivalence.

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THE COURT:

I'm going to give

Mr. Andre a chance to respond to that.
Were there other issues based on
what I just ruled that you wanted to raise?
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No, I think that's it.

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If Your Honor wanted to see a copy of a document

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along the lines of what I'm talking about, I'm

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happy to pass one up.

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THE COURT:

Let's hear from

Mr. Andre just on this point.
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MR. ANDRE:

Your Honor, on this

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point, this is something that usually the Court

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decides on post-trial motions.

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If anything, Mr. McKibben is not

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going to be talking about the doctrine of

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equivalence.

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kind of document to come in while he's on the

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stand.

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whatsoever for admitting these documents.

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There would be no reason for this

I don't think there's any basis

THE COURT:

What if they are --

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they tell me that some of the documents -- let's

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say, for instance, these communications with

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litigation financing companies -- contain

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statements by Mr. McKibben that will at least be

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relevant to their effort to impeach him,

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specifically whether or not there are

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circumstances under which that document itself

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could come into evidence.

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Do you envision any, perhaps even
beyond ensnarement?
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No, Your Honor.

If

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there's anything in there, it's Mr. McKibben's

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opinions about Facebook infringing the patent,

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like the patent is the best thing since sliced
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bread.

There's nothing there to impeach him.

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don't see them using those documents at all,

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other than for prejudicial reasons, to try to

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shine a bad light on Leader for trying to get

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financing.

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THE COURT:

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Ms. Keefe, come back.

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MS. KEEFE:

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Honor.

Okay.

I

Thank you.

Very briefly, Your

I think we can deal with the issue also

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by virtue of the fact that we would be using

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them for the purpose I mentioned.

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For example, one of the documents

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I'm talking about, Mr. McKibben specifically

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states, regarding the invention, "It is not

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internet cookie and history data.

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not e-commerce session data.

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snip or packet data.

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Bean session data.

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art and are not claimed by the 761."

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It is

It is not

It is not Java
All these are prior

This is the type of information we

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would like to be admitted.

If it helps, we

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would be willing to redact any other information

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from the document to prevent confusion, and if

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Your Honor wants, we could also deal with a
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limiting instruction.

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THE COURT:

Certainly it sounds to

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me like it would be proper impeachment, and I

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will be open to the possibility of allowing it

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to be admitted, but it would need to be

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redacted.

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Essentially the fact that Leader

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was soliciting financing to support this

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litigation is a fact I just think does not need

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to be disclosed to the jury, so I'm not going to

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permit any evidence to that effect.

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MS. KEEFE:

We understand, Your

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Honor, but with respect to other things, you are

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willing to entertain it as the documents come

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up?

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THE COURT:

Certainly, it's proper

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-- it sounds proper -- sounds like proper

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impeachment if you do what you say, and I'm

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willing to entertain allowing you to submit a

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redacted version of that.

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MS. KEEFE:

Thank you, Your Honor.

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THE COURT:

Let me turn to --

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MR. ANDRE:

May I address a couple

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issues as well?
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THE COURT:

I've already -- I've

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ruled on that issue, so let's move on.

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a lot of other issues to deal with.

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We have

We next have Facebook's objections

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to Leader's proposed evidence, so this is

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Facebook's motion for reconsideration of the

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denial of its objections, and there we haven't

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heard from Leader, so I will call on Mr. Andre,

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and if you wish to respond briefly to what you

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saw in the letter from Facebook, and my guess is

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you can find a way to tell me whatever else you

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were going to try to tell me a moment ago.

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MR. ANDRE:

Your Honor, I have a

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question about your earlier ruling.

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about the documents that had not been produced

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to us, and we still don't have the documents,

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and they're on the exhibit list.

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It was

We don't have the documents.

We

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exchanged exhibits recently, but we never had

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them through discovery.

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For example, one of the exhibits

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they marked is a piece of software we don't

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have.

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manual, but he never the looked at the software

Their expert said he looked at the user

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itself.

That's one issue we imagine they're

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going to try and play, show the software in

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action, and we've never seen it.

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So that's a question -- how do we
deal with that?

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THE COURT:

Before we leave today,

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I'm going to make sure we get back to that

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issue, so I'll ask you to keep track of it.

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MR. ANDRE:

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Will do.

With respect to, we just got this
letter brief.

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I'm doing this on the fly.
With respect to the financials and

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other damage-related documents, as we said in

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our letter brief, we're not going to be

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presenting any type of damages documents,

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especially those of the type attached to Exhibit

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A.

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out of the case, and we're not going to be using

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damage documents.

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We understand the Court has bifurcated that

To the extent we want to use any

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kind of testimony regarding commercial success

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as a secondary consideration of nonobviousness,

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I think we can do that without giving the

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damaging documents.

I think we do that with

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testimony showing the success of Facebook and

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possibly others to the extent we put that

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evidence forward.

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With respect to marketing

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documents, I think that's a little bit of a

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nebulous term.

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damages would be improper, I agree, but many

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times marketing documents are used for

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describing the product, and if that's considered

Marketing documents to show

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a marketing document, we have a right to use

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that for infringement.

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There's Federal Circuit law that

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says marketing documents can be used to prove

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infringement, and we're entitled to use those if

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there are those type of admissions in those

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documents.

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company, make certain admissions about how the

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product works, and that falls within the claims,

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and we're entitled to do so.

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Those are documents kept by the

So we're -- if it falls within the

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damages, we agree we will not put in the damages

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documents.

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Regarding the alleged hacking or
copying, the document they marked, the hacking
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document where Mr. Zuckerberg admitted to

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hacking into the Harvard server, we agree that's

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not going to be put in the evidence unless they

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open the door for it, and we can use that for

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impeachment if that comes up.

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As far as copying goes, the

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documents they're talking about, the white

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papers, that doesn't show copying.

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conceptionary induction to practice of our

That shows

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inventor, so we're entitled to show the fact

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that in 2002 we filed a provisional application

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and throughout 2003 we start publishing papers

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on that invention.

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Facebook claims that we're not

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entitled to the 2002 priority data.

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them 2003 priority data.

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does show the diligent reduction to practice, so

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there are reasons why that comes in.

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We've shown

If nothing else, that

There's no reason to keep it out.

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That's not prejudicial to Facebook, to show that

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we published our results after we filed our

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provision.

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The idea that Facebook was founded
in 2004, that's just stating a fact.

There's

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nothing prejudicial to the fact they were

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founded in 2004.

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they copied because of the timing.

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out after we filed our patents, after we

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published the short paper.

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We're not going to try to say
They came

Those white papers are important

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to show a lot of things actually, not only the

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conception and reduction to practice, but to the

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extent they try to make statements about what

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our technology did or did not do at that time

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period, we have those papers to demonstrate

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otherwise.

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With respect to the admissibility

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of character evidence regarding Mr. Zuckerberg,

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we have no intention of putting anything about

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the upcoming movie or book or newspaper articles

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or whatever they're complaining about.

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think there's anything that we would want to

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bring in along those lines.

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I don't

Documents relating to Leader's

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defense to Facebook inequitable conduct claims,

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I believe you already ruled on this, Your Honor.

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This is a cumulative issue, so I think that's

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moot at this point.
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The documents containing hearsay

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statements by Leader's witnesses.

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white paper that Mr. McKibben published

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regarding the use of the patent technology with

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the state of Louisiana.

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exceptions.

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to those type of documents.

