PA Advisors, LLC v. Google Inc. et al

Filing 172

TRANSCRIPT of Proceedings held on 7-24-08, Status Hearing, 16 pages before Judge David Folsom. Court Reporter/Transcriber: Libby Crawford,Telephone number: 903.794.4067 Ext 237. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov 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 9/8/2008. Redacted Transcript Deadline set for 9/17/2008. Release of Transcript Restriction set for 11/17/2008. (aec, )

PA Advisors, LLC v. Google Inc. et al

Doc. 172

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR DEFENDANT YAHOO! INC: FOR DEFENDANT GOOGLE, INC.: APPEARANCES: FOR PLAINTIFF: PA ADVISORS, LLC VS. GOOGLE, INC.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION . . . DOCKET NO. 2:07CV480 TEXARKANA, TEXAS JULY 24, 2008, 10:02 A.M.

STATUS CONFERENCE BEFORE THE HONORABLE DAVID FOLSOM, UNITED STATES DISTRICT JUDGE.

MR. ANDREW W. SPANGLER SPANGLER LAW PC 208 N. GREEN ST. SUITE 300 LONGVIEW, TX. 75601 MR. MICHAEL T. COOKE FRIEDMAN SUDER & COOKE 604 EAST FOURTH STREET SUITE 200 FORT WORTH, TEXAS

MR. BRIAN C. CANNON QUINN EMANUEL URQUHART OLIVER & HEDGES 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CA. 94065 MR. MICHAEL E. RICHARDSON BECK REDDEN & SECREST 1221 MCKINNEY SUITE 4500 HOUSTON, TX. 77010

JASON C. WHITE HOWREY LLP

Dockets.Justia.com

-21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT REPORTER: FOR DEFENDANT SPECIFIC MEDIA, INC.: FOR DEFENDANT CONTEXTWEB, INC.: FOR DEFENDANT 24/7 REAL MEDIA, INC.: FOR DEFENDANT SEEVAST CORPORATION: MR. ROBERT J. FLUSKEY, JR. HODGSON RUSS 140 PEARL STREET SUITE 100 BUFFALO, N.W. 14202 FOR DEFENDANT FAST SEARCH & TRANSFER INC.: FOR DEFENDANT FACEBOOK, INC.: 321 NORTH CLARK STREET SUITE 3400 CHICAGO, IL. 60610

MR. J. THAD HEARTFIELD THE HEARTFIELD LAW FIRM 2195 DOWLEN ROAD BEAUMONT, TX. 77706

MR. WILLIAM G. LAVENDER LAVENDER LAW 210 N. STATE LINE AVENUE SUITE 503 TEXARKANA, AR. 75504

MS. MELISSA SMITH GILLAM & SMITH 303 S. WASHINGTON AVENUE MARSHALL, TX. 75670

MR. MATTHEW D. ORWIG SONNENSCHEIN NATH & ROSENTHAL 1717 MAIN STREET SUITE 3400 DALLAS, TX. 75201

MR. TREY YAR YARBROUGH - WILCOX 100 E. FERGUSON, SUITE 1015 TYLER, TX. 75702 MS. LIBBY CRAWFORD, CSR OFFICIAL COURT REPORTER 500 STATE LINE AVENUE

-31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS RECORDED BY STENOMASK VERBATIM REPORTING, TRANSCRIPT PRODUCED BY CAT SYSTEM. TEXARKANA, TX. 75501 903.794.4067 EXT. 237

-41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (OPEN COURT) THE COURT: GENTLEMEN, HAVE A SEAT. I UNDERSTAND PROCEEDINGS TEXARKANA, TEXAS JULY 24, 2008

THAT THE PARTIES HAVE REACHED AN AGREEMENT ON MOST OF THE ISSUES FROM A SCHEDULING STANDPOINT, AND I APPRECIATE YOUR EFFORTS ON SUCH SHORT NOTICE, SO TO SPEAK. BUT WHAT SAYS THE

PLAINTIFF, SORT OF TELL ME THE SUBJECT MATTER OF THIS CASE AND WHAT'S INVOLVED. AND I HAVE LOOKED AT YOUR JOINT MANAGEMENT

REPORT, BUT TELL ME A LITTLE MORE ABOUT THIS CASE. MR. COOKE: SURE, YOUR HONOR. MIKE COOKE FOR THE VERY

PLAINTIFF OF FRIEDMAN, SUDER & COOKE FROM FORT WORTH.

