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)

Download PDF
WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al Doc. 481 Att. 3 Exhibit C 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 1:06 p.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 AFTERNOON 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. 19 1 HSDPA functionality is a small part of that, but it is 2 in the Qualcomm chipset. 3 4 Q. And there's no dispute between the parties about that, is there? 5 A. No. 6 Q. Okay. 7 8 9 10 11 Does -- does HTC modify the Qualcomm chipset that goes into its phones? A. No. It is my understanding that they buy the chipset from Qualcomm and they put them in their phone and that's the process. Q. Okay. If the accused functionality is in the 12 Qualcomm chipset, what did you do to figure out how the 13 chipset works? 14 A. So we have to go to what happens in the 15 Qualcomm chipsets. 16 that I looked at, including -- and we have a slide on 17 that. 18 And so there's a lot of documents So what I looked at is the source code. We 19 looked at the Qualcomm engineers' depositions. 20 at the Qualcomm spec sheets. 21 information, most of it is confidential, that's provided 22 by Qualcomm that I was allowed to go through. 23 I looked There was a lot of You signed the protective order, and then you 24 can read all that. So it's kind of exciting, because 25 normally most people don't get to see this. 20 1 Q. Maybe for you. 2 [Laughter] 3 A. Sorry. It was for me. 4 Q. (By Mr. Bader) After examining the claims of 5 the '211 patent and comparing them to the Qualcomm 6 chipsets, did you come to any conclusions on whether 7 HTC's phones infringe the '211 patent? 8 9 A. evidence. Yes. I did my analysis. I looked at the And the conclusion that I write to is the HTC 10 phones that include the Qualcomm chipset do not infringe 11 for two reasons: 12 overlay code generator. 13 14 Q. 17 There is no And there is no second decoder. So let's step through these one at a time as quickly as we can, hopefully. 15 16 Okay. There is no overlay code. First, what are the two independent codes that are claimed in the '211 patent? A. So the '211 patent, again, has the orthogonal 18 code, and it has the overlay code. 19 is additional code that subdivides an orthogonal 20 channel. 21 22 23 Q. And the overlay code Now, you reviewed all these documents that describe the HSP -- HSDPA standard? A. Correct. So I went through the HSDPA standard 24 document-by-document, and there is no mention of an 25 overlay code. There is no second code in the HSDPA 21 1 2 standard. Q. And in the system described in the '2 -- I'm 3 sorry -- is the system described in the '211 patent, 4 compliant with the HSDPA standard? 5 6 7 8 9 A. No. The system described in the '211 patent is -- is not related to the HSDPA standard. Q. Okay. So how many codes does the HSDPA standard require for a single channel? A. There is a single code. There is the OVSF 10 code. And the standard is very clear. 11 different sections in the standard, and here's an 12 example. 13 We look at This is Section 5.2, talking about 14 channelization codes, and it says the channelization 15 code for the primary CPICH -- that was the example that 16 I showed animated at the beginning -- has a fixed 256 -- 17 and there's other examples of other codes -- for 18 different channels. 19 20 21 So on a single channel, there is one code. Q. And how many codes does the '211 patent require per channel? 22 A. Two. 23 Q. Is there anything in the claims or the 24 specification or the Court's claim construction that 25 describes using a single code or describes a single code 24 1 from originally? 2 A. Oh, in -- '93, actually was the priority date, 3 and '94 is when it was filed. 4 patent application that was filed by Klein Gilhousen. 5 There is an international He's one of the founders of Qualcomm, that 6 actually describes the variable length of the orthogonal 7 code, and it's those codes that were adopted by the 8 HSDPA standard and used in the Qualcomm chip. 9 Q. Have you ever met Klein Gilhousen? 10 A. Yes. Actually, I feel very honored. I met 11 him in the late '90s, and it was a huge honor to meet 12 him. 13 Q. Okay. So what exactly does the 14 Qualcomm/Gilhousen reference describe? 15 color-matching that you've done here. 16 A. Okay. And explain the So this is Figure 2 out of the 17 international patent application, and I believe the jury 18 has seen this before. 19 generates this variable length orthogonal code. 20 It is -- it is this tree that And on the right, I am showing a figure that's 21 taken right out of the standard. The only thing I've 22 done is I've rotated the figure so that they're both 23 kind of pointing down. 24 tree and the way the codes are generated at the first 25 level, the second level, the third level is the same, So you can see that the code 25 1 whether it's in Dr. Gilhousen's international patent 2 application or in the standard. 