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This is a

There's hearsay

There's several hearsay exceptions

Everything from business records
to present recollections and various other ones,

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their only basis is it's a hearsay document.

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have several exceptions to the hearsay.

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Mr. McKibben will be on the stand.

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extent we do put that in -- we're not sure we're

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putting it in or not, but if we do, we'll have

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the author of that paper on the stand, and there

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are exceptions to those type of documents going

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in.

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We

To the

To the extent it's pure hearsay

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and the author of the document -- we agree we're

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not going to put in documents that would be

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hearsay.

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e-mail and try to put that in evidence, and we

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request the same of Facebook, not to put in

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those type of hearsay documents as well.

Having one of our third party write an

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And then the Facebook technical

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documents.

I guess that's the last issue.

3

These are the documents that Your Honor ordered

4

them to produce to us, their technical

5

documents.

6

the ordinary course of business.

These were business records kept in

7

Facebook would have us try the

8

entire case on nothing but source code, and

9

there would not be a single exhibit of their

10

technology put into evidence, nothing for a

11

single appeal, and the jury obviously is going

12

to be lost.

13

These are the documents they

14

represent to this Court describe the technology

15

that the engineers use to write the source code

16

on, so every source-code module is written with

17

technical notes.

18

sort code, so the technical documents are relied

19

upon by our expert.

20

You don't sit down and write

He talks about what they say.

21

They were talked about in deposition testimony

22

we planned on playing with their engineers, so

23

it would be extremely prejudicial, and there's

24

no basis for precluding these technical
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documents.

2

THE COURT:

On the commercial

3

success, is there any chance that could be the

4

subject of stipulation?

5

founded in 2004 and has X number of millions of

6

users.

7

like that?

8
9

You know, Facebook was

Do you need more than a few simple facts

MR. ANDRE:

Not really.

For the

commercial success aspect of our secondary

10

consideration, I think that would be sufficient.

11

We wouldn't need documents per se.

12

At the same time, we do want to

13

tell the story.

14

especially jury trials, are issues of advocacy,

15

and we want to put things in temporal context,

16

and we would like them to hear Mark Zuckerberg,

17

the founder, talk about when he founded

18

Facebook, and we would like to let them hear

19

from the vice president of business development

20

how they obtained 400 million users.

21

At the end of the day, trial,

We don't want to be precluded from

22

putting forward our case to show these factual

23

issues, whereas a stipulation is evidentiarially

24

fine, for the jury, sometimes they want to hear
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it from the horse's mouth.

2

To the extent of commercial extent

3

as to number of users, I think we could probably

4

work out some kind of stipulation.

5

fine.

6

THE COURT:

That will be

Let me give whomever

7

would like to respond on these issues.

8

MR. RHOADES:

9
10
11

Your Honor.

You have a new face,

I'm Mike Rhoades from Cooley.

It

pleases me to be before Your Honor today.
I'm going to respond to two things

12

really quickly.

13

the secondary consideration of commercial

14

success, the faulty premise there is the

15

conditional fact has yet to be established,

16

namely that they're practicing the patent.

17

it confuses the jury to talk about all the

18

commercial success of Facebook, and, sort of,

19

suggest to them they make the link.

20

On your last point, which is

So

I'm more than comfortable with

21

what you proposed.

Indeed, I'm happy to say

22

during my opening that Facebook is a very

23

successful company.

24

people using it, twenty billion page views per

It has hundreds of millions

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day.

2
3

If there's something you want us
to promote, we'll do it.

4
5

That will solve it.

There's no mystery.
successful.

6

Facebook is

It's pretty obvious.
And then with respect to the issue

7

about the movie and books and newspaper, the

8

reason this came up -- I don't know if you've

9

seen it, but the trailer is now out.

It's an

10

Aaron Sorkin production, and the trailer is out,

11

and all we would request is that if you wouldn't

12

mind adding to the voir dire questions, just ask

13

anyone in the pool whether they've seen the

14

trailer or not because it would be material to

15

us.

16

And I want a stipulation from

17

counsel that we're not going to hear about

18

collateral newspaper articles.

19

lot of coverage in the last six months about

20

Facebook from soup to nuts, and I don't want to

21

hear that stuff because there's no bearing on

22

whether or not we're practicing the patent.

23
24

THE COURT:

There's been a

Usually I don't answer

questions, but I can tell you that I haven't
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seen the trailer, but your request is that we

2

should put it in the minds of our potential

3

jurors by asking them if they've seen it even if

4

they haven't heard of it?

5

MR. RHOADES:

It's a two-edged

6

sword.

7

it, I think my client would want me to know when

8

we're picking the jury.

9

THE COURT:

10

If someone is sitting there and had seen

If I were to do it, do

you know the title of the film?

11

MR. RHOADES:

The Social Network.

12

Maybe that's the way to do it.

Has anyone seen

13

a movie trailer called The Social Network?

14

Sounds like someone has seen it.

15

THE COURT:

16

Mr. Andre, I understood your

Thank you.

17

comments to indicate you're not going to be

18

making reference to articles or movies or

19

anything.

20

if I've got that right, and how do you feel

21

about the proposed voir dire question?

22

Let me just get you to confirm that,

MR. ANDRE:

Your Honor, I haven't

23

seen the trailer either.

I wasn't aware the

24

movie was coming out this fall.
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It seems to me, we're going to

2

cover it in the voir dire anyway when you ask

3

about Facebook.

4

jurors, my guess is they're going to go home and

5

look on the internet for the trailer itself, so

6

I think it's going to put that in their mind,

7

like Your Honor said, and they're going to go

8

home and look at it, and Facebook will use that

9

for a potential mistrial.

10

If you put that in the minds of

I'd prefer not to put it in their

11

minds at this point.

12

generally are you aware of Facebook and talk to

13

them on sidebar -- how are you aware of them,

14

have you seen any press recently -- without

15

having to put in the trailer.

16

on TV.

17

I think if you ask

THE COURT:

I haven't seen it

What about do you

18

agree not to be referring to articles and things

19

like that?

20

MR. ANDRE:

Absolutely, Your

21

Honor.

22

Facebook and the articles.

23

characterize that.

24

We have no intention of talking about
We wouldn't

I believe Ms. Kobialka had one
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question on the ruling.

2

THE COURT:

3

Facebook's motion for reconsideration.

4
5

I haven't ruled yet on

Mr. Rhoades, do you have anything
urgent?

6

MR. RHOADES:

The only thing I

7

wanted to add, Your Honor, with respect to these

8

two white papers, I think the testimony was that

9

the invention is circa 1999.

10

The white papers

are substantially later in time.

11

They were originally proffered in

12

the case, as you will recall, as part of the

13

copying theory that was advanced which I

14

understand is bifurcated.

15

I'm concerned this will be the

16

camel's nose under the tent, which is that we're

17

not going to say copying, we're going to do

18

everything we can on this side of the house to

19

line up facts and talk about commercial success

20

the timing of the white papers, the timing of

21

the launch.

22

It's going to be there.
I think if Your Honor would

23

entertain it, we might propose a limiting

24

instruction.

If the only purpose for the white

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papers is that they are evidence of reduction to

2

practice, I can live with that.

3

they're going to be used for the purpose of

4

trying to establish solely through temporal

5

proximity that there was copying on behalf of

6

Facebook.

7

THE COURT:

I'm concerned

Let me give you the

8

rulings on Facebook's motion for

9

reconsideration.

Facebook's motion for

10

reconsideration of the denial of their

11

objections to Leader's proposed evidence.