SIMPLY, THE CASE HAS BEEN PENDING A NUMBER OF MONTHS, EIGHT MONTHS OR SO. THERE. THERE HAVE BEEN SOME MOTIONS PENDING HERE AND

BUT THE GIST -THE COURT: BUT I MEAN THE TECHNOLOGY OF THE CASE. MR. COOKE: THE GIST OF THE CASE IS ADAPTIVE INTERNET

SEARCHES USING CERTAIN INFORMATION GLEANED IN THE COURSE OF THE PROCESS WHERE YOU BASICALLY TAKE PROFILES OF INFORMATION, PERHAPS FROM THE USER, INFORMATION ABOUT THAT PERSON, INFORMATION FROM THE DOCUMENTS TO BE SEARCHED, AND USING THAT INFORMATION TO TRY TO HAVE A MORE SPECIFIC SEARCH ON THE INTERNET. SO, FOR EXAMPLE, IF YOU TAKE GOOGLE AND SOMEONE USES A

-51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ON -MR. COOKE: WE WILL DEFINITELY EVENTUALLY ­- WE WILL LIVE WITH THE TEN CLAIM LIMIT. THE COURT: WELL, WHAT ARE YOU STARTING WITH? MR. COOKE: WELL, WE HAVE TWO, RIGHT NOW TWO DEPENDENT CLAIMS. THE COURT: OKAY. MR. COOKE: I EXPECT THAT COULD EBB AND FLOW, BUT THAT'S THE GIST OF IT. THE COURT: WHAT SAYS THE DEFENDANTS? MR. CANNON: GOOD MORNING, YOUR HONOR, THIS IS BRIAN CANNON FROM QUINN EMANUEL FOR GOOGLE. RESPOND ON DESCRIBING THE TECHNOLOGY. I JUST BRIEFLY WOULD THE PLAINTIFFS HAVE GOOGLE SEARCH, THAT INFORMATION AND ACTUAL SEARCH REQUEST IS GLEANED, IT'S BROKEN DOWN. YOU MAY FIND SOMETHING ABOUT THAT

PARTICULAR PERSON THAT HELPS YOU MATCH A MORE SPECIFIC SEARCH TO THE ACTUAL THING THAT THE USER IS LOOKING FOR. GIST OF IT. THE COURT: HOW MANY CLAIMS INVOLVED? MR. COOKE: WE HAVE A NUMBER OF CLAIMS, AT LEAST TWO INDEPENDENT CLAIMS. THE COURT: ANY PROBLEM WITH MY NORMAL LIMITATIONS THAT'S THE

SUED, THIS IS A PATENT CASE, OBVIOUSLY, AND THE PLAINTIFFS HAVE SUED A NUMBER OF DEFENDANTS, MOST OF WHOM I BELIEVE ARE SOFTWARE COMPANIES LIKE GOOGLE. THE PATENT IS ACTUALLY PRETTY

-61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SPECIFIC AND IT HAS TO DO WITH CREATING A USER PROFILE BY ANALYZING THE GRAMMATICAL SENTENCE STRUCTURE OF LANGUAGE THAT THE USER SUBMITS. SO THE USER WOULD SUBMIT TEXT, SUCH AS

