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)

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

Doc. 481 Att. 2

Exhibit B

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
8:27 a.m.
July 11, 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
[e-mail]

23
24
25

Proceedings taken by Machine Stenotype; transcript was
produced by a Computer.

29
1

channels.

2

in tree.

3

Q.

It specifically says:

Blocked by lower code

If I use this code here, I can't use this one.
Can an orthogonal channel spread with that

4

code circled in red, ever be created in HSDPA at any

5

time?

6
7
8
9

A.

No.

If you did, you would interfere with your

control channels.
Q.

Now, do you recall Dr. Wells testifying that a

256 chip OVSF code includes an orthogonal code and an

10

overlay code?

11

A.

Yes.

12

Q.

Do you agree with that conclusion?

13

A.

No.

14

Q.

And why not?

15

A.

I think it goes against the Court's claim

16

construction, first.

17

said the overlay codes are additional codes.

18

portions of a code or expansions of a code; it's an

19

additional code.

20

Q.

The Court's claim construction
Not

And just so we're clear on what Dr. Wells is

21

calling the overlay code and the orthogonal code, in his

22

view, the first 16 bits of the 256 chip code were the

23

orthogonal code?

24

understood?

25

A.

Is that -- was that what you

That's correct.

30
1
2
3
4
5
6

Q.

And what did you understand the overlay code

to be?
A.

The overlay code was the actual code itself;

in other words, the length 256 code.
Q.

So the overlay code was the entire 256 chips

in Dr. Wells' view.

Is that what you understood?

7

A.

That was my understanding.

8

Q.

He wasn't saying that it was the first 16 bits

9

for the orthogonal code and the remaining 40 were the

10

overlay code.

11

A.

That's not what he testified to, was it?

That's correct.

He was actually using the

12

first 16 bits twice.

13

both the orthogonal code and part of the overlay code.

14
15
16

Q.

He said the first 16 bits were

And do you think it's proper to use the first

16 bits twice to satisfy the overlay code construction?
A.

No.

I think the Court was clear that it's an

17

additional sequence.

18

twice.

19

Q.

You can't count the same sequence

Now, do you recall Dr. Wells testifying that,

20

in his opinion, an OVSF code was equivalent to an

21

orthogonal code and an overlay code?

22

A.

Yes.

23

Q.

And do you agree with that testimony?

24

A.

No.

25

Q.

Why not?

31
1

A.

Well, what the patents call for is this

2

ability to use overlay codes to subdivide existing

3

orthogonal channels, so you can serve more users, take

4

care of more subscribers.

5

The simple use of one code doesn't do that.

6

It doesn't give you that ability to expand the system to

7

cover more people.

8
9
10

And furthermore, using two codes and using one
code, that's substantially different.

13
14

One code uses one

encoder; two codes have two encoders that are required.

11
12

You've just got one code.

So they seem like very different things to me.
Q.

Do you find the differences to be substantial

or insubstantial?
A.

I would say they're substantial, because

15

basically you've got one system that's fixed, it can

16

serve a certain number of users, and that's it --

17

namely, the HSDPA; it's got 15 data channels; it's

18

fixed -- whereas, the other system, the one that's

19

described in the patent is flexible; you can subdivide

20

channels by using additional overlay codes to serve more

21

subscribers.

22

Q.

I think that's a substantial difference.

Now, do you recall Dr. Wells testifying that a

23

256 chip code could be viewed as a 16 chip code

24

multiplied by another 16 chip code.

25

Do you recall that?

32
1

A.

Yes.

2

Q.

And do you agree with Dr. Wells that that

3

means that it's equivalent to an overlay code and an

4

orthogonal code?

5

A.

No.

6

Q.

Why not?

7

A.

Well, first off, he's simply underlying some

8

underlying mathematics that have been well-known for a

9

long time.

10

Secondly, he could have done 16-by-16 or he

11

could have done 4-by-4-by-4-by-4, and then we've got

12

four codes.

13

place if we're going to count them like that.

14

can't be right.

15

Q.

You know, we can have codes all over the
That

That can't be what the claims mean.

And is that type of multiplication, a 16-bit

16

code times another 16-bit code, does that ever happen in

17

HSDPA?

18

A.

No.

19

Q.

Now, were OVSF codes known before Airspan

20

filed for its patents?

21

A.

Yes.

22

Q.

And did we see that earlier?

23

A.

Yes.

24

Q.

Can you explain that?

25

A.

Basically, OVSF codes, the underlying

33
1

mathematics were known for a long time.

2

For example, I summarized them in my first

3

book.

4

the actual structure that's now being used in HSDPA.

5

did that in 1993, several years before the Airspan

6

patents were applied for.

7
8

Klein Gilhousen actually patented the OVSF tree,

Q.

He

And although OVSF codes were known, did the

Airspan inventors describe them in their patents?

9

A.

No.

10

Q.

What did they describe?

11

A.

They described two completely different sets

12

of sequences.

13

that I showed you in one table, and then they had

14

overlay codes in a different table.

15

They had the set of orthogonal sequences

They showed two different sets of codes, one

16

for orthogonal channels, one for subdividing those

17

orthogonal channels.

18
19

Q.

So, in summary, do you believe

HSDPA-compatible base stations use overlay codes?

20

A.

No, they don't.

21

Q.

Do you believe that HSDPA base stations have

22

an overlay code generator?

23

A.

No, they don't.

24

Q.

And do you believe that HSDPA-compatible base

25

stations have the second encoder required by the claims

34
1

of the overlay code patents?

2

A.

No.

3

Q.

Now, I'd like to direct your attention to

4

another aspect of Claim 5, and I have advanced the

5

slide.

6
7

Could you tell us what we're looking at here?
A.

Okay.

This is the portion of the claims that

8

covers selective operability.

9

this a little bit yesterday afternoon.

