Mirror Worlds, LLC v. Apple, Inc.

Filing 426

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Pretrial Proceedings held on 8/26/10 before Judge Leonard Davis. Court Reporter: Shea Sloan, shea_sloan@txed.uscourts.gov. 69 pages 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 11/18/2010. Redacted Transcript Deadline set for 11/29/2010. Release of Transcript Restriction set for 1/27/2011. (sms, )

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Mirror Worlds, LLC v. Apple, Inc. 1 2 3 4 -vs5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 COURT REPORTER: 20 21 22 23 24 25 Proceedings taken by Machine Stenotype; transcript was produced by a Computer. MS. SHEA SLOAN 211 West Ferguson Tyler, Texas 75702 FOR THE PLAINTIFF: MR. KENNETH L. STEIN MR. IAN DIBERNARDO STROOCK & STROOCK 180 Maiden Lane New York, NY 10038-4982 MR. OTIS CARROLL MS. DEBORAH RACE IRELAND, CARROLL & KELLEY 6101 S. Broadway; Ste. 500 Tyler, Texas 75703 A P P E A R A N C E S TRANSCRIPT OF PRETRIAL HEARING BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES DISTRICT JUDGE APPLE, INC. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION MIRROR WORLDS, LLC ) ) ) ) ) ) ) DOCKET NO. 6:08cv88 Tyler, Texas 9:00 a.m. August 26, 2010 Doc. 426 Dockets.Justia.com 2 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 MR. S. CHRISTIAN PLATT PAUL HASTINGS 4747 Executive Dr., 12th Floor San Diego, CA 92121 MR. ALLAN M. SOOBERT PAUL HASTINGS 875 15th St., NW Washington, DC 20005 FOR THE DEFENDANTS: MR. JEFF G. RANDALL PAUL HASTINGS 1117 S. California Ave. Palo Alto, CA 94304-1106 3 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 here. please. THE CLERK: The Court calls Case No. 6:08cv88, THE COURT: All right. P R O C E E D I N G S Please be seated. Ms. Thompson, if you will call the case, Mirror Worlds, LLC v. Apple, Inc. THE COURT: MR. CARROLL: Okay. Announcements. Otis Your Honor, good morning. Carroll for Mirror Worlds with Deborah Race, and with us we have Ken Stein and Ian DiBernardo. for pretrial. THE COURT: MR. RANDALL: Thank you. Okay. And we are here and ready Your Honor, Jeff Randall for Apple. With me are my partners Allan Soobert and Christian Platt. THE COURT: All right. We have a little pretrial Why don't we start by each side just giving me a very brief five-minute sort of opening statement to clue me in as to what the case is all about and where you are -- sort of a mini version of what you do to the jury where I can see what the real issues are going to be in the case, and then just your thoughts on the best way to proceed with the pretrial. MR. CARROLL: Your Honor, if the Court please, let And Mr. Stein might want me take at least part of our time. to clean up after me. THE COURT: That's a big job, Mr. Carroll. 4 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 says. This case involves a patented technology which was described back in the early '90s by a famous -- and you have heard that before -- but by a famous computer scientist at Yale named David Gelertner, G-E-L-E-R-T-N-E-R. And David MR. CARROLL: Well, thank you. That's what my wife Gelertner wrote a book called Mirror Worlds, among others. In this Mirror Worlds book Gelertner took to task the state of the art in personal computing from the standpoint of how illogical and unworkable and counter-intuitive the notion and technique of file folders for storing information was. And in his book he said that instead of that very artificial concept, he likened it to shoe boxes. You know, when you put stuff in shoe boxes and label the shoe boxes and then you are left with, you know, what did I really mean when I labeled shoe boxes, you know, "my court stuff," you know, what does that mean? He said that a much more intuitive way to do it and much more consistent with the way that I do it and you do it and everybody in the world does it, is on a time stream or what he called a life stream. For instance, he said that the most common book most people are familiar with is a diary. And he says a diary has three components; past, present, and future. He said that is how computers ought to be able to 5 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 organize information. His big problem was, his big objection was that computers were artificially created to discourage otherwise smart people from using them, and this was an example. So Gelertner wrote this book in '92, and then he had a life-changing experience. And I forgot exactly the year, By the way, the book got but it wasn't too long after that. big acclaim. It was written up in the New York Times and all this kind of stuff. For reasons he still isn't sure about, he was told by the FBI, but he was a target of the Unabomber. One day he opens up a box at Yale University and it explodes and blows off a good chunk of his hand and blinds him in one eye and almost kills him. And the Unabomber targets him because the Unabomber says the way he targeted other people, that he doesn't like smart people that are trying to overly technify the world. So Gelertner from that point realizes how short life is and he gets to work on this concept, and he files these patent applications in 1996. And these patent applications result in the patents-in-suit, and we say cause quite a stir to the point that Steve Jobs, the head man at Apple, wrote two or three important emails and essentially said we need these. And today we have a lawsuit as to whether Steve Jobs 6 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 morning. was right, whether they did, in fact, need them and, in fact, use them. didn't. We say they did. And, of course, they say they And that is, you know, why we are here; and hopefully we will get a resolution from the jury. And I take no credit for this, but my colleagues and the good folks over at Paul Hastings have worked very hard on the case. They have gotten to the point where all of the exhibits -- and I fussed at our guys because there are way too many -- but we have exchanged the way too many exhibits. haven't waded through the objections yet under your order. think we are supposed to have exchanged them by the 31st. are ahead of that, I am glad to say. We have got dep clips exchanged -- or not exchanged? MR. RANDALL: MR. CARROLL: Exchanged. Exchanged. We talked about that this We I We We haven't obviously agreed on what is what about And I talked to my them, but we hope to do that pretty quick. friends at Paul Hastings this morning about this, and obviously it is whatever the Court's pleasure is, my thought is that the most important thing that we could know after today is whether we are still on track to get our jury on the 7th and whether we are still on track to start trial on the 20th. And we don't need a whole a lot of help on the motions in limine for jury pick. And if we are still on track 7 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 the 20th, that leaves us a better part of three weeks to see if we can wade through some more of these things. can, great. If we If we can't, then unfortunately we would have to bother you about that. But the only thing that I can think of that we need from our standpoint to get a jury would be some comfort that our friends on the other side aren't going to talk about in jury selection and throughout the whole case, but particularly in jury selection, what is going on in the Patent Office vis-a-vis reexam, their own patents other than the cited patents for invalidity. What were the other two, Ken? MS. RACE: Rulings. Oh, yeah, any rulings by the Court. MR. CARROLL: You have done some violence to parts of our patent, and you know, we are hopeful that the jury won't hear about that. And any dismissals by us of claims, and we have way too many and we cut them down -THE COURT: MR. CARROLL: agree more, Judge. MS. RACE: Still do. We still have way too many. Couldn't I think that is it. Inequitable conduct. And inequitable conduct. They have MR. CARROLL: got an inequitable conduct claim. Is that it? 8 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 MS. RACE: Other litigation. Other litigation. MR. CARROLL: Okay. So that is my view of what we would need, some comfort that we are not going to talk about that at least at jury selection. The last point -- and we talked about this yesterday when Mr. Patterson's help -- Apple has a counterclaim, Your Honor, against an earlier Mirror Worlds entity, which at one point owned the patent, about a different patent of Apple's. That entity we don't care about. So we are prepared, and I told my friends over here that this morning and Patterson told them last night, we are prepared to concede infringement, admit validity. And we would, you know, go whole hog and confess judgment except for they don't have a damage model. don't have a damage expert. They And the only thing I know -- I have been told by my colleagues is that the accused sales, guts, feathers and all are like $50,000. So, you know, if there was any way to base a reasonable royalty other than just guessing, you know, we would go ahead and do that. But our suggestion, my suggestion was that we go ahead and get rid of that piece of the case. And if we can't figure out a number to attach to the judgment, we would let you make that call. front of the jury. But we don't think that has any place in So that is where we are on that piece of 9 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 court. it. THE COURT: Would that other -- would the counterclaim -- you said it is another entity, would it affect the judgment if plaintiff were to prevail in this case? MR. CARROLL: Wouldn't even be an offset. It is a completely different entity. credit assuming we win. THE COURT: MR. CARROLL: MR. STEIN: You know, we wouldn't even get a Anything else? Thank you, Your Honor. One point of clarification. Dr. Gelertner's idea, as Mr. Carroll said, goes back to Mirror Worlds -- he developed that over time and, you know, fleshed it out and added lots of features to it. that Mr. Carroll -THE COURT: MR. STEIN: I'm sorry. I'm not understanding you. Some of the things What I was saying is that the seeds of Dr. Gelertner's ideas went back to the book that Mr. Carroll mentioned, Dr. Gelertner's book from the early 1990's. But over the course of time, he fleshed out those ideas, you know, as Mr. Carroll explained -THE COURT: then, right? MS. RACE: No. He was afraid I talked us out of You are not admitting that was prior art MR. CARROLL: 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 you. MR. RANDALL: THE COURT: would like to. Should I address -Yes, that would be fine. Wherever you THE COURT: Okay. I understand. All right. Thank Either podium, I will put it that way. Jeff Randall, Your Honor, for Apple. First, what this MR. RANDALL: Let me address your two issues. case is about. The patents that have been asserted by Mirror Worlds against Apple relate really to two main functionalities or features. One is an allegedly new way to organize and store documents on computer systems. And the other feature is how -- an allegedly new way to display those documents on a screen, the visual display of the images of the documents. Those are the two