12

The first category is Facebook

13

financials and other documents relating to

14

damages.

15

that solely goes to damages is not part of this

16

trial, and I agree with Facebook that that

17

includes the type of financial statement and

18

other dollar-type evidence that is cited in

19

Facebook's letter motion.

20

I think everybody agrees that evidence

I do have to let Leader tell a

21

little bit of the story to establish commercial

22

success, but I really mean a little bit.

23

don't think it's going to be -- it's going to

24

take very much evidence to establish for the

I

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jury that Facebook is successful.

2

the number of users should pretty much do, it

3

and I'm going to keep a very careful check on

4

anything much beyond that.

5

Things like

And I do urge the parties, if you

6

can work out a stipulation, that would certainly

7

take care of the issue.

8

need to tell a story as well.

9

But I understand the

Next is what Facebook

10

characterizes as its marketing documents.

11

this one, too, there pretty much is common

12

ground here.

13

is a damages document and it's talking about how

14

successful Facebook is, then it should not be

15

offered in evidence.

16

Facebook as a product, then it may have a proper

17

purpose at trial, and so that will have to be, I

18

suppose, a document-by-document analysis as we

19

see what they are and how they are offered.

20

On

If the marketing document really

If it is a description of

But there should be no effort to

21

take what is really a financial statement or

22

financial document and offer it as a marketing

23

document because maybe it has one sentence

24

saying how wonderful Facebook is.
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With respect to hacking, I

2

reiterate my prior ruling.

3

reference to copying or hacking.

4

have nothing to do with the trial that is coming

5

up.

6

There should be no
Those issues

Specifically the white papers, it

7

sounds like they are admissible on the

8

reduction-to-practice point.

9

open to a limiting instruction, and there just

I will be very

10

should be no explicit or implicit effort to have

11

the jury believe that Mr. Zuckerberg copied,

12

that this was somehow a willful copying.

13

The issue is whether Facebook as a

14

product is practicing the elements of the claim

15

in the Leader patent.

16

Character evidence.

Sounds like

17

this issue is moot.

18

seeking to offer evidence with respect to

19

Mr. Zuckerberg's character.

20

That is, Leader isn't

Next is whether Leader can offer

21

evidence relating to prior art that was before

22

the PTO.

23

mean, other than pointing out that the face of

24

the Leader patent indicates that certain prior

I agree with Facebook on this one.

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art was before the PTO, which I said that

2

Mr. Greenberg can do, other than parties

3

eliciting evidence that that's what the face of

4

the patent says, this issue -- the issue, that

5

is, of what was actually examined by the PTO --

6

again is not part of the invalidity analysis at

7

issue in this trial.

8
9

Next is what Facebook
characterizes as hearsay documents containing

10

hearsay statements by Leader witnesses.

11

essentially agree with Facebook on this with the

12

limited exception that Mr. Andre noted:

13

author of the document is on the stand, it may

14

be that we have a hearsay exception, and it may

15

be that the document can come in.

16

I

If the

Next, what Facebook characterizes

17

as inadmissible hearsay publications.

18

with Facebook.

19

appears to be at issue in this category looks

20

like it is inadmissible hearsay, and here I'll

21

note that everybody has agreed there isn't going

22

to be general references to articles and media

23

coverage of Facebook.

24

I agree

The type of evidence that

And finally on the technical
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documents, whether Facebook is limited to using

2

the source code or can use the other technical

3

documents, I agree with Leader on this.

4

believe that this evidence may be helpful to the

5

jury.

6

hearsay, and it's up to Leader to determine how

7

it wants to use its time.

I

I certainly think it is not inadmissible

8

On the voir dire issue that came

9

up, I think the better exercise of discretion is

10

not to specifically put The Social Network film

11

trailer in the minds of jurors, but as you have

12

seen from the voir dire that I will use, we will

13

learn something about everybody's general

14

understanding of Facebook, and that may well be

15

an issue that needs to be explored in further

16

questioning by counsel as we bring the jurors

17

forward.

18

All right.

That takes us to other

19

issues that have been raised in the proposed

20

amended joint pretrial order, and here there's

21

some things I can tell you, and there are some

22

things I am going to need to hear further from

23

the parties on.

24

I guess the first one I should
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give Facebook a chance to address.

Facebook is

2

now arguing, as I understand it, that the

3

provisional patent application is not

4

admissible.

5

hear from Facebook on that.

If I have that correct, I'd like to

6

I'm specifically referring to on

7

the bottom of page three of the amended joint

8

pretrial order, number seven.

9

challenges the admissibility of the provisional

10

"Facebook

application."

11

MS. KEEFE:

Your Honor, when we

12

wrote this sentence, we were also at the same

13

time dealing with the preliminary jury

14

instructions, jury instructions, and all the

15

like, and I think at the time we were simply

16

worried about what the definition might be and

17

how it might come into evidence.

18
19

We can withdraw that objection
right now.

20
21
22

THE COURT:

Okay.

Fine.

Thank

you.
Next, on trial witnesses.

There's

23

been a lot of correspondence on this.

It

24

appears now that you're all in agreement at
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least as to who's going to be called as a live

2

witness; is that correct, Mr. Andre?

3

MR. ANDRE:

It is, Your Honor.

4

THE COURT:

And Ms. Keefe?

5

MS. KEEFE:

It is, Your Honor.

6

THE COURT:

Okay.

And you will,

7

mind you, be held to that agreement, so the live

8

witnesses are at most the live witnesses that

9

are disclosed in the amended joint pretrial

10

order.

11

In terms of disclosing the order

12

in which you are going to call the witnesses,

13

tell me where you are on that.

14

current agreement as to, first, when Leader is

15

going to disclose to Facebook the order of the

16

witnesses that you're calling?

17
18
19

MR. ANDRE:

What is your

I've just been

informed it wasn't discussed, Your Honor.
I think we can make -- what we

20

normally do is, the night before by six o'clock

21

or 6:30, we can disclose the witness and do it

22

that way and then it gives them proper time to

23

prepare for their cross-examination.

24

THE COURT:

Looks like Mr. Rhoades

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has a position.

2

MR. RHOADES:

I'm not a big fan of

3

waiting to the list minute.

4

prepared to tell you the order.

5

trial.

6

of things to do, and I don't want to see their

7

team working all night.

It's a short

It's a week trial, and people have a lot

8
9

We're perfectly

If they want to, we'll tell them
the order.

If they want to reciprocate, fine.

10

If not, we'll do it the old-fashion way the

11

night before.

12

THE COURT:

I'm going to make both

13

sides disclose the order of your witnesses by

14

6:00 p.m. tomorrow, so you figure out how to do

15

that with respect to one another.

16

For rebuttal witnesses, I may have

17

been reading too much between the lines as to

18

what Facebook's position is as to whether you're

19

trying to reserve the right to call someone live

20

in rebuttal who is not disclosed on your witness

21

list.

22

MR. RHOADES:

23

THE COURT:

24

No, Your Honor.
Well, you're not going

to be permitted to do that.
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2

MR. RHOADES:

We anticipated that,

Your Honor.

3

THE COURT:

With respect to the

4

deposition designations, also perhaps I'm

5

overreading what the parties have put here.

6

Pursuant to my order, the maximum

7

possible deposition designations and

8

counter-designations are those that you have

9

highlighted for us in the submission you gave us

10

earlier in the week.

11

You're tree to subtract from that,

12

but you're not going to be adding to that.

13

Okay.

Everybody understands that.