10

I think we talked about

But basically what it says is:

A second

11

encoder, selectively operable instead of the TDM

12

encoder.

13

So you've got this ability to go back and

14

forth.

Remember, there's two solutions.

15

first solution that uses overlay codes and then the

16

second solution that uses time division multiplexing.

17

What this language tells me is that you can

18

choose either one.

19

but both are available.

20
21

Q.

There's the

You can't do both at the same time,
You can pick one or the other.

And do the patents illustrate how this might

operate?

22

A.

Yes.

23

Q.

So I have put up the Figure 7B of the patents,

24
25

and could you describe what we're looking at here?
A.

Okay.

There's a lot of stuff going on here,

35
1

but I'd like you to note first this switch, 109.

That's

2

the way we draw switches in such block diagrams.

It's

3

basically creating a connection -- let me do that a

4

little better -- it's either creating a connection with

5

this line or with this line (indicating).

6

So the switch is taking the TDM encoder in and

7

out of the circuit.

8

to use the TDM encoder, in which case the overlay code

9

generator won't be doing anything, all right?

10

What that switch allows us to do is

Alternatively, we can switch so that we're not

11

connected to the TDM encoder, in which case the overlay

12

code generator will be in use.

13

selectively operate either in TDM mode or overlay code

14

mode, selectively enable the first solution or the

15

second solution.

16
17
18
19

Q.

That switch allows us to

And do you have an animation that illustrates

how this might work?
A.

Yes.
Okay.

What this shows is we've got two

20

possible solutions:

Add time division multiplexing or

21

add overlay codes.

So now I want to show you how this

22

might work.

23
24
25

We can bring in the TDM encoder, in which case
the second encoder and overlay code generator are off.
So right now, we're using the TD -- TDM

41
1
2

Alcatel-Lucent's base stations in particular?
A.

No.

No.

If you go through the documents and

3

you read what the engineers said about the base

4

stations, you will not find an overlay code generator.

5

You will not find overlay codes.

You won't

6

find the second encoder, and you won't find the

7

selective operability.

8
9

Q.

was about storage.

10
11
12

MR. APPLEBY:
Q.

15

So let's go to Slide 51.

(By Mr. Appleby) And I want to talk about an

additional requirement that's in Claim 5.

13
14

So you had anticipated my next question, which

Could you -- could you tell us what we're
looking at here?
A.

Okay.

This is a portion of the last of the

16

claim elements for Claim 5.

17

the orthogonal code generator -- now remember,

18

there's -- the claim requires two different kinds of

19

code generators.

20

And what this says is that

We've got overlay code generators.

21

here.

22

That's

code generator, which is there (indicating).

23

This is referring back up here to the orthogonal

So what the claim calls for is the orthogonal

24

code generator being a storage arranged to store the set

25

of orthogonal codes.

So what it's saying is that the

42
1

orthogonal codes used to create those original channels

2

are going to be stored; in other words, they'll be in

3

memory, so when we need them we will just read them out

4

of memory.

5

Q.

Okay.

6

A.

That's right.

7
8
9

Restoring a set of orthogonal codes?
It says the set, so that would

be all of them.
Q.

And do the patents discuss storage of the set

of orthogonal codes?

10

A.

Yes, they do.

11

Q.

So let's look at the patent, and this is an

12

excerpt from the '326 patent.

13

Could you -- could you explain what we're

14

looking at?

15

A.

Okay.

This is the '326 patent, and it's on

16

Column 3, Lines 30 through 36.

17

different ways you can obtain these orthogonal code

18

sequences.

19

generator may be arranged to generate orthogonal codes

20

on-the-fly.

21

It's talking about

So what it's saying is the orthogonal code

In other words, whenever you need them, you

22

generate them using predetermined algorithms.

23

actually seen some of those algorithms today.

24
25

We have

However, the orthogonal code generator may be
provided as a storage arranged to store the set of

43
1

orthogonal codes.

2

different approaches.

3

alternatively, you can have a storage arranged to store

4

the set of orthogonal codes.

5

Q.

So it's saying there are two
You could do it on-the-fly, or,

So it's one or the other.

You either generate

6

the codes on-the-fly, or you can store the entire set of

7

orthogonal codes?

8
9

A.
clear.

Yes.

I think it's -- you know, it's really

It's basically saying here is one technique

10

on-the-fly.

11

can do, which is storage arranged to store, et cetera.

12
13
14

Q.

Alternatively, there's another thing you

So if we turn back to Claim 5, which of those

two approaches is the claim directed to?
A.

Well, it's the second approach.

In fact, you

15

can see the language is exactly the same:

16

arranged to store the set of orthogonal codes.

17

Storage

If you go back to the previous slide -- if we

18

can go back to the previous slide -- it stays storage

19

arranged to store the set of orthogonal codes.

20

exact same words.

21
22

Q.

25

So now I'd like to talk about what

Alcatel-Lucent's base stations actually do.

23
24

It's the

And do you recall that Dr. Wells testified
about that during his testimony?
A.

Yes.

44
1
2

Q.

I'd like to show you a question and answer

from Dr. Wells, if I could.

3

So this is testimony from a couple of days

4

ago, and Dr. Wells was asked:

So now let's talk very

5

briefly about where those codes are or where they sort

6

of physically reside in the products.

7

isn't it, that the Defendants' products basically have

8

an on-the-fly system where they generate the codes as

9

they need them?

And it's correct,

Right?

10

Answer:

Yes, they do.

11

Do you recall Dr. Wells giving that testimony?

12

A.

Yes.

13

Q.

And what is he telling us?

14

A.

He's telling us that the accused products do

15

the first solution, the on-the-fly generation of the

16

codes, as opposed to the storage.

17

Q.

Now, have you looked at Alcatel-Lucent's base

18

stations to see if they do the storage element of Claim

19

5?

20

A.

Yes, I have.

21

Q.