main features of all four patents; and common elements run through all of the claims that are asserted, Your Honor. And with respect to those two issues, the first issue is the new way to organize documents. I think Mr. Carroll was generally right that they claim that the old way was a hierarchy of files and folders and you name the documents, you name the folders, you have an issue with nested folders, and sometimes you forget the name of your folders, you don't know where they are. So Mirror Worlds' inventors alleged to come up with this new revolutionary and distinct way of organizing 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 documents; that instead of putting them in folders with file names and using the typical hierarchical system used in Apple's operating system, Microsoft's operating system and Unix's operating system, that instead they had a system that would keep all documents on the computer, all documents in a chronological stream, and that stream would have, as Your Honor construed it at Markman, would have a past, a present, and a future section to it. That is what it had to have. One of the things that -- one of the big issues in this case is that Apple simply doesn't do that. different way of doing it. No doubt about it. That is a That way has some benefits, no question about it. detriments. different. But it also has a lot of It is So there is pros and cons to using it. Apple uses the same hierarchical storage and Same with organization of documents it has always used. Microsoft and Unix. So, number one, we simply don't do it. Number two, that concept of storing documents in this -- all of the documents in this chronological manner, is not new. It is actually a crowded field. There is art out there that did exactly the same thing that they claim in these patents. It is a crowded field. DEC, Digital Equipment Corporation had a system called Workscape that is very elegant, very sophisticated. have got a video on it. witness. We have got testimony from the At MIT We We have a whole host of evidence on that. 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 field. they were doing work on the same issue. There is a gentleman in Europe in London that had a system called Memoirs that literally was a diary, an electronic diary of your life. You could calendar your whole life, and this system also utilized that same what they considered to be a unique and novel functionality. So with respect to that issue, it is a crowded Apple simply doesn't use it though, but there are other entities that had the same idea before Mirror Worlds. With respect to the second aspect, Your Honor, visually displaying the documents, they have in their patent under I think Figure 1, a representation of images that they claim is novel and unique. invention. What it does is it places document images in a -what they call a receding, foreshortened stack. So the That is a large part of their documents are set back, they recede back into the screen, and they get smaller. So the stack of documents gets smaller as it recedes back in showing those are the older documents, these are the newer documents. novel. Well, again, the prior art shows exactly that; it shows systems that do -- that lay their documents out in the same manner, so that is not new either. doesn't do it. But Apple simply They claim that is somehow The accused feature in the Apple products is 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 the way that they laid out albums in Cover Flow. And the way they laid out albums is they laid them across the screen like this (indicating). Okay. There is no doubt in this case if you look at the source code and everything else, that Apple's documents or images of their albums are laid across the screen. in the same plane. Okay. They don't go back in. They are They are They not foreshortened, they don't recede back in the screen. simply lay them across the same plane. THE COURT: In other words, more two-dimensional where you allege that the alleged dimension is more three-dimensional. MR. RANDALL: That's right. That is the element that runs through all of the claims that are asserted in this case. A Receding, foreshortened stack -- I'm sorry not all of A Receding, foreshortened We the claims but many of the claims. stack. And there are a couple of elements we don't do. don't timestamp the documents. I think Your Honor correctly construed one of the elements in the case that runs through many of their claims is that the documents are uniquely identified by date and timestamp. have that. It has to. For their system to work it has to That is what they claimed as an element; that each document has a unique date and timestamp that uniquely identifies that document from all other documents. 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 Apple doesn't use that system. Apple has other many Apple That is documents that could have the same date and timestamp. has metadata, yes, but they use a document ID number. what Apple uses. They use a different system. They simply So we don't use the system that is required in the claims. have brought a number of motions for summary judgment here on those issues. With respect to -- and I have addressed a couple on noninfringement, I have addressed a couple of invalidity issues. With respect to one thing to the covers of those albums, Your Honor, across the same plane, you know, they say things like, well, you know, they appear to be receding. have some shadowing and things like that, so there is some perspective; but that is not what the claim language says, it just isn't. We simply don't meet the claim language. It They shouldn't go to the jury. There are other issues in this case, inequitable conduct and certainly that is an issue ultimately to be decided by Your Honor. But the inventors here submitted a They series of false declarations regarding inventorship. also did not disclose their earlier work and earlier writings about their alleged invention. So on one hand in one argument they may argue that they had this earlier work, but then they didn't disclose it 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 to the Patent Office. So there is a host of issues regarding inequitable conduct that the inventors engaged in. Then, lastly, Your Honor, with respect to our patent, Apple does have a patent. It covers the way in which documents appear on a screen, the visual way, how you can sort those documents; that you can sort them by date. stack them up. You can flip them on their side. You can You can do a whole host of manipulations, if you will, with the document images on the screen. that they infringe. They have moved to sever that patent from this case a number of times. That patent is an integral part of the And that is the patent that we believe case because it is one of the primary references that Apple relies on for invalidity, number one. Number two, it is we certainly use aspects of the Piles technology. Number three, when Apple was aware generally of Mirror Worlds and ultimately told Mirror Worlds, look, we are going to utilize our own technology in this field and our own patents, that is the patent, one of the patents certainly that we are utilizing. So it relates -- there is a whole host of But nonetheless we believe they do We believe with respect issues that it relates to. infringe. We believe it is invalid. to the damages issue there is a whole host of overlapping issues. 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 The hypothetical negotiation in this case with respect to their patents would have occurred around -- in June of 2004. Slightly before that in September of 2003 the hypothetical negotiation would have taken place with respect to the Apple patent. And there is a host of issues with respect to the hypothetical negotiation, what the parties would have considered in regards to the hypothetical negotiation, including perhaps a cross-license that are relevant to both sets of damage claims. And so they did raise this issue with me last night through Mr. Patterson, who has been handling settlement discussions. I won't get into those discussions, but he did I will say this: I haven't I raise it to me late last night. had a chance to talk to my clients about their proposal. will say that we have consistently sought to keep the Piles patent in our infringement case and all of the issues that would be presented to the jury, including damages, in this case. We opposed their motion to sever. motion to sever. You denied their I believe that we will continue to seek the presentation of those issues to the jury, but I haven't got a final answer from my client on this issue because it just came up last night. With respect, Your Honor, how to proceed in this Pretrial Conference, we have exchanged the depo designations 17 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 and the exhibits and the objections, and we are in the middle of making progress. I will say there has got to be a lot more progress made on these issues, but at least the parties are working on that. With respect to the issues that are before Your Honor right now, we do have motions for summary judgment, we do have motions in limine, and we do have Daubert motions. are prepared to argue those, and we will do so if Your Honor is willing to hear our argument. We can do it in a brief We fashion, if you like; but we would like to address them. THE COURT: Let's start with Apple's Daubert motion 220 to limit the testimony and expert reports of John Levy. MR. SOOBERT: Good morning, Your Honor. Allan Soobert on behalf of Apple. Apple's motion -- I will be brief. I will be happy to entertain any questions, but raises a number of discrete issues and topics which we believe are unreliable opinions offered by Dr. Levy, who is Mirror Worlds's technical expert in this case. There are a number of bases for the opinions that are not there. They are not in the report. And I will get to those in a minute. There is incorrect applications of claim constructions that were rejected during the Markman process; and Your Honor considered those proposed constructions, rejected them, and embraced Apple's constructions and Dr. Levy 18 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 has gravitated towards those constructions and misapplied those as well. Our view -- for example, Dr. Levy has taken your definition of "stream" and at the Markman process Mirror Worlds had sought to incorporate a limitation within that term that the "stream" not be bounded -- unbounded. Dr. Levy continues to advance that interpretation in order to distinguish prior art and misapplies and ignores your construction and applies his own. We think that is inherently Changes problematic and unreliable and ought to be excluded. his entire infringement analysis. THE COURT: Let me hear a response to the issue regarding the claim construction on "stream." MR. STEIN: Dr. Levy was quite clear in his expert report that he was, in fact, applying the Court's claim construction. He set it out, and he explained his reasoning in terms of the Court's claim construction. With respect to -- I think