14

In terms of -- since we need to

15

get you rulings on objections, we had talked

16

about you would let the Court know

17

forty-eight hours in advance of when you intend

18

to offer the deposition testimony so we can get

19

you rulings on exhibits.

20

Of course today is Friday.

We may

21

get to some witnesses on Monday, so I do want to

22

know by Saturday what witnesses you may offer in

23

deposition on Monday, and by Sunday what

24

witnesses you may offer in deposition by
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Tuesday.

2

I'm going to leave it to counsel,

3

I think, to confer with my courtroom deputy

4

after the hearing, perhaps e-mail to chambers

5

may be the best way to get in touch with us on

6

that sort of last-minute thing.

7

Let me turn to what are identified

8

as outstanding matters in the amended pretrial

9

order.

10

Starting first with Leader, and I'm on

page seven of the amended pretrial order.

11
12

The first issue was the 282
disclosure.

13

I already dealt with that.
The next issue is whether Facebook

14

can discuss changes to Facebook's website and

15

its architecture.

16

I agree with Leader that Facebook is not to do

17

that.

18

That is, recent changes, and

The next issue is whether Facebook

19

can introduce exhibits relating to the

20

reexamination that may still appear on

21

Facebook's exhibit list.

22

that Facebook cannot do that.

23
24

I agree with Leader

The next is whether Facebook can
discuss or use exhibits of Leader to Leader
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after December 10, 2002.

2

withdrawn any suggestion that it was going to do

3

that, so I agree with Leader on that.

4

I believe Facebook has

Next, whether Facebook's fact

5

witnesses can offer expert testimony or discuss

6

patents issued to Facebook.

7

that in passing, a fact witness can mention that

8

Facebook has patents.

9

I already discussed

Next, whether Facebook can offer

10

testimony or exhibits regarding Leader's attempt

11

to obtain financing.

12

that as well.

13
14

Facebook's outstanding matters in
summary judgment motions, I addressed.

15
16

Exhibits relating to copying and
hacking.

I addressed that.

17
18

I've already addressed

References to movies, books, et
cetera.

We addressed that.

19

And finally, undisclosed expert

20

testimony.

I'm sure you all recall what our

21

order has been with respect to that:

22

believes that expert testimony is being elicited

23

that goes beyond the scope of what was disclosed

24

in the expert reports, you can note that

If anybody

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objection during the trial.

We'll brief that

2

objection following trial.

If you prevail on

3

that objection and a new trial is necessary,

4

then the party offering the improper testimony

5

will be paying costs for that second trial.

6

Let me pause now before I take up

7

a number of what I consider littler matters and

8

see if there are issues the parties want to

9

address at this time.

10

Ms. Kobialka?

11

MS. KOBIALKA:

Thank, Your Honor.

12

I just want to get some clarification with

13

respect to our objection that we had made about

14

the prior art references and the 102(b) issues

15

raised with respect to the demonstrations and

16

offers for sale.

17

I understand that they were

18

overruled; however, there's got to be some limit

19

in the scope with respect to what we're talking

20

about because they can't just introduce any

21

prior art that has hasn't been previously

22

disclosed.

23
24

What we had specifically asked for
was, at least with respect to the anticipation
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and obviousness references, that has to be

2

limited to what their expert was going to

3

testify on, so what's been disclosed within the

4

four corners of the expert report with respect

5

to those issues.

6

And then on the offers for sale

7

and the demonstrations, those should be limited

8

to the interrogatory responses they provided to

9

us on April 19, where they had specifically

10

identified some parties.

11

With respect to the offers for

12

sale, they had three specific entities they had

13

identified as allegedly receiving offers for

14

sale of the patented technology, and with

15

respect to demonstrations, I believe they listed

16

forty-nine different parties.

17

This morning, we received a

18

supplemental interrogatory response we just got

19

at 10:00 a.m., which I haven't reviewed it

20

carefully, but it appears to be listing other

21

parties that supposedly got offers for sale and

22

demonstrations that were not disclosed

23

previously.

24

This goes to the heart of trying
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to understand what they are permitted to put in.

2

There is a number of potentially alleged prior

3

art references they have listed on their exhibit

4

list.

5

put before the jury, especially if their expert

6

has testified with respect to anticipation or

7

obviousness, and then we also have this issue

8

with respect to the offers for sale and

9

demonstrations.

10
11
12

We don't think it's appropriate to not be

THE COURT:

Let's hear from

Facebook on these issues.
MS. KEEFE:

With respect to

13

anticipation and obviousness, Your Honor, I

14

think it's clear we know that it's what our

15

expert talked about, and those references have

16

been disclosed, and that's fine.

17

With respect to the offers for

18

sale and demonstrations, the reason that we had

19

to give a supplemental interrogatory response

20

this morning was because Mr. Zacks's deposition

21

-- if you recall this was one of the late

22

depositions based on the NDAs, based on further

23

discovery you allowed us to do -- during his

24

deposition, he talked about other offers for
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sale, and we just received his declaration

2

yesterday regarding authentication of certain

3

documents.

4

So based on that, we provided a

5

supplemental interrogatory response today that

6

goes to those offers for sale and those

7

demonstrations.

8
9

So that's what this is about.
There's not going to be any surprise.

There's

10

no offer for sale or demonstration that they

11

don't know about.

12

were in their control the entire time.

13

These are all things that

THE COURT:

How many offers for

14

sale does that leave us with now?

15

there were three.

16

are part of your case?

17

I understand

Now there are how many that

MS. KEEFE:

If you give me one

18

second, I'll get the list for you, so we're down

19

to --

20
21
22

For demonstrations actually.
Sorry.

You asked offers for sale.
For offers for sale, one, two,

23

three, four, five, six, seven, eight.

24

THE COURT:

And is it correct that

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it was three prior to today's supplemental

2

interrogatory response?

3

MS. KEEFE:

I'm trying to figure

4

out how to answer that question.

There were

5

three that were in our motion to leave to amend

6

regarding inequitable conduct.

7

listed as possible offers for sale to everyone

8

who had signed an NDA.

9

case in the interrogatory that way, so I'm not

They were always

They were always in the

10

sure how to answer that question because they

11

have always been in the case.

12

THE COURT:

13

next question was going to be on the

14

demonstrations, and that will require more

15

counting because it was represented that it was

16

forty-nine.

17

MS. KEEFE:

And you anticipated my

The demonstrations are

18

difficult.

19

demonstrations with named people, I can take it

20

down lower than forty-nine in terms of named

21

persons.

22

In terms of very specific

One of the problems with the

23

demonstrations is that each of the NDAs that

24

were signed -- you won't be hearing a thousand
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names.

2

By the same token, we want to be

3

able to ask questions about -- not submit

4

documents regarding, but ask questions about the

5

fact that Mr. McKibben participated in

6

potentially hundreds, definitely potentially

7

thousands, of demonstrations with each of the

8

persons who signed NDAs, and that's testimony we

9

want to be able to explore with Mr. McKibben.

10
11

So in terms of named
demonstrations, I have eighteen.

12

THE COURT:

And what's your

13

response to the contention that this is an

14

unfair last-minute surprise?

15

MS. KEEFE:

It's absolutely not,

16

Your Honor.

This is something that the parties

17

have been actively conducting discovery into.

18

We've been actively discussing, describing --

19

and all of this evidence is within their

20

control.

21

We're not using documents from the third parties

22

who received the demonstrations.

23

documents from Leader and testimony from

24

Mr. McKibben.