And do you agree with Dr. Wells that

22

Alcatel-Lucent's base stations generate on-the-fly?

23

A.

Yes, he's correct about that.

24

Q.

And what did you do to confirm this point?

25

A.

Well, I went to the code.

There's a kind of

54
1

off channels?

2

A.

Yes.

3

Q.

And we have some excerpts from the '327 patent

4

on the next slide.

5
6

Could you explain what they're telling us?
A.

Okay.

If you'll look at this first excerpt,

7

it's from Column 2, Line 16 through 20.

8

taking a code division multiplexed channel out of

9

commission, enhances the interference rejection.

10

It says:

Since

So it's saying once we see that a particular

11

channel is affected by the interference, we're going to

12

take it out of commission.

13

available to anybody.

14

It's not going to be

It's going to be locked out.

We see similar language over here on the

15

right, that a code -- this is from the '327, Column 3,

16

Lines 4 through 11:

17

channel should be removed from use.

18

got this big pool of channels, and we've identified some

19

that are particularly affected by interference.

20

going to take them out of the pool.

21

them.

22

Q.

That a code division multiplexed
So it's as if we've

We're

No one can use

Now, do you recall Dr. Wells testifying that

23

this patent described simply removing a channel from use

24

from one subscriber terminal and then giving it to

25

another subscriber terminal?

55
1

A.

Yes.

2

Q.

Do you agree that that's what this patent

3

describes?

4

A.

No.

5

Q.

And why not?

6

A.

Well, you can see that from the language of

7

the patent.

8

code division multiplexed channel out of commission.

9

What the patent's calling for is taking a

You're not taking something out of commission

10

if I simply take it from one user and give it to

11

another.

12
13

We're locking them out from all users, not
simply reassigning them.

14

Q.

15

patent.

16
17
18

That's not what that means.

So let's turn to the asserted claims of this
I want to look at Claim 11 to start with.
And can you tell us what we have highlighted

here?
A.

Okay.

Claim 11 is on the left, and what I've

19

done is I've highlighted portions of two of the claim

20

elements, the analyzer portion, which I've blown up

21

here, and the channel controller portion, which I've

22

blown up here (indicating).

23

The analyzer is what determines how much

24

interference from other cells is there.

So it says an

25

analyzer for receiving parameters -- I'll skip some of

56
1

words -- an analyzer for receiving parameters indicative

2

of whether that wireless link is subject to interference

3

from signals generated by other cells.

4
5

So this is what determines the other cell
interference.

6

We then have a channel controller right here

7

(indicating) that selectively reduces the number of code

8

division multiplexed channels in the channel pool --

9

that complete set of channels that's available to

10

everybody -- we're going to reduce the number of

11

channels in the pool in order to reduce the effect of

12

interference from the other cells.

13

Q.

Now I'd like to show you a document -- I think

14

you have it in your binder.

15

Exhibit 203?

16

MR. APPLEBY:

Exhibit 2 -- Defendants'

We can bring it up too.

17

A.

Okay.

18

Q.

(By Mr. Appleby) And what is Defendants'

19

Exhibit 203?

20

A.

Okay.

Defendants' Exhibit 203 is the file

21

history.

22

yesterday -- is the conversation -- it's kind of thick.

23

It's a conversation between the inventor and the Patent

24

Office.

25

The file history -- I think I mentioned this

And as I noted yesterday, it's helpful because

69
1

interference from other cells.

2

Q.

Okay.

3
4
5

You simply don't know.

MR. APPLEBY:

So let's turn back to Claim

11.
Q.

(By Mr. Appleby) And have you formed an

6

opinion, Dr. Wicker, as to whether HSDPA-compatible base

7

stations have the analyzer required by Claim 11?

8

A.

Yes.

9

Q.

And what is that opinion?

10

A.

It's not present.

11

Q.

And why do you say that?

12

A.

There is nothing in the handsets that's able

13

to tell how much interference is being -- is coming from

14

adjacent cells.

15

Q.

There's simply no way to do it.

And, therefore, the base station has no

16

information regarding whether a handset is experiencing

17

interference from other cells?

18

A.

19

That's right.
The base station will simply know roughly what

20

the handset thinks it can receive.

21

into that particular number.

22

Q.

23
24
25

Many factors come

So let's move to the last element of Claim 11.
And could you remind us again what the last

element requires.
A.

Okay.

That's the channel controller.

This is

70
1

the portion of the claim that takes that estimate of how

2

channels are being affected by other cell interference

3

and takes some of those cells out of the people, takes

4

them out of commission, and says:

5

be used by anybody in the cell, because of this

6

interference from other cells.

7
8

Q.

These channels cannot

And do HSDPA-compatible base stations satisfy

that element of Claim 11?

9

A.

No.

10

Q.

And why do you say that?

11

A.

We talked a lot about HSDPA and the 15 data

12

channels.

13

within the cell if there's data to send.

14

situation in which one of those channels is locked out,

15

taken out of use because of interference from other

16

cells.

17

Q.

They're going to be allocated to someone
There is no

It simply doesn't happen.
Looking back at this demonstrative that we

18

used earlier in the day, is there anything on this

19

figure that -- that relates to that opinion?

20
21
22

A.

Yes.

What this shows, once again, our 15

codes, they create 15 data channels.
Okay.

Going this way, as we go from TTI to

23

TTI, transmission time interval to transmission time

24

interval, all those channels are being used.

25

being assigned to different users at different times;

They're

71
1

but at no point do we take a channel and say:

We're

2

going to take this out of the -- of the pool.

No one

3

can use it.

4
5
6

In this example, all the channels are being
used all the time.
Q.

So turning back to Claim 11, have you formed

7

an opinion about whether the last element is present in

8

HSDP -- HSDPA-compatible base station itself?

9

A.

Yes.

10

Q.

And what is that opinion?

11

A.

It's not there.

12

Q.