there were two items that Apple has identified in their briefs, which we responded to in our briefs on this issue, which they call Dr. Levy on. One was the one just mentioned by Mr. Soobert regarding a stream being unbounded. And the Court construed the "stream" to be a diary. And one aspect of a diary is that there is -- you can keep adding to it until you reach the limits of whatever the length 19 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 of the diary, whatever kind of physical limits there are. you designed your diary to be like a journal where you can keep adding volumes, it is an essential characteristic of a diary that you can keep adding to it. And so that is how the If concept of unbounded comes into Dr. Levy's opinion. We had argued during Markman that the term "diary" itself is, you know, a bit vague. bounds of a diary? What is the metes and The Court recognized that the patent uses that term in the patent in defining a "stream"; but it is sort of a colloquial term. something is a diary? So in Dr. Levy's opinion, he was just seeking to add some, you know, more definitive -THE COURT: Why is that important? I mean, I'm So how do you determine whether or not having trouble seeing -- the question to both sides, I mean, what is the -- they are saying that a diary should be unbounded and, therefore, I guess you could continue to add to it infinitely. Is that what you are saying? Is that what you mean by "unbounded"? MR. STEIN: THE COURT: Yes. So what is your problem with a diary that would continue as long as you are making entries to it, I guess is what they are saying? MR. SOOBERT: Your Honor, because Dr. Levy essentially says and distinguishes the prior art that, unlike 20 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 their invention which has this sort of infinite recession of the stream into the distance, which is, in their view, unbounded he takes that and looks at the prior art because the screen is not large enough or the stacks may not be big enough and distinguishes the prior art on that basis; that this prior art is not bound. THE COURT: is bounded -MR. SOOBERT: THE COURT: art is unbounded? MR. SOOBERT: it right on the head. That's correct. Your Honor, you hit It is Right. -- Dr. Levy does, and you say the prior In other words, he says this prior art You said, why is that important? really not important because it is not in the claim construction. Your claim construction is very clear in saying a "stream" is a time-ordered sequence that represents an electronic diary of a person's life that includes past, present, and future portions. It doesn't mention anything about being bounded or unbounded. And so Dr. Levy, and we have cited in our papers, in his validity report at Paragraphs 115, 119, 184, 274 just as examples -- and this is in our brief at Pages 9 through 10. Distinguishes prior art on that basis. In our view it is entirely improper to take a limitation that is not in the construction and say, oh, okay, the prior art doesn't meet 21 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 that limitation because it is bounded. And that is the problem we have. And the thing I will add is that that construction was proposed and rejected by Your Honor at Markman. THE COURT: Well, they were proposing a definition that -- they proposed "a time-ordered collection of data units or documents, unbounded in number, in which the time associated with the data unit can be in the past, present, or future and the location of file storage is transparent to the user." And then Apple contended it means a time-ordered sequence of documents that functions as a diary of a person or an entity's electronic life designed to have three main portions; past, present, or future. And the Court adopted Apple's proposed construction, but I am not sure that the parties ever really focused in on a claim scope question of whether that diary could be bounded or unbounded. I don't recall that in the arguments or the Am I missing something, or was briefing from the Markman. that teed up? MR. SOOBERT: I think that is a fair point. You know, I don't know that it was squarely a dispute that -- over the term "bounded" or "unbounded." But by the same token it was proposed expressly in Mirror Worlds' proposed construction. It was not adopted. Our view is by definition if it is not in the construction, it ought not to be used to 22 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 distinguish the claim. THE COURT: MR. STEIN: Response. Well, our position with respect to the prior art is that it cannot be a diary because a diary is something that you can keep adding to; and that prior art systems that Apple has identified is not a system where you can keep adding documents to and still have them work, you know, function the way they are supposed to function. You know, our position -- that is part of being a diary, and those prior art references do not disclose a diary. Whether we think it is useful for Dr. Levy to be able to say it is not a diary because of, you know, reasons X, Y, and Z, those are characteristics of what a diary is, and the prior art is lacking it. Dr. Levy could just say that the prior art does not disclose a diary and leave it at that. So to that extent the importance of whether -- having this concept of "unbounded" explicitly there is lessened but we definitely think it is useful for Dr. Levy to explain what it is when he explains the prior art doesn't disclose a diary, and this is one aspect of it. THE COURT: Well, I guess my concern, the Court did define "stream" to be a diary and that it includes past, present, and future. MR. SOOBERT: How could "future" be bounded? That is our point, Your Honor. 23 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 briefly? THE COURT: MR. RANDALL: Sure. Let's just say, for example, you have THE COURT: Well, I am saying -- well, maybe I am not following your point then because if -- I'm saying if diary includes past, present, and future, it would seem that diary -- and I'm not sure bounded or unbounded is the proper description; but if you are talking about the future, I don't see how it necessarily can have a limit to a diary. MR. SOOBERT: MR. RANDALL: Yeah, my -Your Honor, can I address the Court a diary, right, and the diary has 2010 -- 2008, '09, '10, '11, and '12 and then it is bound by the end of the book, correct? That has a past, it has a present, and it has a future. bounded, right? book is bounded. It stops. It is That diary, physical diary of the Maybe a system is bounded by the amount of Maybe a computer screen is somehow memory it has in it. bounded by the number of images it can hold at one time on the screen. It can still satisfy the claim elements if it has the past, present, future portions even if it is bounded. so that is not a limit -THE COURT: Isn't that just a fact question for the And jury to decide whether your prior art reference -- I thought maybe you were getting at a true claim construction issue, but 24 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 I am beginning to think it may just be more of an evidentiary issue that y'all are going to have to duke out with the jury. MR. RANDALL: Well, the claim construction issue that I am addressing that I think their expert is relying on, is that their expert is relying on a claim construction position that the stream and the diary specifically has to be unbounded. If it is not unbounded, then it doesn't satisfy the claim elements and, therefore, it distinguishes the art. The issue about whether or not a stream has to be unbounded is a claim construction issue, and he is going to sit there and argue to the jury that that diary has to be unbounded in order to classify some of the claim elements, and some art may be unbounded and doesn't satisfy it. position that that is a claim construction issue. It is our And, frankly, if it is unbounded, if it is bounded, I think it still satisfies the claim. MR. CARROLL: still what? MR. RANDALL: MR. CARROLL: MR. RANDALL: Is satisfies the claim limitations -Oh, I see. -- whether it is bounded or unbounded I didn't hear that. You think it as long as it has the elements of Your Honor's construction that there is a past, present, and future portion to it. If the electronic diary that is capable of handling documents and storage past, present, and future for the next two years, 25 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 would fall within the claim limits and just because it is only can take -- for future documents for the next two years, would still mean the prior art would invalidate or that it would infringe, it seems to me. THE COURT: MR. CARROLL: Anything further? Your Honor, at the expense of butting I mean, you told us They concede that in, I don't see what the fuss is about. it is a diary. Our man uses it as a diary. it really doesn't matter if it is bounded or unbounded, you pointed out it sounds like a fact issue. If it gets down to your needing to tell the jury definitionally what a diary is during the trial, you can do that. right, it is a fact issue. THE COURT: MR. STEIN: Anything further? One thing. The diary described in the It seems like you are patent is a diary in which new items are continually added. It is not the diary that Mr. Randall just mentioned. MR. SOOBERT: The one thing I would add on that, Your Honor, is also Mr. Stein mentioned that there was no disclosure of any diaries electronically in the prior art. In 1988 Mr. Landsdale, the professor that Mr. Randall mentioned, disclosed a paper -- a number of papers and had a commercial system which is in our invalidity -THE COURT: That will all go to the merits. I am just trying to figure out whether y'all have a claim scope 26 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 bounded? MR. RANDALL: THE COURT: Correct, correct. And so what is your -- and are you dispute that the Court needs to resolve by claim construction, so -MR. RANDALL: The only issue that we are concerned about is their expert arguing to the jury and the lawyers arguing to the jury that a claim limitation is that the diary has to be unbounded and, therefore, they distinguish the prior art. That is a claim limitation that they are importing into the claim, and we don't think it belongs there. THE COURT: You are saying it can be unbounded or saying that -- they are saying that it can be either bounded or unbounded under the claim limitation. has to be unbounded? MR. STEIN: I am saying, yes, that that is -- that Are you saying it is the diary that is described -- that is what the patent means when it uses the term "diary" because it is referring to a system where things are continuously added to the stream. It doesn't say things are continuously added, as well as future events, you know, coming in and people adding items to the stream. And, you know, part of the power of the invention is that it just doesn't stop on a particular day. This is not -- the concept isn't for today or this year and next year or 27 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 today and tomorrow. It is a system in which documents are continuously added, as actually