Mirror Worlds, LLC v. Apple, Inc.

Filing 428

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Voir Dire Proceedings held on 9/7/10 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 VOIR DIRE EXAMINATION 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 12:30 p.m. September 7, 2010 Doc. 428 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 today. Randall. please. THE CLERK: Court calls Case No. 6:08cv88 Mirror P R O C E E D I N G S (Call To Order Of The Court.) (Jury Panel In The Courtroom.) THE COURT: All right. Please be seated. Ms. Ferguson, if you will call the case, Worlds, LLC v. Apple, Inc. THE COURT: MR. CARROLL: Announcements? Good afternoon, Your Honor. Mirror Worlds is here and ready. THE COURT: MR. RANDALL: Thank you. Good afternoon, Your Honor. Jeff Apple is ready as well. THE COURT: All right. Very good. Thank you. Good morning, Ladies and Gentlemen of the Jury, welcome to jury service in the Eastern District of Texas. I am United States District Judge Leonard Davis. This is my Court Administrator, Ms. Rosa Ferguson; Court Reporter, Ms. Shea Sloan; and Law Clerk, Kori Anne Bagrowski. about to begin the trial of a civil case here today. Let me first thank you for your jury service here I know some of you may consider it a burden to be But I also hope that you will We live in a world today We are here, and I understand that. consider it a privilege to be here. 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 where every night on the news we see violence all around the world because people cannot resolve their disputes any other way. We are fortunate here in the United States to have a Constitution that guarantees to every citizen of the United States the right to a trial by jury. And that is how we So you are part of resolve our disputes here in this country. that process today. And I want to commend you for it, I want to thank you for your service, and I do hope that you will consider it a small contribution that you can make as part of the privilege of living in this great country of ours. This is a civil case where the plaintiffs accuse the defendants of infringing its patents. You have heard a little bit about our patent system by the video that you have seen downstairs today. I will have much more to say about this case, as will the parties and the lawyers, as the case evolves. But for now I wanted you to just have that basic You will hear more understanding this is a patent dispute. about it later. Now, this case is scheduled to start trial on September 20th. That is two weeks from today. I anticipate that the presentation of the case will take approximately five days, so we will start with the beginning of the actual trial. We are going to do jury selection today, come back on the 20th, and then complete the trial that week. 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 Now, I do need to tell you, and those of you who are selected on the jury I will remind you of this later, right now we are setting it for the 20th. There is another case ahead of it, so if that case does not resolve itself, this case might go -- begin the week following the 20th, which would be the 27th. So it would go either one of those two weeks, and I just give you that information for your planning purposes. Right now we are beginning the first stage of the trial, which is what we call Voir Dire Examination. This is where I and the attorneys will be asking you some questions to help us evaluate you as potential jurors in this case. After we have completed this process, which will take about an hour, each side is then allowed a certain number of juror strikes; and the remaining eight jurors, who have not been stricken, will be the jury that will hear this case. others will go home. The eight that are chosen will come The back, as indicated, to hear the case. When they come back, we will begin the trial of the case, which will consist first of opening statements by the attorneys as to what they expect the evidence will show. Then you will have several days of hearing testimony and exhibits offered into evidence, the evidentiary phase of the case. Then you will hear -- I will present to you a Court's charge, which will instruct you on the law that you 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 are to follow in deciding this case. Then, finally, you will hear the closing arguments of the attorneys as to what they believe your verdict should be in this case. So that is what will be happening today and will be happening during the trial. After the closing arguments, you then would retire to the jury room to consider your verdict. just doing Voir Dire. The Voir Dire is, again, to enable the Court to evaluate each of you as prospective jurors. "Voir dire" is a But today we are Latin phrase which means to speak the truth, which I know each of you will do as you answer the questions that are asked of you today. Please listen carefully to the questions that are ask and don't be timid about speaking up if they should apply to you. It is very important, if you have any doubt in your mind whether a question applies to you, go ahead and raise your hand. There are no right or wrong answers. Nobody is trying to pry. It is just a matter of evaluating you and your qualifications as jurors. There are some people that are suited to be on jurors on one particular type of case, but maybe not another. So that is all we will be doing. informal process. It is going to be a fairly I think you will find it interesting. When you are called upon to answer a question, I 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 Texas. read. THE COURT: Next? MS. BREWTON: Glenda Brewton. I'm from Bullard, Okay. Thank you very much. would ask that you please stand and state your name. microphone will be provided to you when you speak. A State your name so that the Court Reporter can take down who is speaking because we will have a number of different people speaking. To help you break the ice here this morning and get you used to getting up on your feet and speaking, I'm going to start with Juror No. 1, Ms. Gross. I will ask you to please stand, give us your name, where you are from, and what your favorite thing to do in your spare time is. MS. GROSS: Judith Gross from Tyler, Texas, and I My favorite thing to do is just be with my grandchildren. THE COURT: All right. Mark Morrison, Tyler, Texas. I spend MR. MORRISON: time with my family. THE COURT: Thank you, sir. Steven Carroll, Longview, Texas. I MR. S. CARROLL: hunt wild hogs. THE COURT: Did you say you hunt wild hogs? Yes, sir. MR. S. CARROLL: THE COURT: I heard something earlier this morning 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 about a hog rodeo or something. that? MR. S. CARROLL: THE COURT: Okay. No. All right. Vanessa Richardson. I'm from Do you know anything about MS. RICHARDSON: Troup, Texas, and I like to do craft work. THE COURT: MS. FERRELL: Okay. Kimberley Ferrell. I'm from Mabank, and I like to spend my time outside with my friends and family. THE COURT: MS. DOZIER: Thank you. Mildred Ann Dozier from Tyler, Texas. I like to spend time with my grandchildren. MR. FREEMAN: Cascey Freeman from Overton, Texas. I like to spend time with my three kids. MR. HOLCOMB: Ronald Holcomb from LaRue, Texas. I like to walk through the woods with the dogs. THE COURT: MS. MOSELEY: Tyler, Texas. Okay. My name is Kathy Moseley. I'm from In my spare time -- I don't have much -- but I like to do yardwork. THE COURT: MS. MOORE: Okay. Thank you. I Margarrita Moore from Tool, Texas. just like to stay busy roaming around the house. THE COURT: Okay. Thank you. 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 golf. MS. WILLIAMS: My name is Patricia Williams. I'm Texas. cooking? MR. DAY: Gary Day; Canton, Texas. Love to play MR. GEORGE: James George of Lindale, Texas. I like to travel with my wife when she is not teaching at John Tyler. MS. TILL: Beverly Till. I'm from Palestine, Texas. I just like working in the yard. THE COURT: MR. FLOYD: Okay. Gerald Floyd from Eustace, Texas. I enjoy spending time with my great grandchildren. THE COURT: MS. BUSSELL: Okay. Ida Bussell from Tyler, Texas. And I enjoy fishing with my four-year-old grandaughter. THE COURT: Okay. Thank you. MS. CHANDLER: My name is Frankie Chandler from Van, I love my grandchildren, to play with them; and from Lake Striker out of Henderson, and I love to travel. THE COURT: MR. FOSTER: Emory, Texas. sports. THE COURT: Thank you, sir. Mary Hartmann from Palestine, Texas. Thank you. My name is Mike Foster. I'm from And I like to go watch my grandkids play MS. HARTMANN: 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 exercise. I like to volunteer at the school. THE COURT: MS. GUEDRY: Thank you. Alicia Guedry from Longview, Texas. I like to exercise and shop. THE COURT: Thank you. I thought shopping was My wife tells me it is. MS. FULLER: My name is Maria Fuller. I'm from Longview, Texas. And I like to travel. Thank you, Ms. Fuller. Forrest Tatum from Palestine, Texas. I THE COURT: MR. TATUM: like to hunt and fish and spend time with my dogs. THE COURT: All right. Thank you, Mr. Tatum. Very good. Now, I am going to ask you a question in a moment, and I want you to listen very carefully. What I am going to do is ask the attorneys for both sides to introduce themselves, their client, their co-Counsel, and any witnesses that they will be calling to testify in this case that are from the East Texas area. The reason I want you to listen very carefully to that is because after they make those introductions, I am then going to ask you if you know any of those people, have been represented by any of those lawyers, or have any connection with them or anybody in your family has any connection with any of these people that they may introduce to you. The reason for that is to find out whether you know 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 please. any of these folks from -- previously from outside of court. So, first, the Court will call on Mr. Carroll to introduce his folks. MR. CARROLL: Thank you, Your Honor, if the Court I Ladies and Gentlemen, my name is Otis Carroll. I am representing the plaintiff, the live here in Tyler. patent owner in this lawsuit, and the inventor; and the inventor is here with us from New Haven, Connecticut, Dr. David Gelernter. David, would you stand, please? And David's wife Jane is out here in the courtroom. Jane, would you stand, please? They are from New Haven, Connecticut. Thank you. With us -- or with me also is Joe Diamante, Ken, Stein, and Ian DiBernardo. And they are all lawyers, the real And then We don't lawyers, who know stuff; and they are from New York. our client lawyer is Steven Segaloff from New York. have any local witnesses that I am aware of, Your Honor. THE COURT: All right. Okay. Thank you, Mr. Carroll. Does anyone know Mr. Carroll or any of If you would, please raise the folks that he has introduced? your hand. All right. Thank you. Counsel for defendant, if you would like to introduce your folks? 