And have you formed an opinion about whether

13

Claim 11 is infringed by HSDPA-compatible base stations?

14

A.

Yes.

15

Q.

And what is that opinion?

16

A.

Well, once again, all the elements have to be

17

present, and I've shown you that these two are not

18

present.

19

infringed.

20
21

Q.

Since they're not present, the claim's not

And your opinion is based on the HSDPA

standard; is that correct?

22

A.

That's correct.

23

Q.

So regardless of who manufactures the

24

HSDPA-compatible base station, be it Alcatel-Lucent or

25

Ericsson, is it your view that that base station would

79
1

not the reason that your clients -- or your opinion that

2

your clients don't infringe, correct?

3

A.

That's correct.

4

Q.

All right.

5

just a minute.

6
7

Well, let's look at DDX 10-41 for

You believe -- I believe you pointed to this
(indicating) as the encoder; is that correct?

8

A.

As the second encoder.

9

Q.

As the second encoder.

10

A.

That's correct.

11

Q.

And this was the first encoder (indicating)?

12

A.

Yes, sir, that's right.

13

Q.

All right.

14
15

MR. WEAVER:
Q.

Let me have Slide 23.

(By Mr. Weaver) All right.

This is DDX 10-37.

16

And do you remember this from your

17

conversations with Mr. Appleby this morning?

18

A.

Yes.

19

Q.

Now, I want to focus down here on overlay

20

code.

21

You said that you were applying the Court's

22

claim construction in your analysis of these claims,

23

which is that the overlay code is an additional code

24

that subdivides an orthogonal channel, correct?

25

A.

That's correct.

80
1

Q.

Well, in fact, sir, you applied a different

2

construction.

3

construction, and you said that an overlay code is an

4

additional code that is separate from the orthogonal

5

code that subdivides an orthogonal channel, didn't you,

6

sir?

You applied -- you've changed the Court's

7

A.

No.

8

Q.

Well, in fact, you did.

9

You said that the

claim requires that it's got to be separate from the

10

orthogonal code.

You said that they could not be part

11

of the same -- that one code could encompass both of

12

them, didn't you, sir?

13

A.

That's correct.

14

Q.

Okay.

15

A.

I am simply disagreeing with regard to the

16
17
18

So you said they had to be separate.

claim construction.
Q.

All right.

Well, I want to go to your -- it

was DDX 10-50.

19

And this is where, for Claim 5, you walked

20

through the bases for your opinions.

21

Do you recall that

from this morning?

22

A.

Yes, I do.

23

Q.

And you said that there's no overlay code

24

generator, no overlay code, no second encoder, and no

25

selectively operable second encoder.

81
1
2

All right.

I'd like to walk through those.

So let's talk about the overlay code generator.

3

What you actually, sir, are saying is that the

4

overlay code generator is not there because it is not

5

separate from the orthogonal code generator.

6

two code generators, don't you, sir?

You want

7

A.

No.

8

Q.

I'm sorry?

9

A.

No.

10

Q.

Well, that's -- that's the position you've

11

taken in this case, is that you need the overlay code

12

generator to be separate from the orthogonal code

13

generator.

They can't both operate together.

14

A.

I don't agree.

15

Q.

Well, sir, what you're trying to do is simply

16

insert into the claim, additional language that doesn't

17

appear in the claim.

18

claim that it is separate from the orthogonal code

19

generator; that they have to be separate generators.

20

You're trying to insert into the

And the reason for that is because HSDPA uses

21

one code generator, doesn't it?

It generates one set of

22

codes from the same generator, doesn't it, sir?

23

A.

That's correct.

24

Q.

Well, let's look at overlay code.

25

Again, your

construction of overlay code is that it has to be

82
1

separate from the orthogonal code.

2

shoehorn that language into the claim, even though it

3

doesn't appear.

4
5

So you'd like to

So the overlay code has to be separate from
the orthogonal code.

That's your approach?

6

A.

I do agree that it has to be separate.

7

Q.

Okay.

Yes.

Let's look at the second encoder.

You

8

want the second encoder to be separate from the first

9

encoder.

10

Again, you need to see two different encoders

11

because HSDPA uses one encoder, and the Alcatel-Lucent

12

base stations products use one encoder.

13

you want to shove into the claim language that it is a

14

separate -- that the second encoder is separate from the

15

first encoder, don't you, sir?

16

A.

I don't agree.

17

Q.

So then -- all right.

And so, again,

18

the next -- to the next point.

19

All right.

Let me -- let me go to

Let's look at your -- the

20

orthogonal code generator is a storage arranged to store

21

the set of orthogonal codes.

22
23

And this is DDX 10-53.

Do you remember

talking about that with Mr. Appleby?

24

A.

Yes, I do.

25

Q.

And actually, during your testimony, you said

83
1

that the orthogonal code generator is a storage arranged

2

to store all the orthogonal codes at the same time,

3

didn't you?

4

A.

Yes.

5

Q.

That is your testimony?

6

A.

Yes, it is.

7

Q.

So you'd like to shoehorn that language into

8

the -- into the claim itself, don't you, sir?

9

A.

No.

10

Q.

Well, your testimony was --

11
12
13
14

MR. WEAVER:

And can we pull up -- can we

pull up the slide with his testimony in it, please?
Q.

(By Mr. Weaver) All right.

And this was from

yesterday, sir.

15

You said that:

At no point did I see any

16

memory that would store all the orthogonal codes at the

17

same time.

18

A.

That's correct.

19

Q.

So you do want the "at the same time language"

20
21
22
23
24
25

in the claim, don't you, sir?
A.

I don't agree that we're adding it.

I think

that's what the language means.
Q.

I understand that's your opinion, sir.

that language is being added under your opinion.
A.

(No response.)

But

84
1
2

Q.

All right.

to the three --

3
4
5

Let's talk about -- let's go back

MR. WEAVER:

Can you pull up Claim --

sorry.
Q.

