Leader Technologies Inc. v. Facebook Inc.

Filing 667

DECLARATION re 666 Reply Brief of Mark R. Weinstein by Facebook Inc.(a Delaware corporation). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F - Part 1, # 7 Exhibit Exhibit F - Part 2)(Caponi, Steven)

EXHIBIT B

1274
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES,
INC.,
Plaintiff,

) Trial Volume 5
)
)
)
) C.A. No. 08-862-JJF-LPS
)
)
)
)
)
)

v.
FACEBOOK, INC., a
Delaware corporation,
Defendant.

Friday, July 23, 2010
9:00 a.m.

BEFORE:

THE HONORABLE LEONARD P. STARK
United States District Court Magistrate

APPEARANCES:
POTTER, ANDERSON & CORROON, LLP
BY: PHILIP A. ROVNER, ESQ.
-andKING
BY:
BY:
BY:

& SPALDING
PAUL ANDRE, ESQ.
LISA KOBIALKA, ESQ.
JAMES HANNAH, ESQ.

Counsel for Plaintiff
Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801
[phone] FAX [phone]

Page 1613
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Let's hear from Mr. Andre, and
then I want to give Facebook some time.
MR. ANDRE:

Your Honor, on the

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contributory infringement, it's a pretty

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standard instruction.

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extraordinary about the points, puts out the

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elements as set forth, looks like Facebook wants

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to insert the statute into the instruction to

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some degree, and I don't think that's necessary

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I don't see anything

or appropriate at this point.
I don't see the big issue here

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because the Thrasher case has come out and

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determined that any type of contributory

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infringement to the patent requires a product in

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the stream of commerce, and then you have three

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elements set for most part.

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THE COURT:

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Facebook at this point.

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any of the issues that have been raised or

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others if you think there are others that are

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important, and basically we have up to

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twenty minutes because I do want to leave the

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last five minutes to hear from Leader.

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Let me turn it over to
Feel free to address

MR. WEINSTEIN:

There's only two

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801

Page 1614
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issues to address.

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jury instruction, 3.4.

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The most critical ones on

Your Honor, I'd like to hand up a

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portion of some of the transcript from the trial

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to illustrate why we need an instruction that

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"wherein" does not mean when.

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THE COURT:

You've already cited

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pretty extensively in your support, which we

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looked at, so in the spirit of compromise,

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construing at this late moment the term

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"wherein" to mean in which, which has been

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agreed to by Leader, is not satisfactory to you?

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MR. WEINSTEIN:

It isn't, Your

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Honor.

The problem with in which, Your Honor,

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they're going to make the exact, same argument

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what I heard today, is they think this is a

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factual issue to go to the jury.

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When I read the '02 Micro case

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last night, I was haunted how similar that case

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is to this.

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there.

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cross-examined witnesses on what do you think

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this term means.

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There was a claim term only if like

This case, they presented witnesses and

What ultimately came down and the

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Page 1615
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Court decided, he was going to send it to the

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jury.

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present a fundamental dispute regarding the

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scope of a claim term, it is the Court's duty to

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resolve it.

The federal circuit said when the parties

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The fundamental dispute is

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regarding does "wherein" mean when, or does the

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claim require a dynamic element, which means you

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look to the proceeding claim element?

That's a

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dispute Your Honor needs to resolve as a matter

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of law.

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THE COURT:

Help me, though, why I

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haven't resolve it by construing "wherein" to

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mean in which, and you all make your arguments

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or don't.

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construction as a matter of law.

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told they have to follow my claim construction.

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How is that any different than all the other

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claim construction issues?

You're stuck with the Court's claim

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MR. WEINSTEIN:

The jury is

Ultimately let's

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say the construction comes in in which you can

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say at which point.

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definitions.

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between two clauses.

There's lots of different

Ultimately wherein is a connecter

Hawkins Reporting Service
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Page 1616
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The question is, does it connote a

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temporal sequence like something happens when

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the user accesses the data from the second

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context?

That's the argument.

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They're taking the update of

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method to metadata can happen when the user

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accesses data.

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question.

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Farnan's order.

We think it's been resolved by Judge

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THE COURT:

MR. WEINSTEIN:

It's resolved in

his order.

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Where is it resolved

in his order?

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13

That's a claim construction

THE COURT:

Why do I even need to

define wherein if dynamically has done it?

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MR. WEINSTEIN:

The only reason we

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need to define it, Leader is making these

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arguments.

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evidence before witnesses and arguing the

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meaning of claim terms, which is the exclusive

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province of Your Honor.

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arguments in closing as to what ultimately the

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legal implication of wherein is.

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something that should not go to the jury.

They're putting prosecution history

There's going to be

That's

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Page 1617
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THE COURT:

And your paragraph on

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prosecution history that you propose, that does

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not take care of your problem if I were to keep

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that in as well as your wherein construction?

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MR. WEINSTEIN:

The wherein

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construction would not do it.