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 please. Mr. Carroll, I have got to start with you. aren't too many of us around that spell it right. MR. S. CARROLL: MR. CARROLL: No, there is not. There MR. RANDALL: Jeff Randall. California. Virginia. Thank you, Your Honor. My name is I represent Apple. I'm from Northern Allan Soobert is from And with me With me are my colleagues. Christian Platt is from San Diego. from Apple is Lisa Marie Schull, and Maurine Krall. THE COURT: Thank you. Do you have any witnesses from the East Texas area? MR. RANDALL: THE COURT: All right. Your Honor, we do not. Thank you. Does anyone on the jury panel know any of these folks that have just been introduced to you? THE COURT: All right. Very well. At this time you have been provided questionnaires, which are very helpful to the parties and the Court, that answer a lot of questions about each of you. And that will be helpful to us. And I have allowed each side 30 minutes to question the jury panel. So at this time the Court will recognize Mr. Carroll for the purposes of Voir Dire Examination. Mr. Carroll. MR. CARROLL: Thank you, Your Honor. If the Court Two R's and two L's and an O. 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 that name? all that? MR. MORRISON: MR. CARROLL: (Nods.) Do either of you two, Mr. Morrison or there. Let me ask you just a couple of questions. all, you know who Steve Jobs is, do you not? MR. S. CARROLL: MR. CARROLL: him on the TV? MR. S. CARROLL: MR. CARROLL: I probably have. Of course, we all know about They started on April No. Have you ever seen First of MR. S. CARROLL: MR. CARROLL: And an O. A lot of people want to put an E in The head of Apple. Okay. Apple, a very successful company. Fool's Day, I'm told. Mr. Morrison, you are nodding. Do you know about Mr. Carroll, know who a guy named Ronald Wayne was in the history of Apple? MR. MORRISON: MR. S. CARROLL: MR. CARROLL: (Shakes head.) (Shakes head.) Ronald Wayne, does anybody ever know Ronald Let me tell you, it is a great story. Wayne was the third founder of Apple. Beatle. Beatle? Kind of like the fifth You remember the fifth Beatle, the legendary fifth He was the third founder, and he got cold feet and 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 sold his 10 percent in Apple out for $2300. worth 22 billion dollars. Now here is my question. One of the issues in this Today it would be case, Mr. Carroll and Mr. Morrison, one of the facts is going to be that the folks at Apple think that it is significant that Dr. Gelernter's patents were sold by an earlier company that tried to make a financial go of them and couldn't for a lot of reasons, for a lot less money than we are asking today. And they were sold to pay off some corporate debts. It was what accountants call, for lack of a better term, not an arm's length sale. Now, we say that is not a fair representation of the value of these patents today. Just like, you know, Ronald Wayne selling his ten percent to Apple for $2300, you wouldn't -- nobody would say that has any bearing on the value of Apple today. Would you agree with that, Mr. Carroll? MR. S. CARROLL: MR. CARROLL: MR. MORRISON: MR. CARROLL: I would agree with that. Would you agree with that? (Nods.) Anybody else on the panel have any trouble with that, the idea that you have a brother-in-law sale, that doesn't necessarily say what the value of the property is? looks. Does anybody disagree with that? I see some 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 Company. MR. CARROLL: Do you use -- and I have read all of see you. MR. CARROLL: MR. TATUM: could see you. MR. CARROLL: Okay. That is even better. If the Sir? I was looking around to make sure I Mr. Tatum, you are kind of staring about that. that a problem? MR. TATUM: I was just trying to make sure that I Is fact -- if Apple tells you that whatever money we want is too much -- and I can promise you they will say that because way back when, David Gelernter's little company that was trying to compete against the Microsofts of the world and couldn't do it and the patents got sold for not a whole a lot of money to pay off some debts, can you listen to all of the facts before just saying they sold it for a little bit of money; they can't get any more than that same little bit of money? MR. TATUM: MR. CARROLL: MR. TATUM: MR. CARROLL: do for a living? MR. TATUM: I work for Central Link Telephone Yes, sir. You could hear that through? Yes, sir. Tell me before I forget, what do you the questionnaires and I ought to remember all this and I 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 royalties? MS. WILLIAMS: MR. CARROLL: MS. WILLIAMS: MR. CARROLL: MS. WILLIAMS: MR. CARROLL: water rights? MS. WILLIAMS: MR. CARROLL: any oil royalties? All right. Well, let me just start this way. Ms. No. Okay. Anybody on the jury box have No. You must not have been born right? I was born in Phoenix. In Phoenix, Arizona? Yeah. Okay. Well, that explains it. Maybe don't -- do you use any Apple products? MR. TATUM: MR. CARROLL: No, sir, not as I know, sir. Okay. Last question I have. Do you -- are you fortunate enough to have property that has oil on it? MR. TATUM: MR. CARROLL: No, sir. Okay. Sorry. Let me ask some of your panel members, anybody out here enjoy any oil royalties? You are from Henderson, and you don't get any oil Williams, now let me talk to you now that I know you are from Phoenix and you are the only person in Rusk County without oil royalties. Let me tell you how it works. Oil royalties are a 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 situation, if you own property and it has minerals underneath it, and you are fortunate enough for somebody to want to drill on it and they do and make money, you as owner of the property get some piece of the return. MS. WILLIAMS: MR. CARROLL: Correct. Okay. Here is my question to you, the piece of the return depends upon how much the oil company makes? MS. WILLIAMS: MR. CARROLL: Yes. Okay. That is the same kind of If we arithmetic that is at work in these patent lawsuits. have property, which you saw on the film, we do, a patent is property -- everybody knows that, right? Idea property. We say that the folks over here in Apple made a pot of money using our ideas, and we say that we are entitled to that -- a piece of that pot even though we're not nearly as big as they are. And I will tell you right off, it is based upon how successful they are. We say with our ideas. So that their success in a trickle-down comes to us. far? MS. WILLIAMS: MR. CARROLL: Uh-huh. Are you with me so What if the trickle-down, and that is less than one percent, less than one percent of what we say they are making using our property, comes to almost $500 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 million, would you be tempted to say that is just too much for an individual like David Gelernter and his wife Jane to get? MS. WILLIAMS: MR. CARROLL: company you work for? MS. WILLIAMS: MR. CARROLL: MS. WILLIAMS: MR. CARROLL: MS. WILLIAMS: MR. CARROLL: MS. WILLIAMS: MR. CARROLL: Tyler Ford. Tyler Ford here in Tyler. Uh-huh. Okay. You drive every day? No. Okay. Does anybody -- tell me what I drive every day. I hope you are driving a Ford. I drive an Explorer. Explorer. Good. Thank you, ma'am. And, that Does anybody disagree with Ms. Williams? is, if, in fact, we are right and if, in fact, our ideas generated enough profit or enough return -- I will put it that way -- so that Apple made enough money and would, by sharing less than one percent of it with us, would give us $500 million or thereabouts, would anybody say that is too much for an individual like David Gelernter, a little company like Mirror Worlds to get? I don't care what the law is, I don't Is there care what the arithmetic is, it is just too much? anybody that believes that way? okay. Because if you do, that is Anybody But you don't need to be sitting on this jury. in the box? 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 you. Mr. Carroll, you are grinning at me. MR. S. CARROLL: MR. CARROLL: If you can prove it. That is the point. If, in Okay. fact, the money is there and if, in fact, it is generated using our property, do you see any difference between Amoco drilling on Grandma farm and a boomer coming in and people saying Grandma shouldn't have that much money, and you say, no, it is her property, right? MR. S. CARROLL: MR. CARROLL: That's right. I Anybody disagree with Mr. Carroll? Because I know nobody is going love being able to say that. to disagree with you. Okay. They may disagree with me. Thank you. Let me -Thank David, do you mind standing up one more time? Okay. You can be seated. David Gelernter is going to figure very prominently in this lawsuit. In 19 -- Your Honor, may I take a step or two this way? THE COURT: MR. CARROLL: Yes, you may. In 1992 David Gelernter wrote this Everybody see it? book, and it is called Mirror Worlds. David Gelernter is a professor of computer science at Yale University, which is the -Second oldest? MR. GELERNTER: Third. 