recited in Claim 13 of the '227 patent which says that each item, you know, received by or generated by -- I believe those are the terms used in the claim -- the computer system is added to the stream. That -Not the claim itself indicates that that diary is unbounded. restricted in the manner proposed by Apple right now. THE COURT: next one then. Okay. All right. Let's move on to the "Timestamp to identify." Yes. We think that Dr. Levy is doing MR. SOOBERT: a similar thing here. Your Honor construed "timestamp to identify," a date and time value that uniquely identifies a document. So it is simply a date and time value that must be unique to identify that particular document. THE COURT: what happens? MR. SOOBERT: It is not unique. You need some kind But if you have the same date and time, of resolution or something else in the date and time value that would be very, very specific that is purely a date and time value. You need to carry out the decimals. You need to do something to -- under the construction to have the date and time value uniquely identify that document. THE COURT: So if you had 08-25-2010 and you had two documents, do you have a 0.1 and .2 on the end to uniquely identify it? 28 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 MR. SOOBERT: You would have to in order to have a date and time value that solely is uniquely identifying those documents, yes. THE COURT: So, in other words, you are saying that you can't have the same date and time without some additional unique identifier so you will know which document you are talking about? MR. SOOBERT: Right. The construction says is it is a date and time value that uniquely identifies a document. THE COURT: So are you saying under the construction you cannot have a 0.1 on it to identify it or you -- it would not infringe? MR. SOOBERT: What I am saying is that the -- if you have a system in which the date and time, for example, is of insufficient resolution -- just like the problem you posited, which is typical in conventional systems and an Apple system where you have -- and in windows a Unix system where the documents come in and are dated 8-25, you download some attachments all at the same time, say early in the morning and there is like five of them, those date stamps there in the conventional system as in the Apple system are not unique and do not identify that document uniquely. THE COURT: MR. STEIN: Response? Both parties' experts acknowledge that That is -- in the situation where the date and time itself does not 29 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 distinguish two data units, additional information must be used in order to distinguish those two units. And anyone skilled in the art would appreciate that that is something that must be done and is commonly done. And I understood the Court's claim construction decision to mean that the "timestamp to identify" doesn't require a date, time, plus additional information. If the date and time is enough, then that is -- then that is fine. So it doesn't require the narrower construction as you said, Your Honor said in the claim construction decision of requiring all three elements. Instead, it only required the broader construction proposed by Apple, which is it only requires a date and time. It doesn't exclude the possibility that additional information might be needed to break ties in the case that the date and time is the same and then, you know, both experts agree that that would be -- that that is needed, and one skilled in the art would know that that is something that would be needed in that situation. MR. CARROLL: Your Honor, again, at the expense of butting in with my friend here, we believe that -- and I am looking at your August 11th order, and this is significant to me. Maybe not to anybody else. But you say -- you talk about the parties' dispute and you say, what they say and what we say to construe to include time and date and you use the noun 30 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 "values," time and date values. information." Then you say "plus additional So you have identified the dispute as to whether, as Apple says, you can only look to time and date values or whether, as we say, you can add "additional information." What we think that our expert has done, and as Mr. Stein says what their expert agrees with that one skilled in the art would do, in the case of the tie breaker just like the Court wondered about, is not add any additional information but just give meaning to the value -- the word "values" of time and date. For instance, if you were to reconsider your motion to sever their counter-claim, we all know what you would do. We would have -- I forgot what the number of our case is, but whatever it is, Mirror Worlds v. Apple, whatever that case number is 123, and then we would have Mirror Worlds v. Apple 123A. We do it all of the time. We do it in Bate stamping. We do it all of the time to give the value to that piece of information. So we say that is all our man is doing because, as Mr. Stein pointed out, you know, it doesn't happen all the time; but from time to time when you have a tie-breaker, everybody knows, including their expert, that you have got to give an additional value component for time and date to make sense. 31 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 gotcha. THE COURT: MR. SOOBERT: Okay. Response? The They And, frankly, we think their argument is kind of a A couple of points, Your Honor. expert testimony, our expert did not agree with that. were asking our expert Dr. Feiner a number of hypotheticals about this very problem you have flagged, how in a conventional system you might break the tie. And obviously additional information would be needed in a conventional system. If we take a step back and look at the context of this invention, this was a fundamentally new operating system in which documents were organized and stored in a time-ordered sequence, so every document has its unique timestamp. And the timestamp has to have sufficient resolution, if you will, to uniquely identify that document and put it in a time-ordered sequence. That is their system. All right. THE COURT: And conventional -So are you saying in order for something to infringe their system, you would have to have a timeclock that went out to nanoseconds? MR. SOOBERT: I'm not saying nanoseconds, but sufficient resolution to distinguish between -THE COURT: MR. SOOBERT: What would that be? Is that seconds? It has got to be more than seconds. 32 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 THE COURT: MR. SOOBERT: Milliseconds? Maybe at least -- I don't know. It depends on the speed of your computer. to a thousand. THE COURT: It has got to be out Well, I am having a little trouble because the Court did conclude in the last sentence, the Court construes the term "timestamp to identify" to mean a date and time value that uniquely identifies each document. And it just seems like implicit in that construction would be if you have got a tie, there has got to be something there that is going to order it. MR. RANDALL: THE COURT: MR. RANDALL: Your Honor? Yes. There could be a number of ways to construct the system to make sure that each document that was stored in your time-ordered sequence has a unique date and timestamp. One of the ways you can do it is to say, look, we are going to have a cache or some sort of a memory device that makes sure that they are sequentially stamped and dated. could do that. There is ways that you could do it. And in their You fundamental system they said it has got to have a timestamp to identify it. to identify." They picked the claim language, the "timestamp I think you correctly construed it as this data and time value has to uniquely identify each document. 33 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. How you do that in order to accommodate their system, in order to accommodate their claim language, is up to them to describe in their spec. infringe it. It is up to whoever is going to The issue is that conventional systems that We existed long before this invention, didn't do it that way. don't do it. Prior art conventional systems didn't do it. There are ways it could be done. You can sequence them. You can say that you have got to apply a date and timestamp, and we are going to have some sort of a memory device or some sort of software that allows multiple documents to get out of the system to be loaded sequentially. But that is one of the problems that There are other problems that There are. That is why people they have with their system. they have with their system. didn't adopt it. But this is the claim language they chose. I think they have to live with You correctly construed it. it. THE COURT: MR. SOOBERT: Anything else with regard to Mr. Levy? Just a couple of quick points, Your There is one or two things that Dr. Levy has put into his, you know, report that is conclusory, it doesn't have any analysis at all. For example -- and we believe he shouldn't be permitted to testify about it. indirect infringement. And one of those examples is Apparently now Mirror Worlds is 34 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 contending that there is an indirect infringement claim here. Dr. Levy didn't opine on indirect infringement. any analysis of it. He didn't cite any evidence. He didn't do During his He goes, deposition he was asked, why didn't you do that? well, I wasn't ask to do an opinion on it, so I didn't do it. He was asked what he thought the standards are and what it is. He said I don't know what it is. We don't think it is appropriate now to allow him to come back and sort of backdoor some indirect infringement analysis without it being in the body of his report. THE COURT: MR. STEIN: always in the case. recently. Response? First of all, indirect infringement was It wasn't something that was just added Dr. Levy's report and -- well, his report contains numerous opinions regarding the factual predicates for indirect infringement. You know, for example, how the system actually is designed to operate and operates and how, you know, a user would use the system. All of those are factual predicates for indirect infringement. They are trying to shut us off from I guess arguing that users actually use the system; that the products that they sell in the manner that was intended they be used. Dr. Levy described how that system operates and how it was intended to be used, you know, as reflected in the materials produced by Apple. Those are all things that go to 35 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 right? MR. STEIN: Well, it is the system itself -- when indirect infringement. THE COURT: He should be able to testify -You may have the predicate there, but are you going to put up a claim chart that says that -- and he is going to express an opinion and check off that they are guilty of indirect infringement on claim such and such? MR. STEIN: I don't believe that that was the form that we had for the proposed verdict that he will check off that the system itself has these different elements in it. THE COURT: That would be