(By Mr. Weaver) Let's talk about the '327

6

patent for a minute, and I want to walk you through what

7

you discussed with Mr. Appleby.

8

Now, you argue that the Alcatel-Lucent

9

products don't infringe the '327 patent because the CQI

10

doesn't measure essentially only intercell interference.

11

Isn't that what you're arguing?

12

A.

Yes.

13

Q.

And it doesn't just need to be indicative of.

14

So we can strike that language.

15

measuring whether the wireless link is subject to

16

interference solely from signals generated by other

17

cells.

18
19

It needs to be only

That's really your opinion, isn't it, sir?
A.

It is my opinion that the analyzer has to

20

receive parameters indicative of, and I'm simply

21

interpreting that word indicative.

22
23
24
25

Q.

So you interpreted the word "indicative of" to

mean only measuring the interference from other cells?
A.

That's right.

from other cells.

It indicates the interference

85
1

Q.

And you went through testimony where you said

2

there's interference that's caused by other things,

3

correct?

4

A.

That's correct.

5

Q.

There's intercell interference.

6

in an elevator.

7

It might be

You said those things could happen.

But, sir, if you hold all of those things

8

constant and the interference from another cell changes,

9

you'd agree that the CQI that's measured would change,

10
11
12

don't you?
A.

If everything was kept constant, including the

type of phone, the sensitivity of the phone --

13

Q.

Correct.

14

A.

-- the only thing that changed was other cell

15

interference, then you're correct.

16

change only because of the other cell interference

17

change.

18

Q.

19

All right.

Yes, the CQI would

So let's look at what happens as a

result of that.

20

Now, you've said that the claim requires that

21

you selectively reduce the number of code division

22

multiplexed channels in the channel pool from the entire

23

cell.

24
25

So no one in the cell can use those channels;
that's your opinion?

96
1
2
3
4

A.

Yes, I did.

In one of the patents, that is

true.
Q.

In the '326 patent, that's what it talks

about --

5

A.

That's correct.

6

Q.

-- doesn't it?

7
8

In the '819 patent, it talks about it that way
too, doesn't it, sir?

9

A.

Yes, it does.

10

Q.

And in the '211 patent, it talks about it that

11

way, doesn't it, sir?

12

A.

Yes.

13

Q.

So it wasn't just one of the patents; it's all

14

three of the patents that deal with the overlay code

15

generation.

16

A.

17
18

Well, they certainly all three deal with

overlay codes, that's correct.
Q.

So is your opinion that the inability to

19

modify a channel, such as Channels RW 14 or RW 15 from

20

Figure 15A does not fall within the scope of the

21

selectively operable limitation we've been talking

22

about?

23

A.

No.

24

Q.

It's not your opinion that that's the case.

25

A.

No.

It wouldn't be just one channel; it would

97
1

be the entire system.

2

Q.

I'm sorry?

3

A.

In other words, the fact that one channel

4

can't be modified doesn't mean that another channel can

5

be modified.

6

language, as opposed to this figure, says that we have a

7

choice.

8

the second solution.

9
10
11

The selective operability in the claim

We have a choice between the first solution and

So we get one or the other, according to the
claim language.
Q.

But here -- I mean, you're not suggesting that

12

these first 15 channels are not subject to TDM

13

techniques?

14

A.

They can be shared in different ways among

15

different users.

16

as construed by the Court.

17
18
19

Q.

I would not call them TDM techniques

Sir, are these time division multiplex

channels, 0 through 15?
A.

They may be used by different users at

20

different times, but they don't cycle in a frame

21

structure.

22

Q.

So your position is, even though the lawyers

23

have talked about this during opening and throughout

24

this case that these channels are subject to time

25

division multiplexing, that they aren't subject to time

98
1

division multiplexing?

2
3
4
5

Is that your position?
A.

I'm sorry.

question.
Q.

You'll have to repeat the

You gave me both sides.
Is it your position that these channels are

6

not subject -- channels 0 through 14 are not subject to

7

time division multiplexing?

8
9
10
11

A.

They are not time division multiplexed as

construed by the Court.
Q.

Sir, you've read the Court's claim

construction opinion in this case.

12

A.

Yes, I have.

13

Q.

Okay.

And with respect to overlay codes,

14

you'd agree with me that you can apply the overlay code

15

before you apply the orthogonal code, correct?

16

A.

That's correct.

17

Q.

And you could apply the overlay code after you

18

apply the orthogonal code, correct?

19

A.

That's correct.

20

Q.

Doesn't matter which order you do it?

21

A.

That's correct.

22

Q.

And, in fact, you can apply it simultaneously,

23

can't you?

24

A.

That's correct.

25

Q.

And -- and that's the -- the construction

116
1

A.

I believe that's correct.

Yes.

2

Q.

And we can go all the way down to 256 down to

3

these channels, all right, and the first 16 bits are

4

going to be those 16 bits?

5

A.

That's correct.

6

Q.

So 256 bits long, the first 16 bits are going

7
8
9
10

to be the 16 bits for this spreading factor 16 code?
A.

The first 16 bits, the length 256 sequence,

the 128 that you indicated in the 64 will be the same
bits that comprise the spreading factor of 16.

11

Q.

Okay.

12

A.

The spreading factors are different, even

13

though they have different time sequences, et cetera.

14

just want to be sure that's clear.

15
16

Q.

Yes.

I

The spreading factors will be different.

That's the whole point, right?

17

A.

Yes, exactly.

18

Q.

You want to spread that data out.

You're

19

getting a smaller portion of the pipe, so less data can

20

go through, which is why we use that for control

21

channels, isn't it?

22

A.

Exactly.

We want the control channels to be

23

more reliable, so we trade off data-rate for spreading

24

factor.

25

Q.

Exactly.