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 States. MR. CARROLL: Third oldest university in the United I say this without, you know, embarrassing him, I And he wrote this book in 1992 hope; but he is a smart guy. predicting that one day people in his field in computers would be smart enough to make a computer serve us rather than us serving the computers. And the way David Gelernter viewed the world was that it would be a mirror of our world. He says, "This book You will describes an event that will happen some day soon. look into a computer screen and see reality." mirror. Just like a That is where the name of the company comes from. And what he decided that would have to happen in order for computers to begin to do for us what he thought they would be able to do, is they would have to make sense to us. And one of the ways they would make sense to us is that they would organize data the way we live our lives, that is, past present, and future. Stream. Now, has anybody in the jury box ever heard of a terrorist called the Unabomber? Anybody out here? David Gelernter was a victim of the Unabomber. He was blown up when he opened a package at his office in Yale, and he was one of 23 people over a 15-year period who were targeted by this terrorist. And, fortunately, his injuries were not fatal. Three of them were to various folks. He has an injured hand. 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 You can probably see it. eyes. And he has problems with one of his But he was targeted because of his -- because of the significance of the views that were in this book. Now, has anybody other than just knowing that this Unabomber terror campaign occurred, does anybody know any specifics about the terror bomber? Okay. Let me tell you why it is relevant, why it is The evidence is going to be that pertinent to this case. David Gelernter went from writing books and thinking about this new world that would be a mirror of my world and your world, to actually putting pen to paper and trying to invent this Mirror Worlds as a consequence of being blown up. He gets blown up and he decides that life is just too short and he needs to make real what he dreamed about in this book. Has anybody -- well, let me ask it this way: anybody had an experience like that, a life-changing experience where something bad happened to you or one of your family members and it caused you to decide I have got to get some things done in my life? out here? regard. But that is the significance of this Unabomber terrorism and David Gelernter? Okay. Who is afraid of computers? Anybody? Nobody I haven't either. Anybody on the panel? Anybody Has So we are all fortunate in that is afraid of them? And "by afraid of them," I mean, who would 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 rather not fool with them? minute. Wait a minute. Ms. Brewton? MS. BREWTON: MR. CARROLL: MS. BREWTON: MR. CARROLL: MS. BREWTON: MR. CARROLL: Yes. You live down in Bullard? Yes. You would rather not fool with them? I don't know how to fool with them. Let me ask you this, and I hope Ms. Jane Nobody. That is amazing. Wait a I knew I would have a taker. Gelernter doesn't mind me using her as an example: Gelernter is a musician and a smart person just like you are a smart person, but computers always turned her off. And it bugged her husband that these tools weren't anything that suited her need. Do you see what I am saying? Yes. Does that strike a cord with you? Yes. Okay. His idea was that the goofy Does that make sense? MS. BREWTON: MR. CARROLL: MS. BREWTON: MR. CARROLL: things ought to work for us. MS. BREWTON: MR. CARROLL: Yes. If they would work for you, would you be interested in learning about them? MS. BREWTON: turn it on and work it. MR. CARROLL: Guess what, that is where I was a few I'm starting to try to learn how to 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 up. years ago. about it? MS. BREWTON: MR. CARROLL: Me, too. I am kind of taking baby steps. One I was the only one in my family that didn't know of the things that we know about computers, and you are going to learn in this lawsuit if you are on the jury -- and it is an amazing thing -- is the amount of information every day that is being created. Congress is? MS. BREWTON: MR. CARROLL: Yes. And I wrote this down. There is a Do you know what the Library of fact that comes from Apple folks -- so it must be true -- is that in 2002, which was eight years ago, there was enough new information created to fill up 37,000 Libraries of Congress. New information. And these computers, they can store it. But the idea is how can we know where it is and get it if we need it? That is where this man came in. Let me ask you one more question while we have you We had sued Apple. I know from your questionnaire you got sued on some kind of an estate or trust deal? MS. BREWTON: MR. CARROLL: Yes. And I am sorry that happened because from your questionnaire it looks to me like it was kind of thin? MS. BREWTON: Yes. 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 MR. CARROLL: And I don't know how to ask it other than just to ask it, is this going to be tough for you to give us a fair shake because we are suing and you have been sued? MS. BREWTON: MR. CARROLL: No, I can still be fair about it. Okay. Is it such a bitter thing though that when you just walk into a courtroom that you just think nobody should be here? MS. BREWTON: MR. CARROLL: No. Thank you. I guessed that would be the answer, but thank you for telling me that. Is there anybody else on the jury panel who has got an attitude about lawsuits that they just shouldn't be around? fine. I mean, a lot of folks have that attitude. That is But you don't need to be on this jury if you have that Anybody? Anybody ever belonged to a group that advocated attitude. changing the rules for lawsuits? Okay. One of the things that -- Mr. George, may I talk with you just for a minute? MR. GEORGE: MR. CARROLL: You sure can. You wrote on your questionnaire, if I understood it right, that -- was it your employer or former employer Electric Mobility Corp had some patents? MR. GEORGE: MR. CARROLL: Yes, one is pending right now. Okay. Did you have anything to do 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 valid. with the application or the process? MR. GEORGE: MR. CARROLL: Mobility in? MR. GEORGE: MR. CARROLL: MR. GEORGE: MR. CARROLL: Durable medical equipment. Okay. Pardon? Did you work for Cardinal, or did I You used to work for Cardinal? No, no. We just helped in the design. What kind of business is Electric get somebody else -- somebody on the panel worked for Cardinal. You did? Okay. You know who Cardinal is, right, a big distributor? Maybe you don't. MR. GEORGE: MR. CARROLL: downstairs? MR. GEORGE: MR. CARROLL: MR. GEORGE: MR. CARROLL: Yes, sir. The patent film? Yes, sir. And one of the things that the patent No. Let me ask you this: You saw the film film teaches is that patents are issued after a process that is pretty comprehensive. MR. GEORGE: MR. CARROLL: Would you agree with that? Yes, sir. They leave that with a stamp being You heard the man on the film say that? 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 MR. GEORGE: MR. CARROLL: Yes, sir. There are going to be two different things that are happening in this lawsuit, I believe -- unless things change -- and that is, number one, our friends at Apple are going to say we didn't do it, we didn't take your property and make all this money. Then they are going to say but if we did, if we did, your patent is no good to start with, and we are going to show it is no good. Now, the Judge is going to tell you and may have already told you, there are two different rules about proving that. Did you hear that this morning on the film? MR. GEORGE: MR. CARROLL: Yes, sir. I appreciate you standing up. I am about to let you sit down. MR. GEORGE: MR. CARROLL: MR. GEORGE: May I make one comment though? Yes. My company just finished coming out of a lawsuit, I believe, that they figured out how to beat the patent. They have several patents anyway. So I do know that it can be broke. MR. CARROLL: MR. GEORGE: MR. CARROLL: A patent can be invalidated? Yes, it can be. If this table is a football field -- do you have a favorite football team? MR. GEORGE: No, I am not much in sports. I work. 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 evidence. MR. CARROLL: If this table is a football field and this water jug is the 50-yard line, when we are trying to prove that Apple took our property and made all that money, we have just got to get the nose of the ball past the 50. Everybody see that? evidence means. MR. GEORGE: MR. CARROLL: Right. If they are trying to kill our patent, That is what preponderance of the which they are -- just like your company was successful in killing somebody else's patent -MR. GEORGE: MR. CARROLL: MR. GEORGE: MR. CARROLL: MR. GEORGE: MR. CARROLL: They got ours. Oh, they killed -They killed ours. Sorry. Yes. They have to move that ball way down into the red zone, the difference between the 50 and the red zone? MR. GEORGE: MR. CARROLL: Right. This is called preponderance of the And this is called clear and convincing evidence. Now, it is not a criminal case where you have got to get it almost down to the goal line. But it is a different and harder and tougher job to kill a patent than to prove infringement because they come out presumed to be, what? 