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. 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 shea_sloan@txed.uscourts.gov 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.

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