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history would help, but ultimately, Your Honor

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has to decide whether or not the claims are

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satisfied with dynamically updating the metadata

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The prosecution

when user accesses.

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If that issue is not resolved,

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ultimately instituting "wherein" as some

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connecter is not going to stop the arguments

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from being made that are legal in nature.

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THE COURT:

If I were to add line

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five, which claims which would I put the term

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"wherein" means in which.

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In which claims, what number claims, would I

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write in?

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Perhaps, not when.

MR. WEINSTEIN:

Your Honor, the

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claims that have the wherein clause are one,

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nine, and four also, and --

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MR. HANNAH:

All the dependent

claims have wherein as well.

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Page 1618
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MR. WEINSTEIN:

I don't think

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that's right, but I know seven has wherein in

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it.

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5

The claims where it really matters
is one, nine, and twenty-three.

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Twenty-one, very interestingly,

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Your Honor doesn't use the word "wherein."

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uses the term "such that," and that is something

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that we agreed to, is to construe "wherein" to

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mean "such that," which is consistent with

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what's in claim twenty-one.

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It

synonym that we think is clearer.

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THE COURT:

That's another

Okay.

Certainly this

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is an important issue.

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assume there's probably another you want to

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address.

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I agree with that, but I

MR. WEINSTEIN:

On Mr. Lamb's

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testimony, the only thing we wanted was to say

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two points.

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One is, a written correction to

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the deposition does not erase the witness's

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prior answer, and the jury is free to consider

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the changes in any way they see fit, the same

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way they would judge any issue of credibility.

Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801

Page 1634
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parties agree to was a commercial success

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stipulation, but they have not reached agreement

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on that as well.

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those to you as soon -- we'll keep working this

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weekend an hopefully get them to you --

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So those are the -- we can get

THE COURT:

Right.

So on all of

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those issues, the limiting instructions and

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which I think are limited to nine topics that

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you just mentioned.

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MR. ANDRE:

Yeah.

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THE COURT:

I do want to see what

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the parties propose, what their positions are,

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and let's say by noon tomorrow.

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follow this weekend the procedures we did last

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week where I send -- if it's not under seal, go

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ahead and do ECF.

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We're going to

We can pull it off of ECF.

But if any portion of it is under

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seal, email it to Mr. Golden and he'll get it to

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the rest of us.

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MR. ANDRE:

Mr. Rovner will take

care of the rest.
THE COURT:

Before you sit down,

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whoever wants to address it on the 3.4 on this,

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you know, is it enough for me to construe

Hawkins Reporting Service
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Page 1635
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wherein as in which and not go the extra mile

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and say not when?

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Mr. Weinstein, not that I don't

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enjoy all my time with you, but I don't want to

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sign up automatically for redoing this trial.

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MR. ANDRE:

Your Honor, the issue

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of claim construction should have been brought

8

up a long time ago, if they want to bring it up.

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The fact of the matter, experts

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have been interpreting this how they've been

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interpreting it.

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Greenberg, has interpreted is as a consequence.

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That's how he termed wherein.

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The expert on the stand, Dr.

Dr. Vigna determined it as in

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which.

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when is a negative limitation.

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I don't think, you know, if you say not

THE COURT:

Let's be clear.

If I

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don't say not when, you're going to argue when.

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They're going to argue not when.

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MR. ANDRE:

Well --

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THE COURT:

And you don't think

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that means we're all going to get reversed the

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minute we get to the Federal Circuit?

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MR. ANDRE:

Well, I'm not going to

Hawkins Reporting Service
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Page 1636
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argue when.

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I'm arguing which.
That's been our position

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throughout this entire case.

It is in which.

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That's the dictionary's definition of the word.

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So we think, as Mr. Hannah said,

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the dynamically is a functional language, not

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pure grammatical and temporal in that way.

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we're very confident that that's not going to be

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an issue.

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So

But if they start arguing, you

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know, not thereafter, or as a consequence or

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something along those lines like they had been,

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their other expert, Dr. Kearns, did the same

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thing.

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thereafter?

I asked him, I said, You mean

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He said, Yeah, afterwards.

So

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everybody has had a different definition.

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you want to give a proper definition, give the

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proper definition.

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If

If you want to interpret, say what

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it's not, we should also put some other things

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what it's not as well as what your experts have

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proposed.

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then it should not say it's not thereafter or

If you want to say it's not when,

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State of Delaware
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New Castle County )

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CERTIFICATE OF REPORTER

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I, Heather M. Triozzi, Registered

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Professional Reporter, Certified Shorthand Reporter,

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and Notary Public, do hereby certify that the

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foregoing record, Pages 1274 to 1642 inclusive, is a

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true and accurate transcript of my stenographic notes

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taken on July 23, 2010, in the above-captioned

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matter.

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IN WITNESS WHEREOF, I have hereunto set my

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hand and seal this 23rd day of July, 2010, at

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Wilmington.

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Heather M. Triozzi, RPR, CSR
Cert. No. 184-PS

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Hawkins Reporting Service
715 North King Street - Wilmington, Delaware 19801