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 less. MR. CARROLL: Thank you. There you are. I Valid. Now, does anybody think that is unfair; that for Apple to try to kill our patent they have a tougher row to hoe than we do in trying to prove our property? that is unfair? Because that is the law. Okay. Anybody think I didn't make it. Judge didn't make it. Everybody can apply the law. Thank you for talking to me. Your Honor, I have got, what, about eight minutes left, ten minutes? THE COURT: About eight minutes, yeah, a little Ms. Moseley, where are you? see -- you said in your deal, your questionnaire, that you got sued also? MS. MOSELEY: MR. CARROLL: MS. MOSELEY: MR. CARROLL: MS. MOSELEY: MR. CARROLL: Uh-huh. It got tossed out? Right. Did you have to come to court? No, no. Same question that -- I ought to be able to remember names, but I am at the point I can't -- Ms. Brewton. We are suing somebody, is that going to -- the fact that you got sued and the thing got thrown out, is it going to cause you to think that Apple probably isn't guilty of what we 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 say? MS. MOSELEY: Well, I was pleased with my results. You know, when somebody tried to sue me it didn't pan out, so I was pleased. I don't know all of the facts here. I know the facts in my case. MR. CARROLL: you start fresh with us? MS. MOSELEY: MR. CARROLL: MS. MOSELEY: MR. CARROLL: MS. MOSELEY: MR. CARROLL: MS. MOSELEY: MR. CARROLL: Sure. Hear us out? Yes. What do you do? I am a substance abuse counselor. Here in Tyler? Henderson. In Henderson. Well, you two ought to Right. That's all I'm asking. Can get in a carpool or something. ways though. MS. MOSELEY: MR. CARROLL: Let's see. Yes. You are going to different Thank you. Now, is it Ms. Guedry or Guedry (different pronunciation)? MS. GUEDRY: MR. CARROLL: Guedry. Guedry. May I chat with you, Ms. Guedry just for a second. Your husband is a nurse anesthetist and got sued, a malpractice deal? 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 this. lawsuit? MS. GUEDRY: MR. CARROLL: MS. GUEDRY: MR. CARROLL: Do you live here? MS. GUEDRY: Longview. No. Well, good. (Knocks on podium.) sued. MS. GUEDRY: Well, I don't really know that he got And he was Do You know, they are supervised by MD's. called in because he was -- he personally was not the one. you see what I am saying? MR. CARROLL: Yeah. But you put down on your questionnaire in the answer to the suit question, you know, that information -- and I am glad he wasn't personally involved. But my question is, just like I talked to your fellow jurors up here, is that going to cause us to start out behind? suit. MS. GUEDRY: MR. CARROLL: Right. So should I be worried that your This is a property rights suit not a personal injury husband's situation is going to bleed into our deal? MS. GUEDRY: MR. CARROLL: MS. GUEDRY: MR. CARROLL: No. You are a nurse, correct? Uh-huh. Have you ever had to fool with a I don't work right now. Okay. And I forgot. I don't know 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 Longview? lawsuit? Thank you, Ms. Guedry. THE COURT: MR. CARROLL: You have about three minutes. Thank you, Your Honor. Ms. MR. CARROLL: MS. GUEDRY: MR. CARROLL: Do you know Eric Albritton? I have heard the name. I don't know. Eric is a local lawyer in Longview who Would that matter to you? is working with Apple on this case. Do you have any relationship with Eric? MS. GUEDRY: MR. CARROLL: Huh-uh. Anybody else know Eric Albritton in If you do, would it make a difference in this Let me ask, where is Ms. Richardson? Richardson, your father-in-law had something to do with patents? MS. RICHARDSON: MR. CARROLL: Yes, but I don't know what. Does he own patents? Uh-huh, he does. Charles MS. RICHARDSON: Richardson. MR. CARROLL: Okay. All right. One of the things that you probably learned from the film this morning, and I hope all of you saw this, is that there is no patent police? MS. RICHARDSON: MR. CARROLL: Right. In other words, when somebody has a patent like your daddy-in-law or like David Gelernter and they 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 Apple. afternoon. think somebody is using it without their permission, they can't -- the Patent Office doesn't have anything to do with that. They have to come to a courthouse just like this one and to get a jury just like you-all to hear them out and enforce their property rights if that is what the facts show. MS. RICHARDSON: MR. CARROLL: Correct. Does that create a problem for you? No. Anybody on the panel have a MS. RICHARDSON: MR. CARROLL: problem with that? is the system. All right. Okay. Because that is just the way it is, that Thank you, ma'am. You are welcome. MS. RICHARDSON: MR. CARROLL: the questions I have. Ladies and Gentlemen, that's all of I look forward to presenting the case with my colleagues here to the eight of you who will judge our facts. Thank you. Thank you, Your Honor. THE COURT: Mr. Randall. MR. RANDALL: Thank you, Your Honor. Good Thank you, Mr. Carroll. My name is Jeff Randall. I represent Apple, and I am going to ask you-all some questions as well. First, let me just tell you a little bit about Apple started in the '70s. It is clearly a very 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 successful company right now. It is probably one of the most successful and well-respected technology companies there is. It hasn't always been that way. In fact, early on in the '70s they came up with a great idea, Steve Jobs and his colleagues came up with a great idea to make computers easy to work with. graphical images on the screen. So at that time IBM was the dominant player. IBM His idea was to use had all of the computers nearly in the market, and you had to plug in codes and function keys and commands into the keyboard. You had to type them in. So in the first place you had to know what those codes were, and you had to know what to type in. And it was difficult. If you think computers are hard now, they were really hard to use then. And Apple's idea was let's put these pictures on the computer screen so people can see them, and we will use those images to allow computers to be easy to use by people. for instance, you could use a mouse, you could put your document on the screen, you could go into the document and work on it and save it and sit it right there on your desktop. You could take your mouse, a little device in your hand, click on that document and drag it right across the screen. If you wanted to get rid of it, you put it right in a If you want to empty the garbage can, you would And, garbage can. 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 mightily. click on that little garbage can and say empty the garbage can. Simple, easy-to-use computer. That is what Apple did. Apple was successful. computers in the '80s. Apple came out with a lot of great They came out with their Macintosh computer in the '80s, and then Microsoft came along and they took a lot of those graphical images on the computer and allowed -- wrote software and allowed all these other PC's to use that software, like HP and Compaq and IBM and all these other computer companies. And Apple struggled. Apple struggled Apple was not always successful. Then Apple fought back and in the last eight years They invested in their employees. They have 37,000 have been very successful. They invested in research and development. employees in the United States and worldwide and they have become successful and they have come back and they did that through innovation. They did that through studying what And people wanted with technology, how they could use it. they wanted to make it easy for people to use. story behind Apple, in a nutshell. That is the I want to ask you, we have heard from Mr. Carroll about how successful Apple is. True, Apple is successful now. That is It started out well, struggled, and it came back. what happened. Now, does anybody here think that just because Apple 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 testimony? is successful, just because they have done well, they have invested in their employees and they have invested in research and development and they have come out with great products that people really like -- and they have made money, no question about that -- does anybody think that just because Mirror Worlds has sued them, without putting on any evidence at all -- what Mr. Carroll said wasn't evidence -- but without putting any evidence at all on, does anybody here think that maybe Mirror Worlds deserves some of that? Without hearing any evidence, without hearing any Without hearing any witnesses, does anybody think, well, look, Apple has got a lot of money, they have done very well, they are successful, they ought to give some to Mirror Worlds? Does anybody feel that way? Okay. Does anybody feel that just because Mirror Worlds has patents and because they have patents, somehow Apple must have used those patents? Again, without hearing any witnesses, without hearing any testimony, does anybody feel right now they got a head start? No? Okay. You are going to hear testimony that Apple has patents too, obviously. Apple was the first company that successfully commercialized using pictures and graphics on the computer screen and making personal computers easy for people to use, the first company that successfully did that. have patents on this. They 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 In fact, they have patents that were filed three years before Mirror Worlds, three years before. And Mirror Worlds actually infringes Apple's patents, and we are going to show that. Now, does anybody here have any issues at all with listening to the testimony, listening to the witnesses, and then ultimately deciding whether Mirror Worlds infringes Apple's patents, the patents that were filed three years before Mirror Worlds' patents? about that? Okay. Does anybody have an issue Another thing that is going to happen and happened today is that Mirror Worlds gets to go first. first. Not us. They get to go Even though we are claiming they infringe our patents, they are claiming we infringe their patents, they are going to get to put their case on first. Our witnesses are going to come, and we have Apple executives that are going to come and they are going to testify about exactly how their products operate. We believe that when you hear that testimony, you are going to find that Apple does not infringe these patents. But in any event, will you be able to sit, all of you -- and I don't know who will be on our jury -- but will everybody be able to sit and listen to all of the testimony, wait for our turn to put our case on, put our witnesses on? have a problem with that? Does anybody 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 Another issue I have got to ask a few issues about -- there are a few issues that are going to come up in this case. I heard Mr. Carroll mention that Mr. Gelernter and we are entitled to certain money from Apple, we are entitled to this, we are entitled to that. owns Mirror Worlds