WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 481

MOTION for New Trial CONCERNING THE NON-INFRINGEMENT OF CERTAIN CLAIMS OF U.S. PATENT NOS. 6,088,326; 6,222,819; 6,195,327 AND 6,381,211 by WI-LAN Inc.. (Attachments: # 1 Exhibit A - Trial Transcript (July 9, 2013 Morning Session), # 2 Exhibit B - Trial Transcript (July 11, 2013 Morning Session), # 3 Exhibit C - Trial Transcript (July 11, 2013 Afternoon Session), # 4 Exhibit D - Trial Transcript (July 10, 2013 Afternoon Session), # 5 Exhibit E - PX-1 - U.S. Patent No. 6,088,326, # 6 Exhibit F - PX-2 - U.S. Patent No. 6,195,327, # 7 Text of Proposed Order)(Weaver, David)

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WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al Doc. 481 Att. 1 Exhibit A Dockets.Justia.com 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION 2 3 WI-LAN, INC. ) 4 DOCKET NO. 6:10cv521 -vs- ) 5 Tyler, Texas 8:47 a.m. July 9, 2013 6 ALCATEL-LUCENT USA, INC., ET AL 7 ****************************************************** 8 WI-LAN, INC. ) ) DOCKET NO. 6:13cv252 9 10 -vsHTC CORPORATION, ET AL ) ) 11 12 13 14 15 TRANSCRIPT OF TRIAL MORNING SESSION BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY 16 17 18 19 20 21 22 COURT REPORTERS: MS. SHEA SLOAN MS. JUDY WERLINGER 211 W. Ferguson Tyler, Texas 75702 shea_sloan@txed.uscourts.gov 23 24 25 Proceedings taken by Machine Stenotype; transcript was produced by a Computer. 99 1 same structure, right? We have a separate overlay code 2 generator, a separate orthogonal code generator, and two 3 separate encoders, right? 4 A. In this example, yes. 5 Q. Okay. And if we look at -- I didn't 6 color-code these -- on the receiver side, we see 7 orthogonal code generator, overlay code generator, and 8 two de-spreaders, right? 9 A. That's right. 10 Q. Okay. Yes, we do. If we look at the next figure, we see 11 the same thing, same structure: 12 generator, overlay code generator, two de-spreaders on 13 the receive side, right? 14 A. That's right. 15 Q. Okay. Orthogonal code In this example, we do. If we go to Figure 12, we see another 16 example. We see overlay code -- it's a little different 17 format. 18 orthogonal code, separate place, and two separate 19 encoders, right? Overlay code over here, RW code, which is the 20 A. Yes, we do. 21 Q. Okay. In fact, we could go through every 22 example in the patent, and that's the structure we're 23 going to see, right? 24 A. In those embodiments, yes. 25 Q. In every one of the embodiments in the patent, 100 1 that's what we're going to see, right? 2 A. Yes. 3 Q. Okay. 4 And, in fact, the patent even lists examples of how the code works. 5 So if we look at Column 10, right -- and 6 that's how patents are organized, in columns and line 7 numbers, right? 8 It says Column 10 of the '326 patent? 9 A. Yes. 10 Q. If we look down below, we see it's got a 11 table, and this is the RW codes or the orthogonal codes, 12 right? 13 A. Yes, that's right. 14 Q. All right. And then you have a separate table 15 with additional codes for the overlay, which we find in 16 Column 15, Table 2, the overlay codes, a separate table 17 of codes for the overlay, right? 18 A. That's right. 19 Q. All right. In this example, we do. And the way that would work, just 20 like the structure we saw in the claims, is that you 21 would first use -- or you would use the orthogonal 22 codes, and then you would use the overlay codes in 23 whatever order you want, right? 24 25 MR. BORGMAN: we approach? Objection, Your Honor. May 101 1 THE COURT: Yes, you may. 2 (Bench conference.) 3 MR. BORGMAN: This is a limine issue, 4 Your Honor. 5 suggesting that the claims require something different 6 than the claim construction or saying things that are 7 contrary to the claim construction order. 8 9 We've got a limine motion and order about Mr. Arovas's question just went to the order in which the overlay codes and the orthogonal 10 codes have to be applied. 11 that they can be applied simultaneously; they do not 12 have to be applied in seriatim. 13 MR. AROVAS: And in your order, it says I say in any order, but I'm 14 happy to reask the question and say simultaneously. 15 That wasn't the intent. 16 17 THE COURT: Reask the question. 18 19 All right. (Bench conference concluded.) Q. (By Mr. Arovas) Okay. So going back to what 20 we were talking about, so when we look at the examples 21 in the specification, you see there's a set of 22 orthogonal codes, a different set of overlay codes; and 23 you can apply them in any order or simultaneously, but 24 there's two sets, right? 25 A. In -- in this embodiment, yes. 102 1 Q. Okay. And, in fact, if we were to go through 2 the entire specification, we wouldn't find any example 3 that uses one code to both contain the orthogonal and 4 the overlay code, right? 