We're only using their documents.

These are

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THE COURT:

2

MS. KOBIALKA:

3

Okay.

Thank you.

Thank you, Your

Honor.

4

Let me address a couple things.

5

When we start talking about the demonstrations,

6

if you recall we previously briefed out the

7

issue that we had produced all of the Power

8

Point presentations -- I think there were

9

something like over 500 of them -- long ago, and

10

they didn't raise this issue until late in the

11

case.

12

If I take a quick look at their

13

supplemental interrogatory number four, they

14

have listed out a number of parties -- like I

15

said, I haven't had a chance to review it -- but

16

a lot of them -- a lot of them are ZLG

17

designation, and that is a third party, and this

18

is Mr. Zacks who had his deposition on June 10th

19

and another one shortly after that to finish up,

20

authenticate documents, shortly after the

21

July 4th weekend.

22

So most of the information that

23

what I believe that -- the parties they've

24

identified which are new and alleged offers for
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sale were based on an alleged deposition that

2

was done June 10th.

3

supplement the interrogatory response to

4

identify those specific parties.

They had plenty of time to

5

We had a pretrial conference, and

6

we mentioned at that time there was a problem.

7

They hadn't provided their 282 disclosure, and

8

they still haven't provided that information, so

9

today we're now getting for the first time these

10

new alleged offers for sale that they never gave

11

notice for.

12

And there's a reason you have the

13

statutory requirement, and it's specific to

14

invalidity, that you have to provide a

15

disclosure to the opposing party to be sure

16

there isn't an unfair surprise.

17

There isn't a statutory

18

requirement for infringement or damages or

19

anything else.

20

requirement, and that's the reason why it is the

21

practice of trial lawyers on these patent cases

22

to not only serve parties with this particular

23

disclosure but file it with the Court, and

24

that's a common practice everyone does to make

You can't ignore this particular

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sure there are no mistakes about what the issues

2

are going to be.

3

With respect to the offers for

4

sale and the demonstrations, this is an

5

important issue.

6

The other problem I'm having is,

7

they don't have a witness to offer the documents

8

in evidence.

9

conference, you said you have to have a witness

10

I believe at the previous pretrial

to offer some of this into evidence.

11

If I look at some of these

12

third-party documents they're attempting to use

13

to support their allegation, I don't know how

14

they're going to get it in.

15

declaration from Mr. Zacks saying it was

16

authentic.

17

All they got was a

They can't get it in because it

18

would be hearsay.

19

documents, among other reasons.

20

they suddenly got an authentication from

21

Mr. Zacks supposedly authenticating these

22

documents is problematic for a wide range of

23

reasons at this point.

24

He can't testify about those

THE COURT:

So the notion

Well, I recognize

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you've just seen their supplemental response,

2

but it was represented to me that all of the

3

documents came from you all, or at least that

4

they were within your possession and control.

5

don't know whether you produced the copies of

6

them or not, but that's incorrect?

7

MS. KOBIALKA:

I

That is incorrect

8

because the documents that Mr. Zacks had,

9

Mr. Zacks was a former lawyer for Leader and is

10

currently in litigation with Leader.

11

somebody that Leader had custody and control

12

over.

13

He's not

A lot of the documents I'm looking

14

at in the interrogatory response -- I'm happy to

15

show them to you -- have a ZLG designation,

16

which represent documents they got from him,

17

which were produced in early June.

18

Once again this was something they

19

could have disclosed long ago.

That's what

20

we're going to take issue with.

21

believe, it's five new parties they're claiming

22

offers for sale.

23

I'm not sure where she's getting the number

24

from.

They have, I

It may be eight new parties.

I can't tell from this disclosure that

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they provided.

2

This goes to the heart of it.

We

3

start trial on Monday, and we should have been

4

entitled to the information previously.

5

THE COURT:

Let me hear response,

6

particularly on whether these are third-party

7

documents or not and whether they're going to be

8

admissible at trial.

9

MR. RHOADES:

Your Honor, two

10

things.

11

Mr. McKibben.

12

opportunity to inquire him of the practice of

13

these NDAs, what they were representative of.

14

will not go through forty-nine examples.

15

One is, I will be cross-examining
I would like to have the

I

You've given us a fifteen-hour

16

clock.

17

These documents were within their custody and

18

control because he was acting as their counsel

19

during the time period.

20

I understand Mr. Zacks was their lawyer.

I think what we've got here is a

21

little bit of much ado about nothing.

This is

22

not going to be a big part of the case in terms

23

of time, but we are going to be soliciting

24

evidence to show that for '99, 2000, 2001, 2002,
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he was in the market demonstrating his product

2

and offering it for sale.

3

I intend to do it more anecdotally

4

rather than Party X, who did you speak to.

5

not going to be that kind of examination.

6

Thank you, Your Honor.

7

THE COURT:

It's

Here's where we are on

8

this.

9

the parties on this issue, and I'll tell you how

10

I'm going to need to hear further from

we're going to do that in just a minute.

11

First, with respect to the notice

12

of the prior art that's the basis for

13

anticipation and obviousness, I heard from

14

Facebook that they understand they're limited

15

there to what has been disclosed in their expert

16

report, and certainly I'm going to hold them to

17

that.

18

On offers for sale and the

19

demonstrations, at this point I'm limiting that

20

evidence to the information that was disclosed

21

prior to the most recent supplement, the one

22

that's represented to me was received last night

23

or today.

24

If Facebook wishes to use evidence
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beyond that, then you're going to need to file a

2

three-page letter.

3

admit.

4

morning.

5

respond with a three-page letter by ten o'clock

6

Sunday morning.

7

We'll call it a motion to

Get it to me by ten o'clock tomorrow
If you do that, Leader has a chance to

And we'll confer with the

8

courtroom deputy on how to get those to us by

9

e-mail if you do file them under seal.

If you

10

file them publicly, we'll see them through ECF.

11

Leader, other issues you'd like to

12

raise at this time?

13
14

MR. ANDRE:

One is a housekeeping

matter regarding sequestering of witnesses.

15

Obviously Mr. McKibben is going to

16

be sequestered.

17

during open statements so I can introduce him,

18

but I didn't know if we were going to have

19

sequestration during opening statements or not.

20

I'd like to have him here

THE COURT:

I recall we had a

21

dispute on whether he was going to be at the

22

table.

23

table for length of the trial.

24

I take it he's not going to be at the

MR. ANDRE:

He won't be at the

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table the length of the trial.

2

finish opening statements, as soon as we finish

3

that, we ask him to leave the room and come back

4

at the time of his testimony.

5

THE COURT:

6

MR. RHOADES:

As soon as we

Objection?
Yes, Your Honor.

7

would object.

8

sequestered, that the witness should be

9

I

sequestered during my opening statement.

10
11

If the witness is to be

THE COURT:

He can be present for

his own attorney opening statement?

12

MR. RHOADES:

I assume he's heard

13

things.

14

materials that would be covered by some kind of

15

confidentiality that would be inappropriate for

16

him to hear, I will not object to him sitting

17

through his own opening statement.

18

Unless counsel is going to refer to

But I think if he's sequestered,

19

he should be sequestered for our opening

20

statement thereafter.

21

given how short the trial is, I assume he's

22

going to be on direct, and we're going to cross

23

him, and I assume what I'm hearing is they're

24

going to stand on ceremony and insist that we

Frankly, Your Honor,

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follow or adhere to the rules of scope.

2

That doesn't make sense to me.