and owns this. is asking for the money. Does anyone here invest in hedge funds or have an investment in hedge funds, either you or any of your family members? And there was testimony -- there was argument about Mr. Gelernter and that he suffered a horrific accident. is no question about that. All right. It doesn't have There Well, actually a hedge fund It is the hedge fund that anything to do with whether or not Mirror Worlds infringes, with whether or not Apple infringes, with whether or not these patents are valid or not. with it. Okay. Now, does anybody here feel differently, That doesn't have anything to do feel, well, maybe he is a victim of something, we ought to consider it in deciding these facts in this case? anybody does, I really need to know that. Because if All right? Mr. Carroll asked you guys if any of you have gone through a very horrific incident in your life that changed their life, and I understand that. This is a big issue. This doesn't have anything to do with this case. It is a horrific 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 accident that occurred. And I am sorry, and I think everybody But it doesn't have anything to Because if should be sorry about that. do with this case. Does anybody feel differently? you do, please speak up now. Now, this case, both sets of patents, the Apple patents and the Mirror Worlds patents, deal with two fundamental issues. this. And you are going to hear testimony on The two fundamental issues are, how do you organize documents on your computer? Now, you are going to hear testimony from Apple and Microsoft do it a certain way, Unix systems do it a certain way. They use folder systems almost like a file folder that Right? So maybe you have a some people would use at work. file folder at home and maybe you put family photos in it. And maybe photos of your grandson in one folder -- you put photos of your grandaughter in another. in a folder called family photos. That's how Apple organizes its documents. how Apple has always organized its documents. Microsoft documents work. That is But all of those go That is how All of that is done way before Mirror Worlds came up with their idea, which is to put documents in a chronological order. Everything that goes in the computer goes in chronological order as opposed to putting them -- organizing them in file names and folders. how Apple does it. That is 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 clear. That is not that difficult. The other issue in the case is, how are those documents and images displayed on the computer screen so we can all see them and use them? are two issues. Those How are the documents organized and stored in the computer, and how are they displayed visually on the computer screen? Now, if we do our job, all of those issues will be And over time in the course of this trial you will You will hear hear witnesses testify about that information. experts testify. You will see videos. You will see exhibits. And it is our job to make these issues clear to you. Does anybody feel uncomfortable with your ability to listen to that type of testimony on those issues and ultimately decide this case? to us. Because it is an important case Is there anybody that feels like, for whatever reason, I say that because I want to know. you just can't do that? It doesn't mean you won't ultimately be on the jury, but it just means I need to know where everybody stands. There was some talk about the video, and I know that earlier you heard and you watched this video about the Patent Office and you saw that -- and Mr. Carroll was talking about the football field and the red zone and everything else. Does anybody have an understanding about whether or not the Patent Office has all of the prior inventions an all of the prior art before it? So, for instance, I think you saw 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 the video and you know that when the Patent Office gets a patent application, when the Patent Office gets a patent application, typically they read the application, typically the inventors submit all of the other inventions that they are aware of, all of the other written articles, all of the other patents, anything they have done -- like this book, this 1992 book, which the Patent Office didn't have in this case. But they submit that information to the Patent Office, and the Patent Office then looks at that information and decides whether or not to give this patent out. Well, sometimes -- I think you heard this in the video -- well, sometimes the Patent Office doesn't have all that information. They don't have it. And in this case you are going to hear evidence that the Patent Office in this case didn't have the Apple patent that was filed three years before. They didn't have lots of other company's products, software, and even some of the articles written by these gentlemen, the inventors. They didn't have that when they decided to give these patents out. Now, does anybody have a problem in deciding this case about whether or not these patents are valid if you find that the Patent Office didn't have all of the information? They didn't have the Apple patents. They didn't have other companies' software and products, they didn't have other companies' articles. They didn't have all of the articles by 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 patents? MR. GEORGE: One right now is -- I won't talk about Mr. Gelernter and his colleagues. Yes? MR. GEORGE; was before his. MR. RANDALL: Yeah, that's right. I accept that As long as you prove that your patent challenge I heard earlier about proving it and making it clear. We certainly will do that. follow-up questions for you, sir. I'm sorry. MR. GEORGE: MR. RANDALL: Yes, sir. Your company had some patents that I do have a couple Mr. James -- Mr. George, were ultimately invalidated; is that right? MR. GEORGE: I'm a sales rep for that company, and We worked with them they have several patents over the years. from the ground floor. We give them ideals and took it and We thank the Lord for that ran with it and got patents. because it put us in a real good place in the industry here over the next few months anyway. MR. RANDALL: Yeah. Was there a lawsuit about those it anyway, but they felt -- I talked to the president of the company. He felt that they found a loophole, and so they were able to beat the patent anyway. 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 MR. RANDALL: or just one of them? MR. GEORGE: MR. RANDALL: No, no, just the one. And do you know if they invalidated Did they knock out all of the patents that patent because they found some -- and this is called "prior art" if someone else did it before you, someone else came up with this idea of putting documents in a chronological order kind of like you put photographs or like you write in a diary or like you write a story; but if someone else came up with this idea about putting documents in chronological order and we were able to prove that, would you have any problem? MR. GEORGE: MR. RANDALL: these patents invalid? MR. GEORGE: MR. RANDALL: No. And there is nothing about your case No, sir, as long as you prove it. You wouldn't have any problem finding and your company's experience that would taint you or bias you in any way in this case. MR. GEORGE: No, sir. They just found a loophole. They didn't dot the T -- or dot the I or didn't cross the T. They found it, you know. MR. RANDALL: significant? MR. GEORGE: MR. RANDALL: Pardon? Was it just a loophole like not Was it a loophole, or was it something 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 land. crossing -MR. GEORGE: what they did. MR. RANDALL: All right. Okay. Thank you. They found another way of doing it is Now, Mr. Carroll also talked about finding oil on I think the suggestion there was that -- I think the assumption there was that the land that he was talking about was Mirror Worlds' land. So I think when you saw the video about the Patent Office, you understand that just because someone comes to the Patent Office with a patent and says I think this is mine, it doesn't mean that -- necessarily mean that it is theirs. Does anybody have a problem with that notion; that they actually have to prove it is theirs and that ultimately this is the only place we are going to invalidate it is right here in court? If Apple looks at this patent -- I want to see if everybody understands this. it, I would like to know. invention. And if anybody has a problem with If Mirror Worlds says this is our Our invention is putting documents in a chronological order, and no one else ever came up with it. They say, therefore, we have this valid patent. And then we look at it and say, well, no, number one, we did that three years before you did. You can certainly do that. Number two, all these other companies out there did it. Number three, 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 case. none of this stuff was ever before the Patent Office when they gave you these patents. Now, does anybody have any problem with deciding those issues ultimately if we are able to prove it? Okay. There is also a rule that is going to apply in this It is kind of a hard and fast rule about a patent. That is, if you are going to be an inventor and you are going to go to the Patent Office, you have got to show them the information, writings and everything else that you have. And sometimes the Patent Office doesn't get all that information. Okay. And so there is going to be proof here in this case that there is actually some writings, articles, articles written by Dr. Gelernter's own student, his own student wrote an article. And there is other articles that were written that were never before the Patent Office and never considered. So there is a rule that says if you describe your invention in a writing that is public more than a year before you file your application, it is invalid. Okay. Now, some people may think that is a little Gelernter may have Other people harsh, these guys wrote it themselves. written it. His student may have written it. may have written these articles. Does anybody think that that rule, which is a rule, that you would have difficulty applying it, difficulty applying a rule that says if you describe this 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 patents? MS. RICHARDSON: MR. RANDALL: that money? MS. RICHARDSON: MR. RANDALL: the patents? MS. RICHARDSON: MR. RANDALL: Oh, no. All right. Does the fact that No. Yes, uh-huh. invention in a writing a year before, then you don't get your patent no matter who else did it before you? have a problem applying that? Let me ask a few questions. MS. RICHARDSON: MR. RANDALL: Yes. Ms. Richardson? Would anybody Now, your father-in-law had one or more patents; is that right? MS. RICHARDSON: MR. RANDALL: Yes. Do you know what the subject matter -It has to do with oil field MS. RICHARDSON: equipment is all I know. MR. RANDALL: Oil field? Yes. MS. RICHARDSON: MR. RANDALL: Did he ever collect money off those Did he ever have to sue to get any of Did you ever have anything to do with Okay. your father-in-law had patents affect you one way or the other? 