SENTENCES OR PRIOR ARTICLES, AND THE INVENTION AS IT'S CLAIMED RELATES TO ANALYZING THE ACTUAL GRAMMATICAL STRUCTURE, LIKE NOUN, VERB, ADJECTIVE, TO CREATE A PSYCHOLOGICAL EDUCATIONAL PROFILE OF THE USER, AND USING THAT PROFILE TO MAKE SPECIFIC INTERNET SEARCHES. THE COURT: AND I BELIEVE THE PARTIES HAVE BASICALLY REPRESENTED THEY DON'T BELIEVE A TECHNICAL ADVISOR IS NECESSARY. IS THAT CORRECT? MR. SPANGLER: THAT IS CORRECT, YOUR HONOR. MR. CANNON: THAT'S CORRECT UNLESS YOUR HONOR FEELS IT WOULD BE HELPFUL, AND WE DON'T THINK IT IS NECESSARY. THE COURT: WELL, WE WILL GO WITH YOUR REPRESENTATION INITIALLY, RECALLING I HAVE A LONG MEMORY. DISCOVERY. CASE? NORMAL LIMITS ON

ANY PARTICULAR ISSUE ON DISCOVERY LIMITS IN THIS

NOW, JUDGE WARD HAD NOT ACTUALLY ENTERED ANY TYPE OF HE ACTUALLY I BELIEVE WAS SCHEDULED TO HAVE

SCHEDULING ORDER.

A MANAGEMENT CONFERENCE JULY 29TH, IF MEMORY SERVES ME CORRECT. YOU HAVEN'T BEEN OPERATING UNDER ANY TYPE OF SCHEDULING ORDER TO DATE? MR. SPANGLER: NO, YOUR HONOR. WE ACTUALLY REACHED

IN OUR 26(F) REPORT, WE HAD TWO DISPUTES STILL LEFT ON DISCOVERY. WE HAVE WORKED THOSE OUT, FOR INTERROGATORIES,

-71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHICH IS SECTION 5(A). THE COURT: RIGHT. I NOTICE IT'S A LITTLE UNUSUAL,

THE PLAINTIFF WANTED A FEW MORE THAN THE DEFENDANTS, SO THAT'S A TWIST. MR. SPANGLER: WELL, WE HAVE AGREED TO TWENTY COMMON AND TEN INDIVIDUAL, AND THEN FOR DEPOSITION HOURS, WHICH IS SECTION 5(E), WE HAVE AGREED TO ONE HUNDRED HOURS OF DEPOSITION. THE COURT: IS THAT TOTAL? MR. SPANGLER: YES, SIR. DISCOVERY DISPUTES WE HAVE. THE COURT: VERY WELL. MR. SPANGLER: SO IT'S ALL WORKED OUT. THE COURT: WITH MY NORMAL LIMITATIONS CONCERNING TIME LIMITS ON EXPERT DEPOSITIONS, NOT TO LAST MORE THAN TEN HOURS, AND 30(B)(6) WITNESSES. MR. SPANGLER: WELL, ACTUALLY, YOUR HONOR, WITH RESPECT TO THE EXPERTS, THE -THE COURT: WHAT? MR. SPANGLER: WITH EXPERTS, THE PARTIES HAVE, THE DEFENDANTS HAVE SO MANY DIFFERENT PARTIES -THE COURT: RIGHT. SO WHAT DO YOU HAVE IN MIND IN AND THAT IS ALL THE

THAT REGARD SO WE DON'T RUN INTO ANY DISAGREEMENTS? MR. SPANGLER: WE WOULD LIKE TO WAIT IF POSSIBLE, IF WE'D HAVE THE COURT'S APPROVAL, BECAUSE SOME OF THE DEFENDANTS

-81 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITH THAT. HAVE ALREADY SETTLED AND MORE WE EXPECT WILL. AND THEN AS WE

GET TOWARDS THE MARKMAN HEARING, THE PARTIES WILL HAVE A CLEARER PICTURE OF WHO IS GOING TO BE IN THE CASE, WHAT INTERESTS ALIGN, AND WE WILL BE ABLE TO NARROW THE NUMBER OF EXPERTS AT THAT TIME, IF THAT'S OKAY. THE COURT: I DON'T HAVE ANY DISAGREEMENT OR PROBLEM NORMALLY WHAT I SEE WHEN YOU HAVE A NUMBER OF