What we don't want is to be sending

117
1

the high -- that can't be used for high-speed downlink

2

data, because it's frankly too small of a pipe, isn't

3

it, at that point?

4
5
6

A.

I think it would be more accurate to say it's

simply too slow.
Q.

The data rate is too slow.

Too slow.

7

Let me go back to the overlay code.

8

Now, you agree with me that the basis of your

9

opinions is that the overlay code must be separate from

10
11
12
13

the orthogonal code.
A.

My use of the construction was for additional.

I understood additional to mean a separate sequence.
Q.

So you agree with me, your opinions are based

14

upon your view of the Court's construction that an

15

additional code must be a separate code.

16

A.

That's correct.

17

Q.

And so if the Ladies and Gentlemen of the Jury

18

don't agree with you, then your opinions are not

19

appropriate in this case.

20

A.

If they feel that I'm not using the

21

construction properly, then they can -- they can take

22

the consequences -- excuse me -- conclude from that that

23

I'm not doing it properly.

24
25

Q.

All right.

Thank you.

MR. WEAVER:

Your Honor, Plaintiffs move

118
1

Defendants' Exhibit 173.

2

THE COURT:

3

MR. APPLEBY:

4

THE COURT:

5

MR. WEAVER:

6

THE COURT:

7

No objection.

Be admitted.
Thank you, Your Honor.
All right.

Any further

redirect?

8

MR. APPLEBY:

9
10

Any objection?

Just briefly.

REDIRECT EXAMINATION
BY MR. APPLEBY:

11

Q.

You were asked some more questions about the

12

overlay code.

13

code that subdivides an orthogonal channel?

Has Dr. Wells pointed to an additional

14

A.

No.

15

Q.

And why is that?

16

A.

There isn't one.

17

Q.

There's only a single OVSF code used on each

18
19
20
21
22

channel in HSDPA; isn't that right?
A.

That's correct.

One channel/one code.

There

are no additional codes.
Q.

Now, just a couple of questions on CQI.
You were asked a question about if we hold all

23

other things constant and we have interference from

24

other cells, then that CQI will be indicative of other

25

cell interference.

137
1
2

Also asserted against Ericsson is the '327,
which is that other cell interference patent.

3

Against Sony Mobile, there's just one patent

4

asserted against them, and that's the '211, which we've

5

also looped into being an overlay code patent.

6

Q.

Could you describe for the jury what

7

investigation you did to determine whether there was any

8

infringement by the Ericsson or Sony Mobile products?

9

A.

Sure.

The first thing I did is, I got the

10

patents, got the file histories for the patents, read

11

and studied those.

12

documents, the depositions, the pleadings, the expert

13

reports, and especially the claim construction order.

14

Then I proceeded to the court

I then went to get technical documents to

15

further my opinions and support my opinions, such as

16

standards documents, published articles.

17

And then finally, I looked at product

18

information, such as product documentation from Sony and

19

Mobile -- Sony Mobile and Ericsson source code and

20

schematics.

21

Q.

22

And approximately how many hours have you

spent doing this investigation?

23

A.

Over a hundred hours.

24

Q.

And over what period of time?

25

A.

Since April last year.

138
1

Q.

April of 2012?

2

A.

Yes.

3

Q.

Now, I'm sure the jury doesn't -- wouldn't

4

appreciate going all the way through all of the details

5

of your analysis, but could you summarize the

6

conclusions that you've reached?

7

A.

8
9

Sure.
My conclusions are that the Ericsson base

stations do not infringe the Airspan patents; and we're

10

talking about the '326 patent here, the '819, and the

11

'327.

12

It's also my opinion that the Sony Mobile

13

phones do not infringe the Airspan patent, the '211

14

patent.

15

Q.

And is it your understanding that the Ericsson

16

base station products and the Sony Mobile products

17

comply with the HSDPA standard?

18

A.

Yes, it is.

19

Q.

Is there any dispute about that in this case?

20

A.

I don't believe so.

21

Q.

Now, were you present in the courtroom for all

22

of Dr. Wicker's testimony?

23

A.

Yes, I was.

24

Q.

And based on the independent investigation

25

that you performed, do you disagree with any of the

139
1

opinions that Dr. Wicker reached regarding

2

HSDPA-compatible products?

3

A.

No, I do not.

4

Q.

And are -- in fact, are Dr. Wicker's opinions

5

consistent with those that you made as part of your

6

independent investigation?

7

A.

Yes, they are.

8

Q.

And, in fact, have you ever even discussed

9

your opinions with Dr. Wicker?

10

A.

Never.

11

Q.

And when was the first time you met

12

Dr. Wicker?

13

A.

Here in the courtroom.

14

Q.

Before we go further, is it possible for

15

Ericsson or Sony Mobile to comply with the HSDPA

16

standard and infringe the HS -- or the Airspan patents?

17
18
19

A.

Yes.

I'm sorry.

I misunderstood your

question.
Q.

Okay.

Can Ericsson and Sony Mobile comply

20

with the HSDPA standard and infringe the Airspan

21

patents?

22

A.

No, they cannot.

23

Q.

And why -- why is that?

24

A.

Because the HSDPA standards describe a system

25

that is fundamentally different than what's claimed in

140
1
2

the Airspan patents.
Q.

Well, with respect to the Ericsson base

3

stations, can you explain how the HSDPA standard is

4

different from the asserted claims of the Airspan

5

patents?

6

A.

7

Sure.
We've already heard this before, but briefly,

8

for the overlay code patents on the Ericsson base

9

station -- we're talking about the '326 and '819 -- I

10

could find no overlay codes, no overlay code generator,

11

and no second encoder for applying the overlay code in

12

the HSDPA standards.

13

And, additionally, for the '327 patent, I

14

could find no receiving parameters indicative of

15

interference from other cells or removing channels based

16

on interference from other cells.

17

Q.

Do Ericsson's base stations use overlay codes?