direct infringement, you are talking about a method claim in some cases it is the user using a system sold by Apple, for example. So I think they may be -- I'm not sure where they are going with their indirect infringement. I mean, there is no doubt at all that there is direct infringement of all of the accused features here. I mean, Spotlight, Cover Flow, Time Machine -THE COURT: Well, if direct infringement is so clear and he didn't put indirect in his report, why do you need testimony on it? MR. STEIN: Well, I think they are trying to preclude him from testifying -- testifying that these different -- that these different elements are actually in the product because maybe their argument is at the end of the day that argument goes to indirect infringement. And, you know, 36 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 since he didn't specifically address the legal conclusion of indirect infringement, he should not be able to testify to the factual predicates for indirect infringement that are in his report. He should be able to testify with respect to what is in his report and what is in there are many factual predicates for indirect infringement. MR. SOOBERT: He can certainly testify, Your Honor, to direct infringement to the extent he put that in his report. He didn't address indirect infringement. He admitted he didn't. He didn't put anything in his report about what knowledge of what components are made or specially adapted for use, required for contributory infringement. He didn't provide any kind of facts that would express some intent or encouragement or aiding and abetting of the infringement or alleged infringement for inducement. None of these facts or, quote, so-called predicate facts are set forth anywhere in the report. And it is simply -- I mean, it is inappropriate for them to come back and say he is now going to testify to these things. not in his report. They are He He wasn't asked to provide an opinion. shouldn't be able to do that. THE COURT: MR. SOOBERT: source code. What is next? Just a couple -- a similar issue on I know Your Honor hears a lot about source code. We have a lot of products that are at issue in this case. 37 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 analysis? MR. SOOBERT: THE COURT: I'm sorry? You have a reference in there that he code. Apple has worked really diligently over a year producing thousands and thousands and hundreds of thousands of lines of code. We provided it to Dr. Levy. And in this case they actually looked at the source In fact, their source code expert spent 90-some days Okay. And nowhere in Dr. Levy's So looking at the source code. report is there a citation to not one line of source code. he doesn't -- instead he concludes or admits during his deposition, well, I didn't cite it, yeah, I didn't, I didn't do it, I didn't discuss any source code, I didn't analyze it. I don't think it is going to be helpful for the jury. think -THE COURT: MR. SOOBERT: THE COURT: All right. Okay. What about your products without What is next? So I did not provide an opinion on several of the accused products regarding the claims. And I think that what this is getting at is he offered opinions regarding the iPhone, iPods, iPad, iTunes, and Safari for Claims 16 through 19, 32, 34; but the joint pretrial drops the Apple TV and -- from the '427. so the question is, but the joint pretrial continues to maintain infringement claims as to 22, 25, 26, 29, and 37. And 38 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 So, as I understand it, there is some confusion as to what accused products and what claims are going to be at issue in this trial, so that is what I am -- I thought you had addressed that in one of your Dauberts, did you not? MR. SOOBERT: I did. And in this Levy report -- there has been a lot of products they have recently, you are correct, pulled back some of the products for some of the claims. In our motion for summary judgment of noninfringement -THE COURT: Is there anything you need me to help you with as far as resolving that, or do y'all have that worked out at this point? MR. SOOBERT: I believe we might need your assistance on the fact that he didn't address the iPhone, the iPods, iPad, and iTunes for the remaining '427 asserted claims to the extent those require a stream. MR. STEIN: He didn't address that. Well, he addressed infringement under each of the claims that we have identified in our pretrial. THE COURT: Well, he has offered opinions with regard to 16 through 19, 32, and 34 of the '427 is my understanding. But he did not offer opinions as to Claims 22, And I guess my question is, are you 25, 26, 29, and 37. abandoning those claims, because they are still listed -MR. STEIN: There are claims we are not pursuing. We are pursuing the claims that are identified in the joint 39 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 pretrial -THE COURT: Those are -- it is my understanding those that I just listed; 22, 25, 26, 29, and 37 are listed in the joint pretrial but that Levy does not express any opinions about those. Is that true? He may not express opinions regarding MR. STEIN: them with respect to specific products, but I believe those claims are still in the case with respect to other accused instrumentalities. THE COURT: Does that resolve it or not? What do you want the Court to do? Maybe I am misunderstanding whether there is even an issue here or not. MR. RANDALL: Your Honor, we moved for summary judgment on a number of claims indicating that they have no evidence and presented no evidence nor opinions as to infringement on certain claims as to certain products. We asked the Court to enter judgment on that of no infringement. In response I believe they said, okay, we will just pull them -- we will pull them back without prejudice to assert them later. Our view on that issue is we have gone through all of the discovery in the case, we do have a counter-claim of noninfringement, and we have asserted our counterclaim and said we don't infringe as to all products, all claims. But certainly as to those products and those claims 40 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 seeking? MR. RANDALL: Correct. to which they didn't provide any evidence of infringement nor any opinion of infringement, we are asking the Court to enter judgment in our favor of noninfringement. asking. THE COURT: Respond to that. Have you pulled back That is what we are some claims and said we are not going to assert these when confronted with their summary judgments? MR. STEIN: We didn't pull them back because of We pulled them back because their summary judgment motion. during the course of discovery, products described as -described as having the Spotlight, for example, feature like the iPhone -- of course, in discovery we learned there was a very watered-down version of Spotlight on the iPhone. So, you, know as Mr. Soobert alluded to, there has been a lot of discovery in this case, a lot of source code, a lot of depositions taken; and during the course of that, there were positions that we had at the beginning of the case with respect to infringement that we learned, you know, that we shouldn't pursue at trial here. claims. THE COURT: of noninfringement. I guess it is noninfringement is what you are Okay. But they have got a counterclaim So we pulled back those 41 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 THE COURT: Now, they have got a summary judgment motion for noninfringement as to the claims you have pulled back. Do you oppose that summary judgment? MR. STEIN: Well, I mean, our position is we just think it is unnecessary every time -THE COURT: You think it is unnecessary, but they So do you oppose it or not obviously think it is necessary. oppose it? case. MR. STEIN: opposing it. It is teed up. I mean, it is an issue in the I guess at the end of the day we are not But to me -Which one is that, and the Court will THE COURT: grant that one? Which one is that? I -- I -- I would like -- can I say one MR. STEIN: thing about it? now. To me it is just like any claim we pull back They can make the same argument for any claim we drop in I personally don't feel that it is appropriate to this case. grant summary judgment on a claim that is just not in the case. THE COURT: Well, you should have worked out a stipulation with them if that is how you wanted it to play out. They still have live pleadings and live motion on those. MR. SOOBERT: Your Honor, that is Docket No. 225, The claims are set forth Apple's motion for summary judgment. in our reply brief on Page 1. And, essentially, what they did 42 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 question? THE COURT: Okay. I tell you what, I'm going to is they just withdrew the claims and said they were moot. THE COURT: MR. STEIN: THE COURT: All right. Well -Any response to Apple's motion for summary judgment, Docket No. 225? MR. CARROLL: Your Honor, may I ask Mr. Stein a take about a five- or ten-minute recess and let y'all kind of regroup on that. We are getting really bogged down on a lot of details that, you know, if claims aren't in the case they need to go away. So see if we can get this focused down so we Be in recess. can get through here expeditiously. (Recess was taken.) THE COURT: All right. Okay. Please be seated. Have I Where are we as far as the claims? we got that all -- I will make this general observation: think we have got this issue going on of there are too many claims in the case, plaintiff and defendant have not gotten together and boiled it down and either agreed to withdraw claims without prejudice or agreeing to go forward on summary judgments. We need to get that resolved today. So where are we? MR. STEIN: We did talk about possibly having a There stipulation to withdraw certain claims with prejudice. 43 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 the break. is an important point, though, with respect to doing it the other way which would be with the summary judgment motion, is that Apple's summary judgment brief basically moves for summary judgment of all claims -THE COURT: Right. I understand that. It would have to be tailored to whatever claims there are, but I think a stipulation with prejudice, a dismissal with prejudice, y'all ought to be able to get together and just agree on that and get them out of the case. They don't have to worry about you coming back on them on those if you are not going to go forward with them. you have got, so -MR. STEIN: MR. CARROLL: Right. Your Honor, we talked about this at You don't want to go forward on everything We are dead on with exactly what you said for the ones in this Motion 224. MR. SOOBERT: MR. CARROLL: 225. 225. We concede we are not going What Mr. Stein has forward, with prejudice, for those. pointed out and what the Court knows is we don't want that to bleed over into the rest of our case. MR. STEIN: A little clarification. Again, their motion is broader than what we are willing -THE COURT: I understand that. What I want to see Monday morning -- y'all get together after the session today. 