3 Q. So with respect to when the '211 patent was 4 filed, when did Qualcomm file its international patent 5 application on this concept? 6 A. This was two-and-a-half years before. 7 Q. Okay. Now, let's go to the -- I'm sorry. So 8 what's your ultimate conclusion with respect to whether 9 the HTC's phones include an overlay code and an overlay 10 11 12 13 code generator? A. There is no overlay code, and there is no overlay code generator. Q. Okay. Now, with respect to the second reason 14 you mentioned here, what is your conclusion with respect 15 to whether there's a second decoder in HTC's phones? 16 A. So it makes sense, if there is no overlay code 17 and no overlay code generator, there would be no second 18 decoder. 19 20 21 22 23 So I'm looking for something that's not there. So let's see what is there and why this is not there. Q. Okay. So what does the Qualcomm specification actually show about how the chips operate? A. So, again, this is a diagram out of the 24 Qualcomm specs, and I don't think the jury has seen this 25 before. This is an actual block diagram of what is 26 1 happening in the Qualcomm chip in the HTC phone. 2 And it's a little bit hard to see, but what I 3 highlighted here in yellow is a single code generator 4 that generates the OVSF code. 5 fed to here. 6 it's a single decoder that applies the OVSF code. 7 And you see that being And this is a de-spreader; it's a decoder; And then the other blocks are -- do something 8 different. 9 there's a lot of different blocks in the receiver. 10 Kind of like when we saw in the patent, But this is the key thing. There is a single 11 code generator; there is a single code; there is a 12 single decoder? 13 14 15 Q. So, in summary, what are the main reasons why HTC's phones do not infringe the '211 patent? A. So, again, we have no single -- no second 16 decoder, and there is no overlay code and no overlay 17 code generator. 18 Q. HTC was also accused of infringing Claim 2; is 19 that correct? 20 A. That is correct. 21 Q. How does Claim 2 compare to Claim 5 in the 22 '211 patent? 23 A. The language is very similar, so my analysis 24 for Claim 5 carries over for Claim 2, and for the same 25 reasons. There is no overlay code generator, no overlay 53 1 time you left Wi-LAN, in which the Airspan 2 patents-in-suit here were the drivers of the deal? 3 4 ANSWER: like that. I don't remember any agreements No. 5 (End of video clip.) 6 MS. HEFFERNAN: 7 Your Honor, Defendants call their next witness, Christopher Bakewell. 8 THE COURT: He has been sworn, hasn't he? 9 MS. HEFFERNAN: 10 THE WITNESS: 11 Yes, he has, Your Honor. Yes, sir. Thank you. 12 W. CHRISTOPHER BAKEWELL, DEFENDANTS' WITNESS, 13 PREVIOUSLY SWORN 14 DIRECT EXAMINATION 15 BY MS. HEFFERNAN: 16 Q. Good afternoon, Mr. Bakewell. 17 A. Good afternoon. 18 Q. Would you please introduce yourself to the 19 jury? 20 A. Sure. My name is Chris Bakewell. 21 Q. Where do you live? 22 A. I live in Sugar Land, Texas. 23 Q. Now, every other witness has described their 24 family life. 25 A. Do you want to share any secrets? No secrets, not in open court. But I will 54 1 tell a little bit about my family. 2 Q. Great. 3 A. I'm married. I've been married for 23 years. 4 I have 3 children. 5 man, I guess, who just started driving, which is quite 6 an experience. 7 have an 11-year-old son. 8 9 Q. I have a 16-year-old boy, a young I have a 13-year-old daughter, and I Have you been retained as a damages expert for Alcatel-Lucent and HTC in this case? 10 A. I have. My firm has. 11 Q. So let's cut right to the chase. What are 12 your opinions regarding a reasonable royalty in this 13 case for Alcatel-Lucent and HTC? 14 MS. HEFFERNAN: 15 if you would. 16 A. And let's go to Slide 2, Sure. As we have here on this slide, it's my 17 opinion that a reasonable royalty applicable to 18 Alcatel-Lucent, assuming that there is infringement and 19 validity found for the three patents asserted against 20 Alcatel-Lucent, would be $500,000 over the applicable 21 damages period, which would start at the date of 22 trial -- or the date the lawsuit was filed through the 23 day of trial. 24 25 And for HTC, regarding the '211 patent, the applicable figure is $100,000. 55 1 Q. (By Ms. Heffernan) Now, before we get to how 2 you arrived at your opinions in this case -- and we'll 3 spend a fair amount of time talking about that -- I'd 4 like you to tell the jury a little bit about your 5 background. 6 A. Sure. 7 Q. What do you do for a living? 8 A. Well, at the core of what I do, I'm a 9 management consultant, and I focus on the valuation of 10 up intellectual property rights. I will advise 11 companies and inventors on how to maximize the value of 12 their intellectual property rights, help them determine 13 what the value of their IP rights is. 14 asked from time to time to testify regarding damages in 15 cases like this. And I also get 16 Q. Where do you work? 17 A. I work in Houston, Texas, for a firm called 18 Duff & Phelps. 