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 matter? MR. HOLCOMB: MR. RANDALL: MR. HOLCOMB: lady held us up. guilty or not. was a hung jury. It was a rape case in Athens, Texas. Yes. We deliberated for days on it. One that? MR. HOLCOMB: Pardon me. verdict? MS. RICHARDSON: MR. RANDALL: here, not one way or -MS. RICHARDSON: MR. RANDALL: Right. No, it doesn't. You are still right in the middle Thank you. You are welcome. MS. RICHARDSON: MR. RANDALL: Now, I noticed that there were a number of people that sat on juries before, and some of those juries were civil cases and then there were a lot of other criminal cases that I saw. Now, has anybody sat on a jury that didn't reach a It is one thing if the case settles, I understand that; but did anybody sit on a jury where you sat there and deliberated and just couldn't reach a verdict? Yes. No. Can you let me know the circumstances behind Can you let me know the circumstances behind that We couldn't persuade her to say he was All of the evidence pointed towards it, so it 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 good. MR. RANDALL: Well, I used to be a prosecutor, so I Mr. Holcomb, did that know that is a difficult issue. experience -- now, I understand that a hung jury is a difficult issue; but did that experience affect you in such a way that you couldn't be a fair and impartial juror in this case? MR. HOLCOMB: No, I don't because when they retried him they were only out for an hour and a half and found him guilty, so justice was done. MR. RANDALL: There we go. All right. Okay. Well, There is nothing about that case that is going to affect your ability to serve as a juror here? MR. HOLCOMB: MR. RANDALL: No. Thank you very much, sir. Now, since -- some form of technology is going to be discussed in this case, it is a patent case and I told you about the issues and how documents are organized and how they are displayed on the screen. Is there anybody here that knows enough about computers and technology that they actually write software? No? Okay. Does anybody here provide assistance to other people in using computers, whether it is students -- I know we have a lot of teachers here. Whether it is students or anyone else Yes? Raise your do you ever provide assistance to people. 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 education. hand. MS. FERRELL: MR. RANDALL: you provide? MS. FERRELL: Oh, computers are very prominent in Kimberley Ferrell. Thank you. So what kind of help do I mean they come out of first grade knowing what We know -- we are all the way to I teach seventh grade, so icons are on the screen. white boards, interactive boards. it is a very prominent thing in education. MR. RANDALL: Okay. And is there anything in that -- in your work with seventh graders that pushes you either one direction or the other in this case in terms of your ability to decide the issues? MS. FERRELL: MR. RANDALL: Anyone else? Ms. Till, right? MS. TILL: Uh-huh. Explain how you assist folks? Not at all. Thank you very much. Yes, okay, let's go through these. MR. RANDALL: MS. TILL: I just always assist other co-workers in learning programs and things. MR. RANDALL: MS. TILL: Have you used Microsoft Windows? Yes. Have you used Apple computers? MR. RANDALL: MS. TILL: No, I have not used Apple. 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 Okay. MR. RANDALL: Okay. Well, in this case they operate almost in the same way in terms of keeping documents with file names and folder names. MS. TILL: Yes. All right. Let's see, who else up You are familiar with that? MR. RANDALL: front, Mr. Carroll? MR. S. CARROLL: MR. RANDALL: in using computers? MR. S. CARROLL: Yes, sir. Can you explain how you assist folks A couple of ways. One, when I worked for a major company in Dallas. I troubleshoot software, find their bugs in it, and then send it back to the developer to fix it. And now I own a telecom company where I provide white boards for schools or computers, as well as phone systems. MR. RANDALL: All right. So you are familiar with the way folks use file names and file folders -MR. S. CARROLL: MR. RANDALL: Terrific. Yes, sir. -- and organize their documents? Is there anything about your work with the telecom company that is going to affect one way or the other your ability to handle decisions in the case? MR. S. CARROLL: MR. RANDALL: Let's see. No. Thank you very much. Okay. Mr. Morrison? 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 Randall. MR. RANDALL: Thank you. well. MR. MORRISON: Yes, sir. I'm a tech support agent Basically, what I do is for an Internet service provider. help people get connected to the Internet, use email applications, functions like that. MR. RANDALL: data phone? MR. MORRISON: Right, I work for a cable company as So I I saw in your questionnaire, video We provide Internet, cable, and VoIP phone. support customers in getting those connected and keeping them connected. MR. RANDALL: operating computers? MR. CARROLL: Well, I guess early '90s would have I had one of the I have been mostly How long have you been familiar with been my first experience with computers. first Tandy's and worked through that. with PCs and Windows applications but have used Apple some. MR. RANDALL: THE COURT: Okay. Terrific. Thank you very much. You have about three minutes left, Mr. We are going to have witnesses in this case. Professor Gelernter is from Yale. We have witnesses who we will play from video from the Massachusetts Institute of Technology, MIT. We will have professors from Columbia. Apple senior executives, a lot of them have advance degrees as 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 well. However, they are not going to decide this case. is your decision, and you-all go back to that jury room and you will think about the witnesses, their demeanor, their testimony, exhibits we utilized, the arguments that we made; and you are going to make the decision. Can all of you make that decision without putting undue weight to someone's testimony because they were an MIT professor or Yale professor or Columbia professor? Can you It make the decision on your own without simply saying, well, this person on their resume had a certain school, I better listen to them? in this case? Can y'all make your own independent decision That is all I ask you to do. I look It has been a pleasure talking to you. forward to presenting the case to you. Please keep your mind open and allow us to present our case and our witnesses. Thank you very much. THE COURT: All right. Thank you, Mr. Randall. Ladies and Gentlemen of the Jury, I have one final that's all the attorneys' questions for you. question, and it is a very broad one. After everything you have heard so far about this case, is there any reason that would suggest to you that, for whatever reason, you do not feel that you would be the person that ought to sit on this jury? Anybody have any other reason they would like to bring 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 to the Court's attention. All right. MS. FERRELL: That's -- let's see, Ms. Ferrell. I just keep having this one thought and I have been hearing what I am hearing, but it keeps coming back to the Patent Office for me. I'm, quite frankly, kind of angry that we have created a system that we are all sitting here having to decide this because it sounds like it is a faulty system and I'm stuck because I don't know what to do with it. It doesn't matter whom I hear, I am angry that we So I don't know if I need more are at this point. clarification. thinking that. THE COURT: I feel like you deserve that I am sitting here Okay. Let me be sure I understand, your concern is that this should have perhaps been resolved by the Patent Office? MS. FERRELL: Yes, I keep hearing that we have a faulty system in which we do not have an accurate way of putting these facts down and so that we are landing here. I mean, I feel sympathy for both sides at this point because I keep hearing the Patent Office, the Patent Office may not have, the Patent Office didn't know. keeps coming back to. can decide this case. And so that is what it So it is not going to decide whether I I just felt like it may be necessary to know that that is forefront in my mind right now. THE COURT: Thank you very much for sharing 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 There will be instructions for those of you selected on the jury regarding the law, the effect of the Patent Office's decision. I will say, generally, it is like any other Government function, you know, they do a very good job; but a mistake can be made. There are a number of issues in this case other than the validity of the patent. infringement. There is the issue of So our system There will be issues of damages. provides that a jury, after the case has been thoroughly vetted by both sides and had discovery and bring their evidence before you, then you will ultimately decide whatever issues the Court propounds to you. So I appreciate your comments, and thank you for sharing that. Anyone else have anything they would like to add? Yes, ma'am. MS. GUEDRY: Ms. Guedry? Yes. I'm