44 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 you, sir. THE COURT: Then we will know what we are trying. Sit down, plaintiff take your list of claims, you have got yours that you oppose. Y'all go through and decide what you are going to go to trial on, everything else gets dismissed with prejudice, and there will be a stipulation filed by 5:00 o'clock Monday. Okay? We will do that, Your Honor, thank MR. CARROLL: And commensurate with that, how many of these summary judgments of Apple's will that resolve? what you stipulate to, right? MR. RANDALL: Yeah, Your Honor. There is one issue I guess it depends on that I can point out pretty quick on this issue that we are discussing right now. THE COURT: MR. RANDALL: All right. The issue is that we have presented a motion for summary judgment saying they don't have any evidence that the iPhone, iPad, or iPod have the required stream that is necessary for all claims in all of their patents. have it. So there is only one argument they make. That is All right. And they have admitted that. They don't what the sticking point of the stipulation is going to be, and I want to advise the Court of that. The sticking point is that they now claim is that there are only a few of these 45 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 claims that actually don't require a stream. So they don't want to stipulate to noninfringement with prejudice on all of their patents against the iPhone, iPod, and iPad. Now, the problem with that is that when they were fighting, you may recall, when Apple moved for summary judgment of indefiniteness and you granted that on some of the claims, their expert filed a report. And in order to try to avoid an indefiniteness summary judgment motion, their expert filed a report and he admitted that the very claims that they now say don't have a stream and, therefore, can preclude summary judgment, he admitted that they had a stream. He said that at Paragraphs 297, 298, 299, 300, and 301 of his report. He said it -- and I could read it in the record. But he said that a stream is required in Claim 8, Claim 16 in order to avoid summary judgment and invalidity. THE COURT: That ought to be good for cross-examination, shouldn't it? MR. RANDALL: THE COURT: MR. RANDALL: Yeah, you're right, Your Honor. What's that? You're correct, if it were in front of So the only issue is -- Your Honor on claim construction. there are two issues. One, they don't have evidence of a stream, which means that all claims that require a stream should be dismissed with prejudice on summary judgment or a stipulation. 46 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 briefing. me? that? The other claims that they are contesting that don't require a stream, that is just a straight claim construction issue. We believe that these other claims require a stream. We believe their expert admitted it. THE COURT: All right. Let me ask you to respond to Has he teed it up properly that in -- generally speaking, you are going to be dismissing with prejudice by stipulation all that require a stream, and you are contending now that some of the claims don't require a stream? MR. STEIN: With respect to those particular products he mentioned, yes. THE COURT: Okay. All right. And they are saying that that finite group now that is left, that as a claim construction issue, they do require a stream. don't require a stream. MR. STEIN: THE COURT: Well -Is there any briefing on that yet before You say they I guess it is in your summary judgment, right? MR. RANDALL: It is. But that is the sole issue to eliminate from this case the iPod, iPhone, and iPad completely. THE COURT: MR. STEIN: All right. I believe it was the subject of Those claims do not recite a stream; whereas, the 47 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 other claims do. It is as simple as that. All right. Okay. Direct me to your THE COURT: summary judgment then that deals with those that they are contending do not involve a stream and you contend they do. MR. RANDALL: Okay. That, Your Honor, is addressed at Docket No. 225, which is our motion for summary judgment. And we addressed it at Page 3 of our reply brief. And I actually have right here -- and I could read his statements, their expert's statements, if I could -- it will be brief -what he said in his expert report about whether those claims require a stream. THE COURT: MR. RANDALL: Well -Or, Your Honor, if it would please the Court, we could file by tomorrow or the next day a very short, less than five-page brief, identifying why those claims that they believe don't require a stream require a stream. could oppose it -THE COURT: are talking about? MR. RANDALL: Yes, Your Honor. So, again, the Can somebody list for me what claims we They claims that they believe do not require a stream and the only claims, are the '427 patent, Independent Claim 8 and Dependent Claims 9 and 10, Independent Claim 16, and Dependent Claims 17 through 19, Independent Claim 32, and Dependent Claims 33 through 36. The only other claims in all of the patents that 48 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 they believe don't require a stream are in the '313 patent, Independent Claim 9 and Dependent Claim 10. And we believe that their expert has admitted that those claims -- we believe, properly, those claims require a stream. THE COURT: Okay. Do you agree with the numbers that he just listed or do you even know? MR. STEIN: THE COURT: I don't know. All right. What I want y'all to do is meet, confer, file by noon on Monday a joint order stipulating to noninfringement of the ones that you agree involve a stream, dismissing those with prejudice. I will enter that. Also, by noon on Monday file a joint submission -or let me just say plaintiff file a brief and defendant file a brief dealing with the other claims; that there is disagreement as to whether they involve a stream or not with less than 12 pages per side. The Court will take a look at your briefing and, that will be in the form of a summary judgment and reply. I want them both filed at the same time. already briefed this in other briefs. Y'all have You are just kind of And then shrinking it down so the Court can focus on that. Apple is saying if the Court agrees with Apple, then that takes the iPad, iPhone, and those other instrumentalities out of the case. MR. RANDALL: Yes, Your Honor. 49 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 together. Daubert. THE COURT: MR. STEIN: THE COURT: MR. STEIN: THE COURT: Does the plaintiff agree with that? Yes. Huh? Yes. Okay. If that goes -- if that were to go out of the case, what is left? MR. STEIN: Apple's Mac computers -- there is a number of other instrumentalities. THE COURT: you a ruling on that. Now, let's get back to -- we have been through the I will get you a ruling on the Daubert hopefully by Okay. All right. And I will try to get the early part of next week. Anything else on the Daubert? I have got your briefing on invalidity, scope, waiver, secondary considerations. Any further argument? No, Your Honor. Okay. All right. Let's -- MR. SOOBERT: THE COURT: MR. SOOBERT: THE COURT: I'm sorry, not on Dr. Levy. Go to Bratic and Ugone. Let's do those Give it your best shot. (This portion of the transcript was filed under Seal. Motion - Docket No. 236.) THE COURT: Okay. Thank you. All right. I will take a look at Ugone's just on the papers. 50 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 Okay. MR. RANDALL: Your Honor, we would like to argue the Let's see where that leaves us. Are there any other summary judgments that either side wants to argue -MR. RANDALL: THE COURT: Yes, Your Honor. -- versus submitting on the papers? motion for summary judgment of noninfringement, which I believe is Docket No. 225. THE COURT: MR. RANDALL: Okay. And we have selected, Your Honor, certain features that form the core of their alleged inventions and run through nearly all of the claims. The first feature that Apple's products do not practice is the required stream that we discussed earlier. We certainly discussed that iPod, iPad, and iPhone do not have the required stream; and they have now admitted that after full discovery. The Mac OSX operating systems also do not practice the required stream. They simply don't have streams with a past, present, and future portion, specifically, the future portion. We simply don't have that. We don't organize our documents that way. We did it the old-fashioned way, which is by hierarchies and folders and everything else they were trying to avoid. In response to our motion on that issue, Your Honor, 51 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 they only point to really one issue. And they say, well, all right, the system as a whole, the operating system as a whole does not satisfy that stream limitation, period. that is uncontested I believe. And that is I don't believe they have any evidence that the overall system, the overall operating system satisfies the stream limitation. What they rely on in their opposition to our motion for summary judgment is one application, this iCal or calendar application. And they say that in this calendar application, that calendar application exclusively, separate from the entire system, separate from the other documents, that application allows you to store due dates or -- to-do items or due dates. That simply -- in that application those dates don't transform the entire Mac operating system into a system that satisfies the stream-based operating system that is required by the claims. One of the reasons why is because they, Mirror Worlds, in the prosecution of this patent, distinguished their claims from applications that only -- stored dates. So, for instance, in the prosecution they distinguished -- and this is in our papers, Your Honor -- they distinguished prior art calendar systems on this very point. They claimed that the prior art calendar systems only stored certain dates with respect to -- in those applications, and that was patentably distinct from their claims. 