DEFENDANTS, HAVE X NUMBER OF COMMON HOURS AND THEN X NUMBER OF HOURS FOR EACH INDIVIDUAL DEFENDANT. BUT I WOULD LIKE SOME

TIME LIMIT SO THEY DON'T LAST FOR DAYS AND DAYS, WHICH ONLY CREATES MORE PROBLEMS FOR THE COURT WHEN THAT HAPPENS. MR. SPANGLER: WE WILL WORK THAT OUT, YOUR HONOR. THE COURT: SO WITH THAT UNDERSTANDING, THEN WE WILL GO FORWARD WITH YOUR SUGGESTION. NORMAL AGREEMENT, BEFORE

DISCOVERY DISPUTES MEET AND CONFER, IF YOU HAVE LOCAL COUNSEL, WITH LOCAL COUNSEL PRESENT BEFORE YOU FILE A MOTION. I WILL

HAVE A NORMAL AGREEMENT, OR ENTER MY NORMAL ORDER ON MOTION PRACTICE, NEED LEAVE OF COURT BY LETTER BRIEF TO FILE A MOTION FOR SUMMARY JUDGMENT. WHAT ELSE, PROTECTIVE ORDER? PROTECTIVE ORDER? MR. SPANGLER: YOUR HONOR, BECAUSE THIS TIME SCHEDULE WAS A LOT MORE CRAMPED THAN THE COURT NORMALLY PROVIDES, WE HAVE TALKED ABOUT A PROTECTIVE ORDER. AUGUST 18TH TO SUBMIT AN AGREED ONE. WE HAVE ASKED `TIL IF IT'S NOT AGREED BY WHERE ARE THE PARTIES ON A

-91 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE -MR. SPANGLER: 17TH. THE COURT: ­- 17TH. IS THAT OPEN WITH US, MRS. THEN, THE COURT ENTER ITS STANDARD PROTECTIVE ORDER SO WE CAN START MOVING FORWARD. ABLE TO AGREE. I THINK THE PARTIES ARE GOING TO BE

OBVIOUSLY THE BIG ISSUE IS SOURCE CODE.

EVERYTHING ELSE SHOULD BE PRETTY EASY. THE COURT: MY NORMAL PRACTICE, IF BY AUGUST 18TH YOU ARE UNABLE TO AGREE, SUBMIT YOUR COMPETING ORDERS AND I WILL ENTER ONE OF THE ORDERS OR SOME COMBINATION THEREOF. MR. CANNON: I AM SORRY, YOUR HONOR. AS COUNSEL

SAID, IN THE INTERIM TIME WE HAD AGREED THAT SOURCE CODE WOULD NOT BE PRODUCED UNTIL THE FINAL PROTECTIVE ORDER IS ENTERED BY THE COURT. MR. SPANGLER: THAT IS CORRECT, YOUR HONOR. THE COURT: THAT OFTEN BECOMES AN ISSUE. ANYONE

THAT'S BEEN IN MY COURT, THERE ARE A BUNCH OF PROTECTIVE ORDERS OUT THERE AND WHAT I NORMALLY DO, BUT EACH CASE CAN BE UNIQUE AND NEEDS TO BE TWEAKED ACCORDINGLY OCCASIONALLY. I BELIEVE YOU WERE TALKING IN TERMS OF SEPTEMBER ON A CLAIM CONSTRUCTION, SEPTEMBER OF `09, OBVIOUSLY. CORRECT? MR. SPANGLER: YES, YOUR HONOR. MR. CANNON: THAT IS CORRECT, YOUR HONOR. THE COURT: TO BE MORE EXACT, THAT WAS SEPTEMBER IS THAT