18

A.

No, they do not.

19

Q.

And did you determine that -- how did you

20
21
22
23

determine that?
A.

By looking at the documentation, looking at

the source code, looking at the schematics.
Q.

And do the Ericsson base stations have the

24

ability to analyze parameters indicative of interference

25

generated by signals from other cells?

141
1

A.

No, they do not.

2

Q.

Now, did you -- could you summarize your

3
4

opinions for the Sony Mobile phones?
A.

5
6

Sure.
For the Sony Mobile phones, it's a very

similar slide.

7

For the '211 patent, I could find no overlay

8

codes, no overlay code generators, and no second decoder

9

for applying the overlay codes in the Sony Mobile

10
11
12
13
14
15

products.
Q.

And, again, what type -- what investigation

did you do with respect to the Sony Mobile phones?
A.

Product documentation, reviewing the

standards, looking at schematics and source code.
Q.

Well, does Sony -- does Sony Mobile

16

manufacture the internal components of its phones that

17

actually implement the HSDPA standard?

18

A.

No, they do not.

19

Q.

Where do they get those components?

20

A.

They get them primarily from Qualcomm and some

21
22
23
24
25

others from ST Ericsson.
Q.

And are those computer chips that they

purchase?
A.

Yes.

They can purchase a small chip that does

that functionality.

142
1
2

Q.

are asserted against the Ericsson base stations.

3
4
5

Let's first take a look at the patents that

Now, can you characterize the -- the claims of
the overlay code patents that you mentioned earlier?
A.

6

Sure.
So we've all seen this before.

The overlay

7

code patents are the '326 patent, the '819 patent, as

8

far as the transmitter, and the asserted claims in those

9

are 2, 5, and 9 for the '326 patent and Claim 11 for the

10

'819 patent.

11

Q.

Now, this is a slide similar to what we've

12

seen before, correct?

13

the various parts of the '326 patent, Claim 5.

14

A.

Sure.

But could you briefly describe

So just looking at these particular

15

areas of Claim 5 of the '326 patent, we have that top

16

portion where we're talking about the overlay code

17

parts.

18

We -- you know, we're talking about the

19

orthogonal code parts.

20

generator, an orthogonal code, and a first encoder for

21

applying that orthogonal code.

22

We have the orthogonal code

Later we have the overlay code portion of the

23

claim where we're talking about an overlay code

24

generator, an overlay code, and a second encoder for

25

applying that overlay code.

148
1

subdivide a channel.

2

Wi-LAN has been pointing to these control

3

channels here in the bottom right; but as you can see,

4

as soon as you assign a control channel lower in the

5

tree, everything else above it is blocked.

6

use that for assignment.

7

Q.

You cannot

And so when you say you can't use it for

8

assignment, are you saying there's not a channel that

9

can be subdivided?

10
11
12
13

A.

There's not a channel that can be subdivided

in an OVSF tree.
Q.

And is that something that the Court's claim

construction requires?

14

A.

Yes, it is.

15

Q.

And how is that?

16

A.

Because we have a Markman order stating that

17

the overlay code is an additional code to subdivide an

18

orthogonal channel.

19

Q.

20

Let's take a look at the claim language.
Based on your investigation, did you reach

21

some conclusions with respect to the Ericsson base

22

stations?

23

A.

Yes, I did.

24

Q.

And what did you determine?

25

A.

That the Ericsson base stations accused do not

149
1

infringe the overlay code patents.

2

Q.

And why is that?

3

A.

Because, first of all, there's no overlay

4

code.

5

Q.

Anything else?

6

A.

There's also -- because there's no overlay

7

code, there's no overlay code generator.

8

Q.

Anything else?

9

A.

And since there's no overlay code, you don't

10
11
12

have a second encoder for applying the overlay code.
Q.

Now, you heard Dr. Wicker talking about a

couple of other elements of Claim 5 of the '326 patent.

13

A.

Yes, I did.

14

Q.

And specifically, he was pointing to the

15

selectively operable language.

16

A.

Yes, he was.

17

Q.

Do you agree with Dr. Wicker's opinion

18

regarding the selectively operable language?

19

A.

Yes, I do.

20

Q.

How about the opinions that Dr. Wicker gave

21

with respect to the storage element?

22

A.

I agree with those also.

23

Q.

Now, are there other claims asserted against

24
25

Ericsson base stations from the '326 patent?
A.

Yes, there are.

They are Claim 2 and Claim 9.

150
1

Q.

And have you included Claim 1 just for

2

completeness?

3

A.

Yes.

Claim 2 is one of those dependent

4

claims, which means that we have to look to another

5

claim to understand what's required in Claim 2.

6
7

Q.

But Claim 1 is not asserted in this case,

right?

8

A.

That's my understanding.

9

Q.

So what did you conclude about the -- all of

10
11

Yes.

the overlay code patents in the '326 patent?
A.

That, again, they're missing this key element

12

at least, which is an overlay code, an overlay code

13

generator, and a second encoder for applying the overlay

14

code.

15

Q.

And what conclusions did you reach regarding

16

whether the Ericsson base stations infringe these

17

claims?

18

A.

19
20
21

For at least those reasons, they cannot

infringe these claims.
Q.

Now, is there another claim that's been

asserted that also includes overlay code?

22

A.

Yes, there is.

23

Q.

What is that?

24

A.

That's Claim 11 of the '819 patent.

25

Q.

And did you reach conclusions about whether

153
1

example of one of the textbooks you've looked at?

2

A.

Sure.

This textbook here called 3G Evolution

3

was written by four Ericsson engineers, and it discusses

4

CQI.

5

Q.

6
7

I think that book has been designated DX 283.
How did you -- did you rely on that book in

doing your investigation?

8

A.

Yes.

9

Q.

Okay.

10
11

And what does the 3G Evolution book say

about the calculation of the channel quality indicator?
A.