52 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 That is, at best, what they can argue with respect to this one application. The other -- and that, by the way, the stream limitation runs through all claims in this case. The second basis for summary judgment, Your Honor -THE COURT: That is what you are going to be briefing for me on Monday, right, the stream application whether it runs through all of the claims or not? does. They say it doesn't. MR. RANDALL: Well, that is right. And that is -You say it that only relates to the products that we mentioned earlier, the iPod, iPad, and iPhone. So you asked Counsel a good If those products are question, which is what is left, right? out of the case, what is -- completely, which we believe they should be -- what is left is they also accuse the Apple operating systems of infringement. And they claim, therefore, our argument -- this argument on summary judgment of noninfringement is that the operating systems, in addition to those other products, that the operating systems of Apple do not satisfy the stream limitation. They don't satisfy the stream limitation because we simply don't organize documents in streams pursuant to your construction with respect to future date portions. THE COURT: We don't do that. You are saying the only place that they argue that it does is in the calendar application. MR. RANDALL: That's right. We don't think that 53 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 case. that satisfies the limitations, but let's just say for a moment that it does. They say it does. It doesn't satisfy the obligation, but it doesn't transform the entire operating system into an infringing system. They have already distinguished in the prosecution history, calendar applications that store future dates. in the prosecution. They distinguish that So they can't come now and say Apple has But a huge operating system, albeit it doesn't have a stream. this application over here that stores to-do dates by itself, application specific, somehow transforms the entire system into a stream-based system that satisfies a claim. it. That would eliminate all of the products from this And that is the only thing they come up with in terms Can't do of their argument. THE COURT: MR. STEIN: Okay. Response? My response is that we disagree with Our argument basically everything that Mr. Randall just said. with respect to the stream is that there is something within Apple's operating system called the Spotlight Store. And our argument is that is a stream, and it also meets main stream limitation of the claims. And the Spotlight Store also stores information about these calendar entries that Mr. Randall just mentioned. So it is in a centralized database. It is not limited just to the iCal program. 54 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 And our expert explained that in his opinion, and I think it is clearly -- to the extent they dispute that the Spotlight Store is a stream is an issue of fact and should be heard by the jury. THE COURT: Okay. Thank you. Any further response? MR. RANDALL: On that issue, no. There are other grounds for noninfringement, Your Honor. THE COURT: MR. RANDALL: THE COURT: MR. RANDALL: Okay. I believe I have made my point. Go ahead. The other issue is that the claims -- Apple's products don't infringe the claims of the '227 patent. When I say Apple's products, I really believe it is the operating systems because we don't use time value -- date and time value that uniquely identifies each document. And that runs through the claims -- all of the claims of the '227, Your Honor. So with respect to all of the claims of the '227 and because we don't satisfy the timestamp requirement that Your Honor construed as a date and time value that uniquely identifies each document. Now, we talked about this earlier. If you recall Counsel admitted and I think he has to admit, that all conventional systems, they use other things to identify documents. 55 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 true. And Your Honor pinpointed this issue, too. That is true. Prior art systems use a host of That is information to uniquely identify documents, conventional systems do. systems. But we are not talking about conventional We are talking about their patent, their invention, They said they came up with a unique, brand new their patent. operating system, and that unique, brand new operating system has to organize all documents on the system in a time-ordered sequence. Now, they could have claimed in their patent a lot of different ways how to time order these documents in a sequence, and they did it based on a timestamp, and they said it is a "timestamp to identify," which has been construed as a date and time value that uniquely identifies each document. We don't have a timestamp that uniquely identifies each document. number. We simply don't. We use a document ID We organize and store our documents by a unique document ID number. So what they are saying is, well, okay, but we can find documents, unique documents on your system by using the unique document ID number and the date and timestamp. you can find it using the unique ID number, period. Well, I mean that is like saying if you have a DNA lab and the DNA -- the exact DNA uniquely identifies individuals, okay, that is what you need to identify individuals. They go, okay, but we are 56 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 also using a birth date, you know, in this database. Well, the birth date is not going to uniquely identify millions and millions of individuals. Just like a typical date in a metadata in conventional operating systems is not going to uniquely identify a document. It is the unique document ID in the So, Apple system which uniquely identifies a document. therefore, under their system under the claims they wrote, we simply don't have that limitation. They can't somehow transform it by saying, well, no, we can find your documents by using the unique document ID, and we throw in a date. Well, the date isn't doing the job. It is not satisfying the limitation of uniquely identifying a document. THE COURT: Thank you. I want to ask the plaintiff does -- do you agree with Apple that their documents are organized based on their unique document ID number? MR. STEIN: No. I think Apple's Counsel is injecting the document ID incorrectly into the discussion or the explanation that our expert Dr. Levy gave of how their system provides a time-ordered stream of documents. Dr. Levy's report explains in detail how, in fact, Apple does that, how, you know, documents are identified within the -this time-ordered stream by date and time. 57 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 And then if the date and time for two documents within the stream is the same, it uses something called a CFUUID, not the document ID as the thing to order those -- you know, to break the tie. So it is something specific that -- an additional piece of information that Apple specifically uses in that situation to order the documents uniquely within the stream and identify the documents within the stream. With regard to document ID's in their system -- I wouldn't say that they are -- there is all sorts of identifiers within Apple's operating system, you know, they have to identify for other purposes -- that doesn't mean they don't infringe the patent and have the features that are claimed in the patent. detail. And Dr. Levy explains his position in To the extent they dispute it, again, I believe that That should be decided by the jury. Thank you. Briefly, Your Honor. This limitation, In is a fact issue. THE COURT: MR. RANDALL: this timestamp runs through all claims of the '227 patent. an Apple system you can do a search for author. metadata. It is in the You can do a search for author and you will come up It depends on how many authored You can with -- I don't know. documents. You can come up with a lot of documents. run a search for date on documents, and you come up with a lot of documents, too. It simply doesn't uniquely identify the document to satisfy the claim element. 58 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 The next ground for summary judgment of noninfringement, Your Honor, is that Apple's products do not have the required receding, foreshortened stack. in -- it doesn't appear in the '227. of the '427, the '313, and '999. That appears It appears in the claims And that issue, Your Honor, relates to whether or not the representations of these documents are -- gets smaller in the stack. And this is the visual representations of the documents on the screen. Do those documents -- are those So do documents displayed in a receding, foreshortened stack? they recede back into the screen, and do they get shorter in size as they move back in the screen? We have demonstrated in our brief, Your Honor, we provided the Court the source code representation showing that our images of our Cover Flow -- and that is the image they are referring to, are all on the same plane right across. So each album cover, if you will, is on the same plane and is the same size. So it is not foreshortened, and it doesn't go back in It is not receding. the screen. For them to somehow say -- their argument is, it has got a perspective nature to it, and it has got some shading and things like that. patent litigation. How is anyone to know what type of shading falls within the scope of the claims? What type of shading falls Well, that simply doesn't cut it for 59 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 outside? What perspective is inside the claims? What perspective is outside? discussion about this. We are going to get in a mess in the But the clear language in the claim, Does it recede back is it a receding, foreshortened stack? into the screen? And does it -- are the document images And the answer is, no. shorter as it goes back? They also when they prove that, they also distinguished in the prosecution history -- they distinguished the Cowart reference and argued that Cowart's display documents did not get smaller toward the bottom of the stack. So they argued in Cowart the windows do not get smaller to the bottom of the stack. This important distinction highlights a That is what we don't do. That is key aspect of the streams. why we don't infringe those claims that require the receding, foreshortened stack in '427, '313 and '999 patents. THE COURT: Response? MR. STEIN: Mirror Worlds' expert Dr. Levy Thank you. identified -- I'm not looking right now, but I think it is eight, maybe a dozen different aspects of Apple's Cover Flow display that embodied the receding, foreshortened stack limitation. To recede -- and, again, that is the limitation that the parties had brought up during claim construction, and we believe that it is -- that a jury is capable of understanding that limitation. And the Court agreed. 60 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 Apple had proposed that it was limited to a situation in which documents get -- that the documents get smaller as they move further away from the user. And that construction was not adopted by the Court because it is too limited, and there are other aspects of what was meant by the receding, foreshortened stack limitation that don't require the individual items within the stack to get smaller. The bottom line is that you look at the Cover Flow display and it has striking similarities to the display that is shown in Figure 1 of the patent. And, you know, even picking it apart there are aspects of it where the items are, in fact, getting smaller under Apple's construction. are -- the first item in the stack is -- it starts in embodiment -- or it starts in figures in Apple's Cover Flow display is larger than other ones. They have this effect They where if you look at the stack as a whole the shading on the bottom fades out so it does look like the images are getting smaller. It is clearly -- the shading clearly gives an effect of the items getting further away from the viewer, the user of the computer. Apple's expert even acknowledged that there He were aspects of foreshortening in the Cover Flow display. discounted them as they didn't count according to him because they don't support Apple's noninfringement position, but he acknowledged that there are aspects of foreshortening there. 