3

Personally I would proffer to the Court that it

4

makes more sense to get the witness on and off.

5

I'll leave that to Your Honor's discretion.

6

THE COURT:

7

this leave us?

8

Mr. Andre, where does

Mr. Rhoades's opening?

9
10

Did you want him here to hear

MR. ANDRE:

I just want to

introduce him to the jury at the time.

11

THE COURT:

Then I take it that

12

you are reserving the right to call Mr. McKibben

13

more than once and/or require Facebook to call

14

him separately; correct?

15

not at the table?

16
17

MR. ANDRE:

That's the reason he's

As we discussed in a

previous pretrial conference, that's correct.

18

THE COURT:

That's fine.

19

MR. ANDRE:

With respect to

20

opening statements, since we're on the topic,

21

the parties exchanged proposed demonstratives

22

for opening statements last night, and we have

23

serious issues regarding counsel's opening

24

statement.
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There are sixty-eight static

2

slides, over a hundred Power Point slides built

3

up on it.

4

opening statement is a limited statement to talk

5

about what the parties tend to prove.

6

facts they're going to show in trial.

As the Court is aware, the purpose of

7

It's the

Counsel's opening statement is

8

replete with instructions on the law.

They talk

9

about what the law is and how -- basically

10

taking Your Honor's role here.

11

burdens of proof and what does that mean, what

12

is infringement.

13

construction.

14

What is the

They talk about claim

As Your Honor is aware, there's

15

multiple Supreme Court cases, Third Circuit

16

cases, that talk about the idea of an opening

17

statement is limited to a general statement of

18

facts which are intended to be proved, not a

19

place to discuss the pertinent law, and that's

20

U.S. versus De Rosa, 548 F.2d 464.

21

There's also a case in the Seventh

22

Circuit Schwartz versus Systems Software, 32

23

F.3d 284, Seventh Circuit.

24

Obviously there's also a great
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deal of argumentation in counsel's opening

2

statement as well.

3

statement to be frank.

4

argument going on.

5

conclusion of the law and put in certain

6

demonstratives that are prejudicial at this

7

stage in the case.

8
9

It looks more like a closing
There's a lot of

They talk about the ultimate

There is a Supreme Court case
talking about no argumentation:

U.S. versus

10

Dinitz, 424 U.S. 600; and Arizona versus

11

Washington, 434 U.S. 497, 1978.

12

Once again, these are limited

13

purposes.

14

count sixty-eight static slides over 100 slides,

15

if you count the number they build on.

16

sixty percent are objectionable on these

17

grounds.

18

They talk about burdens of proof.

19

I don't know how to cure this.

I

Over

They talk about claim construction.

THE COURT:

Did they get the law

20

wrong in your view, or you don't want them

21

addressing the legal standards in front of the

22

jury at the opening?

23
24

MR.

ANDRE:

they're going to say.

I don't know what

They got the law regard

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claim interpretation.

I think they are

2

misinterpreting -- they use the Court's order in

3

the opening slides, and they quote from that,

4

but then they apply that to the claims, and that

5

is misapplied to the claims in my opinion.

6

And they talk about they have a

7

figure of the preliminary jury instructions.

8

They're pointing things out from the preliminary

9

jury instructions.

10

They talk about the burdens of

11

proof that the parties will be talking about.

12

Obviously that's an issue Your Honor will read

13

to the jury, and it's an issue we have been

14

discussing and debating.

15

With respect to argumentative

16

issues, they put in certain issues regarding --

17

for example, to prove infringement, you have to

18

knock down these ten bowling pins, as if there

19

are ten claim elements in the claims, which

20

there are not.

21
22
23
24

And there's issues in the bowling
pins that are not in the claims.
THE COURT:

Let me hear briefly

from Facebook on this, please.
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MR. RHOADES:

Your Honor, no one

2

disputes that an opening statement should not be

3

argumentative.

4

argumentative, you will be on my back, and there

5

will be objections.

6

No one disputes that if it is

I do want to, with the Court's

7

permission, quote from the instructions you're

8

going to give verbatim because I think as you

9

instruct in your preliminary jury instructions

10

on page ten, quote, "Opening statements are

11

intended to explain to you what each side

12

intends to prove and are offered to help you

13

follow the evidence."

14

And that's what I want to do.

I

15

want to show them what we intend to prove, what

16

we think the evidence will show them, and in

17

some instances, I want to show them what the

18

provisional application says and what the final

19

one says.

20

I'm not allowed to argue what it

21

means.

22

review the evidence.

23
24

I'm not allowed to argue how they should

But I'm entitled to lay out my
evidence and to suggest methodologies buy which
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they should assess the evidence as it comes to

2

them through the course of the trial.

3

all we propose.

4

That's

With respect to metaphors and

5

analogies for how to think about the evidence,

6

I've used everything from Zen rock gardens to

7

archaeology sites.

8

objecting to.

9

Maybe it's just me he's

With respect to the law, the law

10

I'm going to quote is from your instructions

11

verbatim, and with respect to the Markman order,

12

that is how the Court has construed the claims,

13

and I think we're entitled to show that to the

14

jury.

15

THE COURT:

16

Mr. Andre, do you have anything

17
18

Thank you.

you want to add?
MR. ANDRE:

Your Honor, he's not

19

trying to give the ultimate legal conclusion,

20

and just look at the slides.

21

slides are pretty self-apparent, where they talk

22

about the proposal to sell the Wright-Patterson

23

Air Force Base, they talk about the language is

24

identical between the prior art and the 761

The titles of the

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patent, so this is the ultimate legal

2

conclusion.

3

The fact of the matter is opening

4

statements are not meant to be tutorials and

5

presentations of this nature.

6

extremely prejudicial.

7

I think this is

We have one demonstrative that we

8

proposed in our opening statements, a timeline.

9

They objected to a few issues on the timeline as

10

well.

11

to resolution on this type of prejudicial

12

activity, we eliminate all demonstrations,

13

whether they be exhibits or demonstratives.

14

At this point if the parties can't come

This is prejudicial, and counsel

15

give opening statements and no showing exhibits

16

or demonstratives.

17

THE COURT:

Mr. Rhoades, I need to

18

know, are there objections to the proposed

19

demonstratives from Leader that they intend to

20

use in their opening statement?

21

MR. RHOADES:

A very minor one.

22

In the proposed timeline, they list as

23

December 2002 -- they say patent application.

24

The patent application was filed
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in December of '03.

I don't know if the '03 is

2

a typo or whether they need to add the word

3

"provisional."

4

THE COURT:

5

MR. RHOADES:

6

That's your objection?
That's the

objection.

7

THE COURT:

Mr. Andre, I assume

8

you're going to clarify that with respect to

9

your exhibit; correct?

10

MR. ANDRE:

I'm willing to do so,

11

Your Honor.

12

is, but if it gets us over the objection, that's

13

fine.

14
15

I think it's accurate this way it

THE COURT:

Let's either add the

word "provisional" or make the date correct.

16

MR. ANDRE:

I think the

17

provisional patent application is a patent

18

application in 2002.

19

all.

20

That doesn't hurt me at

THE COURT:

With respect to your

21

objections to Facebook's proposal, I'm going to

22

have to take a look at what Facebook has

23

proposed to.

24

It appears that Mr. Andre has a
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copy of it.

Pass it up to me, and we will get

2

back to you sometime prior to the opening

3

statement on Monday.

4

MR. ANDRE:

And just for

5

clarification, Your Honor, this is a PDF

6

conversion of what they did.