- 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 7 TH. PLAINTIFF. MR. CANNON: I HAVEN'T CONSULTED WITH CO-DEFENDANTS, BUT I WOULD SAY TWO TO THREE HOURS. THE COURT: I WILL GIVE EACH SIDE TWO HOURS. WELCOME TO USE LESS. MR. CANNON: UNDERSTOOD, YOUR HONOR. THE COURT: TUTORIAL NECESSARY? MR. SPANGLER: I DON'T THINK IT WILL BE IN THIS CASE, YOUR HONOR. THE COURT: YOU MAY USE PART OF YOUR TWO HOURS. MR. CANNON: WITH THE TWO HOURS, YOUR HONOR, WE SHOULD BE ABLE TO. THE COURT: VERY WELL. DOCKET COORDINATOR: START AT 9 O'CLOCK? THE COURT: EXCUSE ME? DOCKET COORDINATOR: START AT 9? THE COURT: YES, WE WILL START AT 9 O'CLOCK ON THE NOW I WANTED TO TAKE UP ­- THERE ARE FOUR PENDING -YOU ARE SCHROEDER STILL? DOCKET COORDINATOR: YES. THE COURT: IT APPEARS TO BE, SEPTEMBER 17TH OF `09. HOW MUCH TIME WOULD EACH SIDE FEEL LIKE YOU NEED? MR. SPANGLER: HOUR AND A HALF A SIDE FOR THE

WHEN I RECEIVED THIS CASE FROM JUDGE WARD, THERE WERE FOUR PENDING MOTIONS ON MY SIX MONTH LIST. AND FOR THOSE OF YOU

- 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AGAIN. WHO HAVE CLERKED, YOU UNDERSTAND THE SIGNIFICANCE OF THAT, SO I WOULD SURE LIKE TO TALK ABOUT THOSE FOUR PENDING MOTIONS. I

BELIEVE GOOGLE HAS A MOTION TO DISMISS PENDING; FACEBOOK HAS A MOTION TO DISMISS PENDING, OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT; YAHOO! HAS A MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT. SO I AM ASSUMING FROM A PROCEDURAL

STANDPOINT, IF THERE WAS A MOTION TO DISMISS THE INITIAL COMPLAINT, WE NOW DISMISS THAT ONE. COMPLAINT? HAS THERE BEEN AN AMENDED

AND WHO REPRESENTS YAHOO!? MR. WHITE: I DO, YOUR HONOR. THE COURT: YOU HAVE RENEWED YOUR MOTION TO DISMISS

THE AMENDED COMPLAINT, SO WE CAN DISMISS WITHOUT PREJUDICE THE INITIAL MOTION TO DISMISS SINCE THERE IS A PLEADING THAT'S REPLACED IT. AND CONTEXTWEB HAS A MOTION TO CHANGE VENUE.

WHO REPRESENTS? MR. ORWIG: MATT ORWIG, YOUR HONOR. GOOD TO SEE YOU

CONTEXTWEB BELIEVES ­- WE ARE WORKING ON THE

SETTLEMENT DOCUMENTS TODAY, AND SO I THINK THAT WILL BE A MOOT POINT. THE COURT: OKAY. CAN WE DISMISS IT WITHOUT

PREJUDICE IN THE EVENT SOMETHING HAPPENS ON THE SETTLEMENT YOU CAN ALWAYS RENEW IT? MR. ORWIG: THAT'S FINE, YOUR HONOR. THE COURT: VERY WELL. WHO REPRESENTS FACEBOOK? SO LET'S TALK ABOUT FACEBOOK.

MR. HEARTFIELD.

- 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MOTION. MR. HEARTFIELD: THAD HEARTFIELD FOR FACEBOOK, AND WE ARE ALSO WORKING THROUGH SOME FINAL SETTLEMENT DOCUMENTS. I THINK THAT CAN BE DISMISSED WITHOUT PREJUDICE. THE COURT: WITHOUT PREJUDICE. AND THEN IF YOUR SETTLEMENT DOESN'T FINALIZE, YOU CAN ALWAYS RENEW IT. TAKES CARE OF TWO OF THE FOUR. SO THAT SO

GENTLEMEN, WHEN COULD WE SET A COUPLE OR TWO DO YOU WANT TO BE

THE MOTION TO DISMISS THE AMENDED COMPLAINT? OR THREE WEEKS, WILL YOU BE AVAILABLE THEN? HEARD ON YOUR MOTION TO DISMISS? PAPERS?