61 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 I think at the end of the day, once again, is we have expert testimony -- or we have an expert who opined this element is met. Apple disagrees, but, again, it is an issue of fact for the jury. THE COURT: MR. RANDALL: Okay. Your Honor, very brief. The limitation of receding, foreshortened stack, and their expert ignores -- what he says, he says things around that issue. But he doesn't directly and squarely address it. He says, That well, the covers -- the cover albums overlap each other. doesn't satisfy the claim element. larger and closer to the viewer. satisfy it. He says, well, they appear They appear. That doesn't He says, well, some are darker than others, it creates this perspective effect. But the point is it just -- in concrete -- whether we satisfy the limitation or not, we show on Page 13 of our brief exactly what the source code requires of the presentation of the images. And it requires that our images are on the same plane so they don't recede, and they are the same size so they are not foreshortened and, therefore, we don't infringe. THE COURT: MR. RANDALL: THE COURT: Yes? Okay. What else? The next and last issue, Your Honor -Just a moment. 62 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 MR. DIBERNARDO: last point. If I may, just one comment on the But the view This is pointed out in our briefs. shown at Page 13 of Apple's brief, which Counsel just referred to, the one view, our expert Dr. Levy shows another view. And it is Exhibit 5 to his declaration, which clearly shows images of different sizes. THE COURT: MR. RANDALL: Okay. Thank you. Your Honor, the last issue that is the subject of our summary judgment of noninfringement is that the iPhone, iPods, and iPad do not display a cursor or pointer, which is required by the claims. That is required by all of the '427, '313 and '999 claims, I believe. And with respect to that element, the claim element requires the display of a cursor or pointer, and our devices, which I just went through, the iPhone -- iPhone, iPod, and iPad do not display a cursor or pointer. is, well, it creates an interface. right. And their argument These are touch pads, So at least a number of those are. And so there is not a cursor, and there is not a pointer that is displayed. Now their expert says a whole host of things, but he doesn't say there is a cursor or pointer displayed on those products. He says, well, some of it is in But we simply interfacing with the touch screen and so forth. don't display a cursor or pointer. And what they try to claim is somehow by the 63 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 doctrine of equivalents you don't need to. And, again, we have pointed out in our brief that that vitiates the claim element if you say simply that the requirement of displaying a cursor or pointer somehow the equivalent is not displaying a cursor or pointer. Your Honor. THE COURT: MR. STEIN: Okay. Mirror Worlds's expert Dr. Levy That simply doesn't satisfy the case law, explained in detail with respect to the last point, how the accused products infringe under the doctrine of equivalents. Actually, I don't believe that Apple's expert even disputed his argument, you know, to that effect. But in any event, even if Apple's expert did, there is still an issue of fact there for the jury as to whether or not there is infringement under the doctrine of equivalents. Apple is basically picking apart with one term -one or two words in the claim that the claim term itself read as a whole is met under -- certainly under the doctrine of equivalents by the accused products. And we believe there is an issue of fact precluding summary judgment here. MR. RANDALL: THE COURT: Nothing further. Okay. All right. Any other motions either side wants to bring before the Court for pretrial? MR. RANDALL: THE COURT: Your Honor -All right. 64 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 number? MR. RANDALL: THE COURT: MR. RANDALL: infringement issue. will. I'm sorry. Go ahead. There is one. The no willful If you would like to hear argument, I If you are satisfied based on -THE COURT: 226. MR. RANDALL: Yes, Your Honor, sorry about that. Very briefly. What is the docket Your Honor, Apple is moving for summary judgment that there is no willful infringement in this case, and it shouldn't be presented to the jury under the Seagate standard. And I recognize the decision that you made in the Microsoft case. Let me distinguish that matter. These are We not simply creative defenses that we have come up with. have absolutely clear defenses to infringement. And the infringement defenses that we have, based on our products, would be obvious to anyone looking at our products and looking at the claims. These aren't creative in any way. I don't take any credit for that because they are not creative. It goes to the core of their patent. We simply don't organize documents the way they claim, and they claim that they have this brand new operating system that organizes documents in a new way and displays them in a new way. Well, number one, we do it the same way we have done 65 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 it all along. don't. We don't satisfy the claim elements. We simply We don't organize the documents the way they claim We also don't display the documents And on top of that -- this new system operates. in the same way that their claims say. we haven't seen it -- but it is in our papers on summary judgment of invalidity, there are a host of other references that actually try to organize the documents in time-ordered sequence, and there are other strikingly similar references in prior art that have nearly identical presentation of documents, unlike Apple's but nearly identical to the patent. So simply looking at their allegedly revolutionary way of organizing documents, we don't do it that way. that would be objectively clear to anyone. And The same thing with the presentation of documents, it is strikingly similar what is out there in the prior art, Your Honor. With respect to our inequitable conduct arguments, you know, they clearly -- and you can read this from the prosecution history, if you read the prosecution history of the '227 the examiner came up and said, wait a minute, I have looked at your application, I went to the website, I have looked, I have seen information about Gelertner. an inventor. What is going on there? He should be Then all of a sudden, okay, we will do an amendment. So there is a host of inequitable conduct issues, which we have moved for summary judgment on, which I don't want to -- 66 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 THE COURT: MR. RANDALL: Okay. Anything further? But all of these are objectively obvious from reading the file history and looking at our products, looking at the patents. THE COURT: Okay. Thank you. Anything further? MR. STEIN: THE COURT: MR. STEIN: Do you want me to respond? That is up to you. I can respond briefly. The i4i case that Mr. Randall mentioned states that you assess objective reasonableness at the time that the infringement occurred and not that a company basically, you know, can see a patent, ignore it, you know, violate it, and then years later -- or, you know, sometime later, whenever it is, when they are faced with an infringement suit, come along and come up with something and use that as a defense against willful infringement. At the time they learned of the patent, they didn't know about of any of these defenses. They never mentioned at the time that they had meetings with Mirror Worlds Technologies that they thought these patents were invalid. Instead, all they did was express interest in the technology and continue to follow the technology throughout the development of the accused products. THE COURT: Okay. All right. Thank you. 67 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 Any further motions? Y'all get together on your motions in limine, and I will -- any that would have to be resolved prior to jury selection, I will take up the morning before jury selection. What about Apple's motion to limit the number of claims asserted? Are we going to get this thing boiled down to something manageable? MR. STEIN: THE COURT: We -It just seems like the plaintiff is Are you really shot-gunning this thing at this point, to me. going to be able to get it focused down? MR. STEIN: We have narrowed the claims down and On our side they have -- have given Apple a reduced set. THE COURT: MR. STEIN: If you would, you might want to stand. I'm sorry. On our side they have -- I don't know how many dozens of prior art references to try -THE COURT: references down? MR. RANDALL: Your Honor, if they would -- yes, the Are you going to get your prior art answer is if they limit their claims, we limit our prior art reference and we will know what we are shooting at. THE COURT: Y'all meet and confer. Submit me a stipulation as to what you have limited it to by noon on Monday. All right. Okay. Once I get those, I will enter an 68 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 recess. order regarding trial times, and I would encourage both sides to really work hard at limiting that. of everywhere, it seems to me. We will -- jury selection is on the 7th with trial to begin on the 20th. But I had three cases, one of them The This case is just kind has -- they decided to just appeal, so it has gone away. other one will be ahead of y'all, the SHURflo case. a lower number. So it is I am having a pretrial on it on next Tuesday. I will have a better idea on it, so that is all I can tell you regarding times right now. MR. RANDALL: MR. CARROLL: Thank you, Your Honor. Will they -- I am in that one, too, so will the SHURflo case get the jury first -THE COURT: That is my thinking, but I am not going to commit myself to that until after I have their pretrial and sort of see which case -MR. CARROLL: I'm going to ask the question you know is coming, can we get the list before the 7th? THE COURT: Okay. No. Anything further? No, Your Honor, thank you. All right. Very well. We will be in MR. RANDALL: THE COURT: Oh, I forgot to ask y'all. Be seated. Where are you on mediation with this case? 69 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 /s/ Shea Sloan SHEA SLOAN, CSR, RPR OFFICIAL COURT REPORTER STATE OF TEXAS NO. 3081 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. C E R T I F I C A T I O N MR. RANDALL: Your Honor, we met with Mr. Patterson, Then we met with him about a while back we met with him. three weeks ago or so. night as well. And then he just contacted me last So we are in contact with him. to stay on top of it. He says he is going And We are miles apart on that issue. I think he is going to make all efforts he can make, but there are parties still a long ways apart. MR. CARROLL: court today, Your Honor. THE COURT: I would encourage y'all to make your I owe him a call after we get out of best efforts to get this resolved. MR. CARROLL: Thank you, Your Honor. (Hearing concluded.)

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