7

overlays.

We couldn't print out as they --

8
9
10

They have

THE COURT:

Let me ask the

Facebook folks, do you have any doubt this is
what I should be looking at?

11

MR. RHOADES:

No, Your Honor.

I'm

12

happy to provide the actual in realtime what it

13

looks like, we could e-mail that or send a thumb

14

drive over.

15

THE COURT:

16

right there.

17

Looks like you have it

version.

18

We'll take the hard copy and PDF

MR. ANDRE:

Just so the record is

19

clear, that is the order it was produced to us.

20

I think they scrambled it intentionally.

21

-- it's completely out of order, and we know it

22

is.

23

think could be accurate.

24

produced to us.

They

We couldn't put it in any order that we
That's how it was

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2

THE COURT:

We'll take a look at

both versions and get back to you.

3

MR. RHOADES:

To make your life

4

easier, if it helps everybody, I'll take all the

5

titles off.

6

And with regard to the bowling

7

pins, I'll take all the words off the bowling

8

pins.

9

pins as a metaphor.

I just want to use the idea of bowling
If the Court finds that

10

argumentative, I'll come up with another one.

11

It's the idea that you have to find every part

12

of claim language is what I'm trying to drive

13

at.

14
15

THE COURT:

MR. ANDRE:
examples I gave.

18
19

Your Honor, those are

Leader?

16
17

Other issues from

THE COURT:

I understand.

You

object to the -- essentially the entirety of it.

20

MR. ANDRE:

Like I said,

21

sixty percent of it, and I could identify the

22

slides if Your Honor is inclined.

23
24

I think that is all we have at
this point.

I think we've handled the

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demonstratives and the deposition play.

2

found playing our first deposition on Tuesday,

3

and we'll work with your clerk as a way to get

4

the designations to you.

5
6

THE COURT:

We

I think you said

earlier there are some exhibits you don't have.

7

MR. ANDRE:

This goes to the idea

8

of the expert report, the expert, Dr. Greenberg

9

relied on the I-Manage user manual, and he used

10

that as prior art that he used for anticipation

11

and obviousness, and he gave a claim chart on

12

that.

13

He makes a passing reference to

14

the user manual describes how the software

15

works.

16

this case.

17

had he ever seen the software, did he rely on

18

it.

The software was never produced to us in

19

We asked Dr. Greenberg at deposition

He said he had never seen it,

20

never operated it.

21

his opinion.

22

He had not relied on it for

When we got their exhibit list,

23

there was an exhibit for the I-Manage software.

24

We don't know if it's the same version.

I have

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2

no idea what this is.
We asked them to take it off the

3

exhibit list saying they could not use the

4

software in court to demonstrate it.

5

use the manual only because that's what

6

Dr. Greenberg relied upon, and we still have not

7

received a copy of that software.

They could

8

They have refused do so and stated

9

that they believe the software is fair game and

10

plan on using it.

11

with Dr. Greenberg, which would be something

12

outside his expert report and outside his

13

deposition testimony.

14

I assume they want to use it

We would like to preclude them

15

from bringing the software in.

16

not have a chance to review it or rebut it and

17

use it as well.

18

be prejudicial to come up.

19

have with the software.

20

Our expert did

At this late stage, that would

MR. RHOADES:

That's the issue we

We're not going to

21

use the software.

22

the report, but we're not going to use the

23

software he's concerned about.

24

I think it was a reference in

THE COURT:

Okay.

Fine.

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Something else, Mr. Andre.
might want to ask for more.

3
4
5

You

MR. ANDRE:

I'm going to call him

instead.
There's an issue, and we -- the

6

internet connectivity.

7

able to get that.

8
9
10

THE COURT:

I don't know if we were

Tell me what it is

that you want and why.
MR. ANDRE:

We're trying to get

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the internet in this courtroom.

We have some

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Sprint cards and Verizon cards.

We could try to

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do it wirelessly.

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I think the parties will want to

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show the Facebook website in action, and you

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have to go on the internet to do so.

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our expert report.

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whatnot, how that's demonstrated with the site

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itself with the internet connection.

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know if there's a policy with that.

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That's in

We have screenshots and

THE COURT:

I don't

There's a way to show

it without a live connection?
MR. ANDRE:

If need be.

We would

not be able to show certain aspects of the
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functionality of the site.

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that would not be the way we prefer.

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We could do it, but

Maybe our cards will work, the air

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cards, whatever.

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had any policy about us tapping into the

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internet.

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THE COURT:

Pretty much we have a

policy that you don't do it.

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But I don't know if the Court

MR. ANDRE:

We couldn't find a

THE COURT:

I'm not telling you

policy.

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it's written down, but what is Facebook's

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position on this?

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MR. RHOADES:

Your Honor, last

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time I was in Delaware for trial, it was

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December, and now it's July.

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best of your weather.

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December.

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I'm getting the

We had this issue in

My view is that if you have a live

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internet connection in the courtroom, and you

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walk a witness through it, it's difficult to

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capture that from an evidentiary standpoint.

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would object to it I think they could offer

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boards or testimonial support to get to the same
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place.

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THE COURT:

Okay.

We're not going

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to have a live connection, so do your best

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without it.

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MR. ANDRE:

Your Honor, it's okay

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if we can manage it ourself for demonstration

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purposes?

If we could pull a net card --

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THE COURT:

We're not going to

have a live internet connection.

You'll present

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your case based on some sort of fixed data that

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has been produced and is part of this case.

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What the Facebook website looks

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like on July 19, 2010, is not what -- we're not

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going to be able to display that in live terms

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to the jury.

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MR. ANDRE:

The reason we're

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asking for it, Your Honor, is not to display the

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website.

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files.

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It's to show the function calls in the

Our expert in his expert report

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talked about when you ask the website to do

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something, it will call the file, and you can

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show that file being called, and that's in his

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expert report, is a file showing infringement.
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THE COURT:

doing that without getting on the internet.

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You must have a way of

MR. ANDRE:

I'll ask my tech

worker here.

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Mr. Hannah informs me there's no

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way of doing it because of the way the files are

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pulled.

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reproduction you can do to show that.

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There's no physical copy or

We intend on showing the source

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code obviously, and the source code is not the

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compiled code which would be implemented to show

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the site working.

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code.

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our request to get that.

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We don't have the compiled

We asked for it, but the Court overruled

We have the source code and the

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technical documents.

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show was the machine-readable code in action.

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We have a claim to machine-readable code as

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well.

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machine-readable code in action.

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What we were trying to

We want to show that is the

To the extent we get the internet

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up and running, we were going to do it with

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controlled pages of our expert's pages.

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weren't going to go on the internet and shop

We

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around.

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THE COURT:

I don't know what that

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means, to control it to his pages, because you

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did his expert report on a particular day, and

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now we're at a different day, and my

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understanding is Facebook's website changes all

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the sometime.

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MR. ANDRE:

THE COURT:

You can confer, or

Honor.

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I see your point, Your

Mr. Hannah can come forward.

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MR. HANNAH:

Your Honor, the

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source code module, those won't change.

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will happen, it will be a demonstration showing

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the Facebook website and the actual function

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calls that come in.

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What

Those have not changed.

When he shows those function

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calls, those would be from the source code

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computer the defendants have produced.

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be the exact, same information, but it will show

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there's a live way that you're able to get this

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onto the computer, and that's required by the

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claims.

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It will

The claims go to a web-based
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computing platform, so it's necessary for him to

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show this is on the web and able to be accessed.