DO YOU WANT TO STAND ON THE

WHAT'S YOUR PREFERENCE IN THAT REGARD? MR. CANNON: YOU MENTIONED THAT GOOGLE HAD MADE A GOOGLE HAS NOT MADE A MOTION. THE COURT: I AM SORRY, I MEANT YAHOO!. YAHOO! HAS A

MOTION PENDING TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT. MR. WHITE: THAT IS CORRECT, YOUR HONOR. NEED TO BE HEARD. THAT. MR. SPANGLER: WE CAN CERTAINLY STAND ON THE PAPERS. THE COURT: VERY WELL. SO I BELIEVE WE HAVE WE DON'T

I THINK WE CAN STAND ON THE PAPERS FOR

ADDRESSED ALL THE PENDING MOTIONS ON THE SIX MONTH LIST. TRIAL DATE, YOU WERE IN DISAGREEMENT ABOUT THAT. RESOLVED THAT DISAGREEMENT? MR. CANNON: WE HAVE NOT RESOLVED THAT ONE. MR. SPANGLER: WE HAVE NOT, YOUR HONOR. THE COURT: OBVIOUSLY PLAINTIFF WANTS IT IN MARCH OF HAVE YOU

- 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THOUGH. MR. SPANGLER: WELL, HOPEFULLY YOU WON'T HAVE THAT MANY TERMS AT THE HEARING. THE COURT: HE IS MORE EFFICIENT THAN I AM. MR. SPANGLER: BUT OUR MAIN REASON FOR THAT IS BECAUSE THIS CASE HAS PASSED AROUND SO LONG AND IT'S BEEN PENDING, I UNDERSTAND THE DISTRICT HAS SLOWED DOWN MAINLY BECAUSE OF US PATENT LAWYERS, BUT WE WOULD BE LOOKING AT OVER THREE YEARS FROM FILING TO TRIAL IF WE DID OCTOBER OF 2010. THE COURT: OKAY. POSITION OCTOBER IS -MR. CANNON: YOUR HONOR, I DON'T THINK THE MATH ADDS UP JUST IN TERMS OF THE DAYS FROM A SEPTEMBER 17 MARKMAN HEARING, JUST LOOKING AT WHAT, YOU KNOW, WE HAVE AGREED TO IN TERMS OF POST-MARKMAN DECISION ACTIVITIES. WE HAVE GOT TO AND WHY DO THE DEFENDANTS TAKE THE 2010; DEFENDANTS WANT IT IN OCTOBER OF 2010. DO YOU THINK WE

CAN ACCOMPLISH THE CLAIM CONSTRUCTION, HAVE AN ORDER OUT AND DO ALL THE NECESSARY, MEET ALL THE NECESSARY DEADLINES, ASSUMING I HAVE IT OUT IN A REASONABLE TIME AFTER THE CLAIM CONSTRUCTION ORDER? MR. SPANGLER: I DO, YOUR HONOR. RIGHT NOW, FOR

EXAMPLE, JUDGE WARD IS SETTING HIS WHERE HE HAS MARKMAN AND TRIAL FOUR TO FIVE MONTHS. THE COURT: JUDGE WARD IS MORE SPEEDY THAN ME,

CLOSE FACT DISCOVERY, BEGIN EXPERT DISCOVERY, OBJECTIONS TO

- 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXPERT DISCOVERY, DISPOSITIVE MOTIONS. AND BY MY COUNT,

THAT'S ABOUT FIVE MONTHS OF ACTIVITY AFTER THE CLAIM CONSTRUCTION DECISION. AROUND OCTOBER OF `09 -THE COURT: WELL, HERE IS WHAT WE WILL DO. AGAIN, AND SO IF YOUR HONOR, YOU KNOW, RULES