sure I'm not the only one that has a comment like this, but I know how to use a computer and I know how to get it to do what I want it do for me, but I just feel really overwhelmed with this. Like I said, I'm sure And I already I'm not the only one, but I know simple things. kind of feel overwhelmed because about, you know, just hearing them present what they have and even watching the thing downstairs, I just feel like it is somewhere over my head. So I am concerned, you know, as far as being fair and all this, you know, I have to understand -- you know, 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 that. sometimes you have to spell it out for me. THE COURT: Thank you. I appreciate you mentioning I have And I will -- I try a lot of patent cases. tried seven already this year. And it is a common occurrence that jurors on the first day of jury selection have the very feeling you have. But I have told those jurors and I will tell you that I have yet to have a jury that felt that way at the end of the case when they go to deliberate a verdict. These lawyers, excellent lawyers on both sides. They have very strong resources on both sides. They are going to bring to you expert witnesses that are going to do a very good job of educating you as to what their points of view are. They are going to do a very good job of simplifying this case and getting it down to what the true disputes are that you need to resolve. So I have seen this kind of deer-in-the-headlights look before from jurors at the beginning of a trial; but invariably -- I go back and visit with every jury after a trial and, invariably, they have a great deal of confidence in the verdict that they have reached, whatever it may be, because they have been well-educated, they have listened, they have taken notes; and I think those of you that are selected, that you are going to find this a very rewarding and educational experience, an opportunity that a lot of people don't ever have to hear a case like this. 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 And by the time we are finished -- and they are going to do a good job of simplifying it for you -- that I think you are going to feel very comfortable with it. you very much for your comment. Anyone else? All right. Very well. Now, what we are going to do Thank next is I am going to give you a short recess, and we are going to be recessed until 1:25. It will be 20 minutes. At the end of the recess if you will come back in the courtroom and just have a seat on this side of the courtroom in no particular order, and then we will call out the names of the eight of you that are selected for the jury. You will come forward, be sworn in, the others will be excused. Those eight of you selected, I will have some brief instructions for you, and then you will be excused for the day. I have one instruction for you. And, that is, while we are in recess, don't go out and discuss this case with each other or with anyone else. You can talk about the weather or the rain or what you did last weekend or your hobbies or whatever, but don't discuss this case. reasons for that. And there are good And I will have more for the eight of you that are selected, more instructions in that regard when we come back. Do the attorneys have anything they need to discuss with me at the Bench before I let the jury go? 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 her -THE COURT: MR. CARROLL: Which one? No. 6, Ms. Ferrell because of her We feel MR. CARROLL: THE COURT: Briefly, Your Honor. Okay. If you would please approach. (Bench conference.) MR. CARROLL: for two of the jurors. THE COURT: MR. CARROLL: Okay. Steven Carroll. On his questionnaire Your Honor, we have a cause challenge he indicated he uses Spotlight and Time Machine; two of the accused instrumentalities. Our concern is that it would be impossible for him to obey the Court's instruction not to dismiss that and because he knows them and uses them and apparently he used them very often in his work -- uses computers, number one. And number two, we challenge Ms. Ferrell because of views of the patent -- views of the Patent Office. like she would blame the Patent Office rather than hear evidence of invalidity, so that is our cause challenge. THE COURT: MR. RANDALL: Do you have challenges? I do. I don't think that is a sufficient grounds for cause, either one. THE COURT: the jury go. I will hear argument on them when I let Anything else to visit about with either one of 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 Bench? (Reporter Note: The Reporter acknowledged to the Judge you can. (Jury Panel out.) THE COURT: All right. You may be seated. Did plaintiff have -- I'm not sure -them? MR. CARROLL: No. (Bench conference concluded.) THE COURT: All right. Ladies and Gentlemen of the Jury, I think I told you 1:25, and I should have said 2:25. But now I am going to say 2:30 because we have taken a little more time than I thought, so we will be in recess until 2:30. Enjoy your break in the hallway and come back in a few minutes before then. Thank you. Please exit the courtroom as quickly and quietly as Ms. Sloan, did you get those challenges at the she got the challenges.) THE COURT: Mr. Carroll, do you have anything you would like to add to the record? MR. CARROLL: Quickly, our challenges are to No. 4 Steven A. Carroll based on his answer to the questionnaire that he uses Spotlight and Time Machine. THE COURT: and Time Machine. I'm not sure -- oh, I see. Spotlight Why is that so prejudicial? 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 Carroll. MR. RANDALL: from this podium? THE COURT: MR. RANDALL: Yeah, that would be fine. Your Honor, number one, our view is Your Honor, may I address the Court MR. CARROLL: We believe it would be difficult, if not impossible, to avoid the Court's admonition not to do any self-experimentation because these are features of the computer program; that once he is told about them, he can outside the courtroom call them up and look at them and do his own extra-judicial comparison of what is going on. that is the challenge as to Mr. Carroll. THE COURT: Let me hear a response as to Mr. And so that is not sufficient prejudice to strike this juror for cause. Mr. Carroll had a full and fair opportunity to question that juror on whether or not he knew of or used those features. He never elicited either answer. I think the juror He questionnaire says do you know of or use the following. hasn't elicited whether the juror has an Apple computer, whether he has that software, or he simply knows of it. And, frankly, any other -- that risk with respect to other jurors may be not as great, but there is a risk other jurors could go off and do this, too. I am sure Your Honor would give that instruction in this case like every other case 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 that they should not do anything such as an experiment outside the courtroom. THE COURT: All right. MR. CARROLL: Okay. Thank you. Mr. Carroll, No. 6. The second one is Ms. Ferrell, who expressed to the Court her disappointment with the Patent Office and felt like the Patent Office was to blame for us being here. We believe that that attitude reflects an inability to follow what will be the Court's instruction about the constitutional right of a patent owner to come to Court and the constitutional right of a defendant or a counter-defendant such as us to challenge validity in court. THE COURT: MR. RANDALL: All right. Response? Your Honor, you did, when Mr. Carroll first raised this issue a few moments ago at the Bench, you did give him an opportunity to question that potential juror again and to probe that deeper if he would like to. on that. I don't think that -- what she said she couldn't follow the Court's rules. I think we both asked the entire He passed panel numerous times whether they could be fair and impartial, particularly on all of the poignant issues that we both raised. They all passed and they all said yes. The only thing she raised -- I believe she raised an issue about some frustration with whether these things should ultimately be 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 two go. resolved in the Patent Office. Frankly, they would be, but I don't think that was sufficient grounds either for cause. THE COURT: All right. The Court is going to excuse Mr. Carroll, Juror No. 4, for cause; and deny the challenge for cause as to Juror No. 6, Ms. Ferrell. That will -- (Pause in proceedings - Conference between the Court and Judicial Administrator.) THE COURT: Ms. Ferguson has advised me that one of the jurors, No. 2, Ms. Brewton approached the Court Security Officer in the hallway and said she may have some medical issues with her family. I can either bring her back in and question her about that, or we can agree to excuse her by agreement. Whatever -- Mr. Carroll, what would be -MR. CARROLL: Your Honor, I don't want her to be here if she has medical problems. MR. RANDALL: THE COURT: well, by agreement. All right. So let's see. We had 23, we just let I agree, Your Honor. We will excuse Juror No. 2 for cause, as That leaves us with 21. We need eight for the jury. That leaves us with 13, so each side will have six strikes, and we will strike down through Juror No. 22. arithmetic correct? MR. RANDALL: I think we would strike down to 21, Is my would we not, Your Honor? 