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Once you see that source code module come down,

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the one that the jury will see is going to be

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the one from April 1, 2010, which is the latest

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snapshot of the source code.

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THE COURT:

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dispute that Facebook is a web-based

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functionality; correct?

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I don't think it's in

MR. RHOADES:

So stipulated, Your

Honor.

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THE COURT:

If we stipulate to

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that fact, which probably the jury is going to

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know anyway, why can't you work from a

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standalone computer?

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MR. HANNAH:

There are disputes

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depending on how certain source code modules

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interact with each other.

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Their non-infringement expert

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says.

The photoselect.PHP, photo.PHP, these

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modules do not interact and become a context

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component.

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the context component.

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the option of uploading a profile picture, and

Our expert is going to say this is
As you can see, you have

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he'll click on that.

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From that, he'll be able to show

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the source code modules that are invoked, and

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then he'll show the source code that is

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demonstrated on the source code computer as of

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April 1, 2010.

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It is a demonstrative that will

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used for the jury.

We can't move the website

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itself into evidence, but then they'll have the

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technical documents and source code to explain

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what's happening on the back end.

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THE COURT:

To the extent that's

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your request, I'm overruling it.

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going to be internet functionality within the

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courtroom.

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There's not

The evidence is whatever you have

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on the standalone computer and other

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demonstratives you've put together, and we'll

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read a stipulation to the jury or add it to the

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jury instructions, if need be, that Facebook is

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on the internet and is an internet-based

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functionality.

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If you need more than that, then
you're going to have a raise that issue with
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counsel for Facebook and then present it to me

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as we go forward, but we're not going to have a

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live internet connection, wired, wireless, or

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any other way in the courtroom.

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MR. ANDRE:

With that respect,

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Your Honor, we can raise this when the time

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comes.

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We described we were going to do
that in his expert report.

To the extent we

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have to do an alternative way to try to show the

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same thing, that may not have been disclosed.

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This is to accommodate the fact we can't show --

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THE COURT:

If that's in your

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expert report, obviously I don't know as I sit

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here, then I may have to cut you some slack, but

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you're going to have to work very closely with

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Facebook over the coming days to figure out what

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the way is to deal with this.

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I'm surprised, frankly, that this

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issue is coming up an hour-and-a-half into our

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second pretrial conference if it really is

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crucial to your case to have live internet

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functionality during a trial when I believe it's

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policy in this court that we don't have that.
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Any issues Facebook wants to raise
at this time?

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MR. RHOADES:

Your Honor, with the

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Court's indulgence, do you have any particular

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logistical or housekeeping issues you would like

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to talk with us about?

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Do you want us to approach with

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exhibits?

How do you want us to address the

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witness with regard to exhibits?

Is there

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anything in particular that we should know

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mechanically about your courtroom before we

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start on Monday?

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And I would appreciate any
observations you care to give.

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THE COURT:

The only thing I can

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say on that right now -- and I do have some

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notes here that I'm going to get into which may

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tell you some other things -- I do want counsel

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to request leave to approach the witness, but

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just once is fine.

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first time, I'll grant it.

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ask every other time that you approach the

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witness.

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If you request leave the
You don't have to

Let me tell you some other things
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that are not necessarily directly responsive to

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that question.

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With respect to jury selection, we

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issued the voir dire.

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I'm going to turn to counsel right from, I think

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it's question number one, and direct you to

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introduce yourselves, your colleagues, your law

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firms, and all of your potential witnesses.

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As you will have seen,

I then will read all of the

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remaining questions, and I will indicate to the

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potential jurors that they should raise their

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hand if they have a yes answer to any of the

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questions, but that's just to get a feel for how

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many yeses.

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Thereafter, we'll retire to the

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jury room back here.

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three people with me and the court reporter and

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my staff, and we'll bring the jurors -- any of

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them who have raised their hand affirmatively in

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response to any of the questions, we'll bring

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them in one-by-one, and there will be colloquy

22

if necessary and any motions to strike for cause

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once we know exactly what their concerns are.

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Each side can send up to

After that we'll return to the
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courtroom, and we'll pull eighteen jurors'

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numbers of the group that have not been stricken

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for cause.

4

box, and then each side will get a chance to do

5

five peremptories, and then we'll end up with

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the jury of eight.

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We'll put those eighteen in the jury

On the preliminary jury

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instructions, as you note, they have been

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issued.

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We will be playing the FJC video.
We have it in VHS and DVD.

If we

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give you the copy on Monday, do I trust you have

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the technological capability to press play at

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the appropriate time?

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I'm seeing yeses.

And we received your proposed

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final jury instructions.

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submission of those in Word Perfect format.

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Send that by e-mail to the courtroom deputy, and

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try to get them to us by the end of the day

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today.

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I do want to get a

An issue was raised in the

21

letters, I believe, about the timing of the

22

second or subsequent trials if necessary.

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I can tell you for sure is I intend to try the

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whole remainder of the case prior to any appeal.

What

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In terms of the specific timing,

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that's a matter that we're going to have to

3

address after we see what happens at the first

4

trial, but I will very promptly solicit your

5

proposals as to how to proceed after we finish

6

with the first trial.

7

We talked about confidentiality

8

last time.

9

advise me ahead of time which are the witnesses

10

that you intend to use the source code with, and

11

who it is that's going to have to be cleared out

12

of the courtroom.

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information to us by the 10:00 Sunday time

14

frame, and we'll do that probably by e-mail as I

15

indicated before.

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I'm going to need the parties to

Once you provide that

On equipment, there was some back

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and forth with staff about equipment.

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that's all been resolved, Mr. Andre; correct?

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MR. ANDRE:

20

Honor.

21

I think

That is correct, Your

set up.

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They'll be here 1:30 this afternoon to

THE COURT:

On Monday, I plan to

23

meet with counsel at nine o'clock.

My hope is

24

there won't by any issues to talk about.

Just

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in case there's anything to talk about, we'll

2

meet briefly at nine o'clock.

3

We'll bring the jury in around

4

9:30.

I intend to make the lunch break

5

generally at 12:30 instead of 1:00, so that's a

6

change from what we talked about previously.

7

That's it on my list.

8

to Mr. Andre again.

9

Let me turn

time?

10

Anything further at this

MR. ANDRE:

No thank you, Your

12

THE COURT:

And defense?

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MR. RHOADES:

11

Honor.

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one.

15

I have a really dumb

Do you mind if we put the bottles of water

on the table?

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17

THE COURT:

going to say "brought to you by Facebook."

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19

I assume they're not

I don't mind.

Obviously do you

best not to spill.

20

Nothing else?

Okay.

All right.

21

We'll take a look at your proposed

22

opening.

We'll get back to you on that.

Confer

23

with my staff on how to get in touch with us

24

over the weekend for last minute things, and
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we'll see you Monday.
Thank you.
(Everyone said, thank you.)
THE CLERK:

All rise.

(Proceeding ended at 11:34 a.m.)

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C E R T I F I C A T I O N

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I, DEANNA WARNER, Professional

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Reporter, certify that the foregoing is a true and

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accurate transcript of the foregoing proceeding.

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I further certify that I am neither

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attorney nor counsel for, nor related to nor employed

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by any of the parties to the action in which this

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proceeding was taken; further, that I am not a

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relative or employee of any attorney or counsel

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employed in this case, nor am I financially

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interested in this action.

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________________________________

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DEANNA WARNER

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Professional Reporter and Notary Public

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