It says that the CQI -- generally, the CQI

12

represents the instantaneous channel conditions.

It's

13

what the cell phone is receiving at this particular

14

time.

15

Q.

Does it explicitly state the channel quality?

16

A.

Well, it goes on to say the CQI is not an

17

explicit indication of channel quality.

18

before, it's actually a request from the cell phone to

19

the cell phone tower saying give me this much data; I

20

believe I can handle this much data accurately.

21

But as we heard

So it just continually requests data over and

22

over again.

23

Q.

Does the CQI provide any information to the

24

base station as to why the CQI has the particular value

25

it does?

154
1
2
3
4

A.

No, it does not.

It's just a number from 0 to

Q.

Does it indicate whether a particular wireless

30.

link is experiencing intercell interference?

5

A.

No, it does not.

6

Q.

Does it indicate whether a particular wireless

7

link is subject to an obstruction?

8

A.

No, it does not.

9

Q.

Does it indicate whether a particular wireless

10

link is subject to interference from within the cell?

11

A.

No, it does not.

12

Q.

Does it indicate anything about the reasons

13

why it has the particular value it has?

14

A.

No, it does not.

15

Q.

Now, can the CQI be affected by the design

16
17
18
19
20
21

or -- of the mobile phone itself?
A.

Yes.

As I stated earlier, how advanced your

receivers are, can affect your CQI value.
Q.

Did you look at any Ericsson documentation

that actually explains that?
A.

22

Sure.
So this is the HSDPA User Plane document from

23

Ericsson.

24

about the calculation of channel quality estimate.

25

And here in Section 8.1, they're talking

The important thing to see here is that the

155
1

CQI, first of all, is a recommended amount of data that

2

you want to send down, such that the UE thinks he's

3

going to receive the data with only a 10-percent

4

probability of loss.

5

The base station, which is what we're talking

6

about here, perceives the UE, which is the mobile, as a

7

black box.

8

means we're not going to go look in and figure out

9

what's going on there.

10

And it's kind of an engineering term that

A black box is something you don't -- kind of

11

imagine it as a teenager's bedroom.

12

know what's going on in there.

13

get the request out for the data, and you're going to

14

operate on that.

15

You don't want to

All you want to do is

And they go on to state that even a good

16

receiver can report higher CQI than a bad receiver, even

17

if you're in the same channel conditions.

18

Q.

So that would mean if two phones were

19

experiencing the exact same amount of intercell

20

interference, they could report different CQIs?

21

A.

Yes, they could.

22

Q.

And so in that way, does the CQI indicate

23

whether either of those phones is experiencing

24

interference from other cells?

25

A.

No, it does not.

160
1

no overlay code, no overlay code generator, and no

2

second decoder, the Sony Mobile HSDPA phones do not

3

infringe the asserted claims of the '211 patent.

4

Q.

Thank you.

Thank you, Dr. Olivier.

5

MR. WYNNE:

Pass the witness.

6

THE COURT:

All right.

7

MR. BORGMAN:

8

Yes, Your Honor.

Thank

you.

9
10

Cross-exam?

CROSS-EXAMINATION
BY MR. BORGMAN:

11

Q.

Good morning, Dr. Olivier.

12

A.

You barely made it.

13

Q.

Good afternoon, Dr. Olivier.

14

It's almost noon.

Do you remember meeting me about 10 years ago?

15

A.

No, I do not.

16

Q.

It's been a number of years.

17
18

We met in a

different patent case, the NetIQ case.
A.

Okay.

19
20

I'm sorry.

[Laughter]
Q.

(By Mr. Borgman) I remember you.

21

[Laughter]

22

A.

I apologize.

23

Q.

(By Mr. Borgman) You know, I'm happy to be

24

forgettable.

25

Now, we've heard testimony all morning from

161
1

both you and Dr. Wicker on a number of points.

2

putting the '211 patent to the side, the one that

3

relates to the mobile phones, is it fair to say that you

4

and Dr. Wicker essentially have the same opinions with

5

respect to the reasons why the Ericsson and

6

Alcatel-Lucent base stations do not infringe the base

7

station patents?

8
9

A.

I don't know all of his opinions.

And with

The only

ones I know are the ones that he presented here today.

10

Q.

And you agree with those, right?

11

A.

I'm sorry?

12

Q.

And you agree with those?

13

A.

Yes, I agree with those.

14

Q.

And those are the ones you went through in

15

your testimony, right?

16

A.

That is correct.

17

Q.

All right.

Now, so you agree with Dr. Wicker

18

that in the definition of overlay code, when it says

19

additional, that the Court's claim construction means

20

separate, correct?

21

A.

I agree with Dr. Wicker that the Court's claim

22

construction, when you apply ordinary meaning to it, it

23

requires a separate code.

24
25

Q.

All right.

And, again, like Dr. Wicker said

when he was on the stand, if the jury disagrees with

162
1

your reading of that term, then the jury's free to

2

disregard your opinions, correct?

3

A.

The opinions regarding the overlay code, yes.

4

Q.

Now, Dr. Wicker also, I believe, said this

5

morning that you could use the same hardware and

6

software to provide a first encoder and a second encoder

7

for an orthogonal code generator and overlay code

8

generator.

9
10
11
12
13

Do you remember that testimony?
A.

I think you're confused.

I don't understand

your question.
Q.

All right.

Do you remember the testimony

about the first encoder and the second encoder?

14

A.

Yes, I do.

15

Q.

All right.

You remember the testimony about

16

the orthogonal code generator and the overlay code

17

generator, right?

18

A.

Yes, I do.

19

Q.

All right.

Now, there was testimony about

20

whether those have to be separate; in other words,

21

separate hardware, separate software for the first

22

encoder and the second encoder.

23
24
25

A.

Okay.

So we're talking about the first

encoder and second encoder?
Q.

Correct.