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 THE COURT: Oh, you're right, because we excused two with -- actually we will strike through 20 with the two for cause and the one that we won't get to. well, no, wait a minute. think. We won't get to -- I was correct the first time I We will strike down through 22, and we won't get to Mr. Tatum. Okay. Any questions? No, Your Honor. Be in recess until 2:30. MR. CARROLL: THE COURT: (Recess taken.) (Jury in.) THE COURT: All right. of the jurors. Please be seated. Ms. Ferguson, if you will call the names And if you will come forward, the Court Security Officer will show you where to sit. THE CLERK: No. 2, Mildred Dozier. No. 4, Beverley Till. 6, Frankie Chandler. No. 8, Mary Hartmann. THE COURT: All right. For those of you who were Juror No. 1, Vanessa Richardson. Juror No. 3, Margarrita Moore. Juror No. 5, Gerald Floyd. Juror No. 7, Michael Foster. Juror Juror Juror No. And Juror not selected, our condolences and our thanks for being here today and participating in the process. You are free to leave at this time if you wish, or you are welcome to stay if you 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 like. If you wish to leave, please do so immediately, quickly, and quietly so we may proceed. (Unselected Jury Panel Members excused.) THE COURT: All right. Ms. Ferguson, if you will administer the oath to the jury, please. (Jury sworn.) THE COURT: All right. Thank you. Please be seated. Ladies and Gentlemen of the Jury, you I have some have been selected as the jury to try this case. instructions to give you at this time. carefully to them. Please listen Until this trial is over, do not discuss this case with anyone, and do not discuss it to -- let anyone to discuss this case in your presence. friends, and fellow jurors. Do not discuss this case even with the other jurors until all of the jurors are in the jury room at the end of the case, and I have actually given you permission to begin deliberating. So in a nutshell what this means is when you take a break with the jury, when you go to lunch, some of you may decide to go to lunch together. but don't talk about this case. When you go home this evening or to work tomorrow your spouse or co-worker may ask you, did you get picked on a Talk about anything you wish, This includes your family, 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 jury? You can say yes. If they say, what kind of case? You can say it is a civil case, patent case. But don't say any more about it, what it involves, who it involves, or anything of that nature. The reason for this is very important, and that is, in a trial of a case you are to decide the case only from the evidence that you hear from that witness stand and the documents that are admitted into evidence. So if you start visiting with somebody about it and they start saying, well, I know such and such and that type of thing, then you have violated the very principle that the trial is based on, so don't discuss the case with anyone else. If anyone should attempt to discuss the case with you or approach you concerning it, you should inform the Court immediately. I don't think that will happen; but if it should, please do so. Also, hold yourself completely apart from the people involved in the case; the parties, the witnesses, the attorneys, and the persons associated with them. During the course of the trial you are going to be going to lunch at the same time, the attorneys and the parties and witnesses are. them. You may be riding on an elevator with I have instructed them You have got a juror badge on. not to have any conversations with you, and I am instructing you not to have any conversations with them. 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 So they are not going to get their feelings hurt, don't get your feelings hurt. conversation. It is okay to nod, but no Again, And the reason for that is two-fold. not that anyone would say anything improper, but not only do you need to be fair and impartial but as a jury you need to convey the appearance of fairness and impartiality. If one of you were in the hallway talking about a football game last weekend with one of the attorneys on one side, the other side might walk by and wonder what are they talking about? So it is not only -- not to imply that anyone would do anything wrong, but we just need to maintain that sense of formality. This also means that if any of you have a social Internet site tool like Facebook, MySpace, or Twitter, do not discuss or even mention the case at all on any of those sites. case. Do not post updates about what is going on on the Do not send or receive text messages about the case. There have been some cases in other states where a juror would sit there and Twitter what is going on in the case or what they think of it. declared. Totally improper. Mistrial Case had to be tried over. And as you can see, there has been a lot of time and money spent getting the case to this point, so we don't want anyone to do anything that would jeopardize that. If you should see any other juror or hear about that, anyone communicating anything about the case, 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 you do need to tell me immediately. Do not make any independent investigation of any fact or matter in this case. case from any other source. Do not learn anything about the I don't think there will be But if there should be, anything on TV or in the newspaper. just don't read it or flip the channel. Also -- and this is very important -- do not use the Internet or Google to find out more information about the case, the parties or the attorneys in the case. comes back to what I told you earlier. Again, that What you are to decide this case on is just what is admitted into evidence from the witness stand and from the documents. So if one of you were to go home tonight and start Googling up "Apple" or "Mirror Worlds" you would be getting information that, number one, it has not been admitted into evidence, so you would have violated my instructions; and, number two, you would have information that the other jurors don't have. So don't make any type of independent You are to be guided solely by what you see investigation. and hear during the course of the trial. Now, this case right now I am setting it and putting you on notice to be back here on Monday, September 20th at 9:00 am. That is two weeks from today. There is another case that is set for that same time. If it has not resolved itself by then, it will go first and it will go that week; and your 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 court? case will be pushed to the next week, September 27th. So does everyone have the 1-800 number for the Anybody that doesn't have it? Okay. Call that 1-800 number, and there will be a message on there regarding this case. So if you will call it on Sunday evening, there will be a message there telling you whether you need to be here on Monday, the 20th or you need to be here on the 27th or the 25th or whatever day. If there has been any change, that is your link to the Court as far as what is going on. So call that number and check on the status of it before you come in on Monday, the 20th. But we will either see you on the 20th or the 27th in all probability. Any questions from any of the jurors? Okay. Once again, thank you for your service on this jury, and I am about to excuse you, and you will go to the jury room. Security Officer will take you there. be finally dismissed for the day. The Court That is where you will That is where you will gather when you report back here for the trial. And try to be here about 10 or 15 minutes early just to be sure there aren't any delays because if one of you is late getting here, it holds up everything. So we will try to have some coffee and doughnuts, something for you to snack on. Be here about 10 minutes early and report to the jury room on Monday, the 20th unless you are informed otherwise. Thank you. And jury is excused. 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 (Jury out.) THE COURT: All right. Please be seated. Is there anything -- well, let me inquire of the parties first, where are y'all on mediation? MR. CARROLL: We have talked to Mr. Patterson a I think that couple of times, and he is in contact with us. is probably the best way to put it. MR. RANDALL: we have gotten. THE COURT: MR. CARROLL: THE COURT: All right. I am optimistic. All right. Yeah, that is about as optimistic as I would encourage both sides You have got a Once the trial to continue to visit with Mr. Patterson. couple of weeks before the trial starts. starts, I know y'all are going to be spending a lot of your clients' money over the next several weeks and through the trial. Once it gets started, sometimes it is hard to stop. Rather than the unpredictability of what the crazy jury or crazy Judge might do in this case, you still have your futures in your own hands if you will try to work out a business solution to your problems. that. Is there anything the Court could help you with today before we recess? MR. CARROLL: No, Your Honor. So I encourage you to do 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 dispute. MR. RANDALL: No, Your Honor, the parties have a few additional motions in limine to try to work out, and we have got the depo designations and exhibit issues to continue to work on. THE COURT: Did you get your claims pared down and your -- I know you didn't get a stipulation filed, but are we close enough both sides are satisfied? MR. RANDALL: Not that -- that is still an open We still think it is In terms of the They reduced the claims to 12. too many, but that is where we are at. stipulation, we haven't reached a stipulation, so that is still an open issue. that gap. MR. CARROLL: That's right, Your Honor. We have I would like to think we could close agreed to cut down on the claims, for all of the obvious and right reasons. Apparently, we are fussing over argument. We are continuing to talk, though, over the language. I mean, we want to -- you know, we want a nonsuit or dismiss with prejudice or whatever. additional concessions. THE COURT: if you can resolve it. Anything further? MR. RANDALL: MR. CARROLL: No, Your Honor. No, Your Honor. Our friends at Apple want some We are still talking with them. Y'all continue to work on that and see 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 THE COURT: All right. Y'all have a good week. We will see you in a couple of weeks if you don't get it resolved. You can check in with my -- I know you know this, but you can check in with my staff and they will let you know the status of the SHURflo case. already know. You are in it. You will Be sure to share that. I told them I would let them know if MR. CARROLL: you are fortunate enough to let us out. (Proceedings concluded.)

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