THIS CASE HAS BEEN ON THE DOCKET SOME TIME, AND IF I SET IT FOR OCTOBER OF 2010 THAT'S ALMOST A YEAR BETWEEN CLAIM CONSTRUCTION AND TRIAL. I AM GOING TO GO AHEAD AND SET IT FOR

MARCH OF 2010 AND WE CAN ALWAYS REVISIT THIS IF I DON'T HAVE THE ORDER OUT IN A TIMELY FASHION. MR. SPANGLER: THANK YOU, YOUR HONOR. THE COURT: SO I HOPE THE PARTIES CAN AGREE ON THE REST OF THE DATES WITH THAT TRIAL SETTING. MR. SPANGLER: YEAH. AFTER THE MARKMAN. WE MAY NEED TO TWEAK THE DATES

I DID WANT TO FLAG FOR THE COURT THAT EVEN

THOUGH WE HAD ABOUT FIFTEEN DATES IN DISPUTE, WE HAVE WORKED OUT MOST OF THEM. THERE ARE STILL ABOUT SEVEN OR EIGHT IN

DISPUTE, BUT WE THINK SINCE WE HAVE AGREED ON THE BIG ONES, WE CAN FINALIZE A SCHEDULE NOW. THE COURT: LIKEWISE, WHEN YOU SUBMIT EITHER AN AGREED PROTECTIVE ORDER OR YOUR COMPETING TERMS, SUBMIT EITHER AN AGREED SCHEDULING ORDER WITH THESE DATES OR YOUR COMPETING SCHEDULING ORDERS AND I WILL ENTER ONE OF THE TWO OR SOME MODIFICATION OF ONE OF THEM, OR BOTH OF THEM. MR. SPANGLER: THANK YOU, YOUR HONOR.

- 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR. THE COURT: ANYTHING FROM THE -MR. CANNON: I THINK WE ARE GOOD, YOUR HONOR. THE COURT: LET ME MAKE ONE LAST CHECK OF MY NOTES. I BELIEVE THAT'S ALL. ON SHORT NOTICE. I APPRECIATE YOUR EFFORTS, LIKE I SAID, THE COURT: ANYTHING ELSE THAT NEEDS ­- SO THE FINAL PRETRIAL WILL BE THE FIRST MONDAY IN MARCH OF 2010, JURY SELECTION THE FOLLOWING DAY. I NOTICE YOU HAVE HAD SOME IT'S WAY TOO EARLY TO

INFORMATION REGARDING TIME LIMITS.

WORRY ABOUT HOW LONG IT'S GOING TO TAKE TO TRY THE CASE, SO WE WON'T NEED TO TAKE THAT UP. IT SEEMS THAT AT LEAST SOME ANY

PARTIES ARE MOVING IN THE DIRECTION OF SETTLEMENT. THOUGHTS ON MEDIATION?

IF SO, WHEN WOULD IT BE HELPFUL?

MR. SPANGLER: PLAINTIFF IS ALWAYS SHOCKINGLY READY TO MEDIATE, YOUR HONOR. THE COURT: YEAH. MR. CANNON: WE DON'T THINK MEDIATION WOULD BE HELPFUL AT THIS TIME UNTIL WE MOVE ALONG A LITTLE MORE IN THE CASE. THE COURT: I CERTAINLY ENCOURAGE IT IF IT BECOMES APPROPRIATE AND THE PARTIES FEEL IT WOULD BE OF BENEFIT. TOPICS WE HAVEN'T COVERED? MR. SPANGLER: NOTHING FROM THE PLAINTIFF, YOUR ANY

BUT WHEN I RECEIVED THIS FROM JUDGE WARD I

THOUGHT I WOULD TRY TO GIVE IT SOME QUICK ATTENTION.

- 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATE: AUGUST 10, 2008 /S/LIBBY CRAWFORD LIBBY CRAWFORD, CSR, CVR OFFICIAL COURT REPORTER I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. REPORTER'S CERTIFICATION WE WILL BE IN RECESS.