5 6 7 A. Well, there's examples in there about how codes can be mixed together. Q. Okay. Here's my question, okay? It's a fact 8 that there isn't any example or embodiment in any of the 9 patents-in-suit that disclose the orthogonal code and 10 11 12 13 the overlay code to be a single code, correct? A. The answer to that is no -- I beg your pardon. The -- you are correct. Q. I'm correct. There isn't a single example 14 that uses the orthogonal code and the overlay code to be 15 a single code, right? 16 17 18 A. That's right. There's examples of how you can mix codes together, but you are correct. Q. Okay. So now let's turn to some of your 19 allegations where you compare the claims to -- and I'll 20 just leave this up here in case we need to refer to 21 it -- when you compare the claims to the accused 22 products, okay? 23 So first let's talk about Alcatel-Lucent. 24 And so I think you explained on direct, as you did in 25 your deposition, that you were relying on the same 114 1 It's a fact that when this single OVSF code goes into 2 this single structure that it performs a single 3 spreading operation, right? 4 5 6 A. No, no. You're -- you're mischaracterizing Q. Well, let me ask it again. it. 7 Is it the case that in the Ericsson products, 8 that there is a single spreading operation performed 9 with the OVSF code? 10 A. No, there's not. 11 Q. Okay. 12 MR. AROVAS: Let's play Clip 34. 13 (Video playing.) 14 QUESTIONS: Now, the Ericsson accused 15 products spread a data item to be transmitted in a 16 single spreading operation, correct? 17 ANSWER: There is a single spreading 18 operation that includes the functions of the first 19 encoder and second encoder, as outlined in the claims. 20 21 QUESTIONS: operation; is that fair to say? 22 23 ANSWER: Whilst it includes both of those separate functions, it is a single spreading operation. 24 25 But it's a single spreading (End of video clip.) Q. (By Mr. Arovas) Okay. So isn't it the case, 115 1 under oath, in your deposition, you said that it's a 2 single spreading operation? 3 4 5 A. Right? I did, but I tried to put that in context on my -Q. I understand your position that one can be 6 two, okay; and that you say that there's two functions. 7 But let's just talk about the spreading operation. 8 It is a fact that this single structure performs a 9 single spreading operation with a single OVSF code; 10 11 12 13 isn't that right? A. I feel uncomfortable answering this as a yes or no, but yes. Q. Okay. And, in fact, if we go to the 14 Alcatel-Lucent product, you would see the same thing: 15 Single structure, single OVSF code, single spreading 16 operation, correct? 17 A. Performing the -- 18 Q. I understand your position, that two-in-one, 19 but let's just -- but let's just talk about how the 20 products work. 21 Single structure, single OVSF code, single 22 spreading operation in the Alcatel-Lucent products, 23 correct? 24 25 MR. BORGMAN: approach? Your Honor, may we 116 1 THE COURT: 2 (Bench conference.) 3 MR. BORGMAN: 4 Yes, you may. We are getting back to the motion in limine involving the simultaneous operation. 5 In the Court's claim construction, the 6 Court held that the claims do allow simultaneous 7 operations. 8 Mr. Arovas' question says I understand 9 that's your position, but he's suggesting that that's 10 not allowed by the Court. 11 MR. AROVAS: That's not our position at 12 all. Our position is there are two encoders. 13 two sets of codes. 14 time or not, is not the point. 15 16 Whether you apply them at the same The point is, it's one code, one encoder applied once. 17 18 There are I think it's fair cross-examination. THE COURT: Okay. You can clean it up on cross-examination. 19 MR. BORGMAN: 20 (Bench conference concluded.) 21 Q. All right. (By Mr. Arovas) Okay. Let's pick up where we 22 left off, and I want to be crystal-clear: 23 I'm not talking about order here. 24 You can use one code first, another code -- 25 you can use the orthogonal code first and the overlay 117 1 codes second; the overlay code -- I'm sorry -- the 2 orthogonal first -- you can use the orthogonal first, 3 the overlay second; the overlay first, the orthogonal 4 second. 5 You can do them simultaneously. I'm not suggesting anything about order, okay? 6 A. Okay. 7 Q. Okay. But what we know is for both the 8 Ericsson and the Alcatel-Lucent products, as well as the 9 handset products, the structure that's the 10 encoder/decoder, single structure, uses single OVSF 11 code, and a single spreading operation, correct? 12 A. Well, yes. 13 Q. Thank you. 14 So now let's talk very briefly about where 15 those codes are or where they sort of physically reside 16 in the products. 17 Defendants' products basically have an on-the-fly system 18 where they generate the codes as they need them, right? And it's correct, isn't it, that the 19 A. Yes, they do. 20 Q. Okay. So whether you're talking about the 21 Alcatel-Lucent products, the Ericsson products, or the 22 HTC or Sony Mobile products, it's a fact that none of 23 those products store at any one point in time the entire 24 set of orthogonal codes, correct? 25 A. I mean, that's not required by the claims,

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