19 Q. And what do you do at Duff & Phelps? 20 A. I am a managing director in the Houston 21 office. 22 intellectual property practice nationwide. 23 the vision and strategy committee of the dispute 24 practice. 25 Q. I am the head -- the co-head of our I'm also on What's the vision and strategy committee? 152 1 did not know how to do that adjustment -- 2 A. I did. 3 Q. -- in this case? 4 5 6 7 8 9 And as a result, Mr. Jarosz didn't identify any damages numbers for this jury in this case, did he? A. Yes. I understand that's why he did not present any numbers that he would represent as damages. Q. Dr. Becker, were you able to do a geographic apportionment in this case? 10 A. I was. 11 Q. And as a result, are you able to provide this 12 jury with damages analysis for both Ericsson and Sony 13 Mobile in this case? 14 A. I am. 15 Q. Before we go into your analysis, should the 16 fact that you're offering opinions on damages now 17 suggest in any way that you think there is any 18 infringement here by either Sony Mobile or Ericsson? 19 A. 20 conclusion. 21 said this, that as damages experts, for our work to be 22 relevant, we have to make an assumption that there might 23 possibly be a finding of validity and infringement. 24 25 No. It wouldn't be fair to draw that I think Mr. Bakewell and even Mr. Jarosz And thus, we work from that as our assumption. But it shouldn't be taken in any way as an indication 153 1 that I have an opinion that the patents are valid or 2 infringed. 3 Q. That's not my area. Okay. And if the jury finds that there is no 4 infringement or that the patents are invalid, would 5 there be any damages awarded in this case? 6 A. No. 7 Q. With that preface and moving to Slide DX 7, 8 can you give the jury a preface, a little preview of 9 your damages analysis in this case with respect to 10 11 Ericsson? A. 12 Sure. My opinion is that when we look at the very 13 specific period of time that's the damages window in 14 this case, namely, from October of 2010 until trial, the 15 reasonable royalty for Ericsson, if there's a finding of 16 validity and infringement, would be $737,000. 17 18 Q. And did you prepare a similar analysis with respect to Sony Mobile? 19 A. Yes. 20 Q. Okay. 21 22 23 And as we move to DX 8, can you tell the jury about that? A. Yes. For Sony Mobile, with the same preface, that 24 if there's a finding of validity and infringement, it's 25 my opinion that for the one patent, the '211, for that 154 1 period of time that's in the damage window, it would be 2 $45,600. 3 Q. And before you go into more detail, I want to 4 ask you, you heard Mr. Jarosz and also Mr. Bakewell talk 5 about Georgia-Pacific Factors and a hypothetical 6 negotiation. 7 A. Yes. 8 Q. And instead of going back through all of that, 9 10 11 because it's been explained to the jury, let me just ask you, did you consider these as well? A. Yes, I did. I oftentimes have lots of slides 12 to explain that; but there have been two experts that 13 have gone before me that have explained it, so I'll just 14 tell you that, yes, I did consider that framework and 15 the hypothetical negotiation. 16 have are the result of my consideration of that. 17 Q. Okay. And the opinions that I And rather than going through lots of 18 slides, let me just point you to one slide, which is 19 DX 15-10 and ask you how this hypothetical negotiation 20 and the Georgia-Pacific Factors informed your analysis. 21 A. Sure. We see on the upper left there that 22 first assumption that we all have to make in the patent 23 damages world, that the patents are valid and infringed. 24 25 I then conduct a hypothetical negotiation for the license. I sort of mix the consideration of 155 1 evidence and a consideration of the Georgia-Pacific 2 Factors. 3 conclusion about the reasonable royalty. 4 Q. Those things all work together to lead me to a And with respect to the hypothetical 5 negotiation, Dr. Becker, what year was the hypothetical 6 negotiation for Ericsson? 7 A. That's in 2005. 8 Q. And with whom would Ericsson have negotiated 9 in this hypothetical negotiation? 10 A. With Airspan. 11 Q. And with respect to Sony Mobile, what year was 12 Sony Mobile's hypothetical negotiation? 13 A. It's 2009, and that would -- 14 Q. And -- 15 A. -- that would be with Wi-LAN. 16 Q. Okay. Again, without asking you to go through 17 all of the evidence you reviewed, did you review a lot 18 of the same evidence that we've heard from the other 19 experts, such as license agreements? 20 A. Yes. Yes. There were -- among the many, many 21 sort of electronic boxes of information that I got were 22 a large number of licenses from Ericsson, from Wi-LAN, 23 and that was, you know, a pretty significant amount of 24 paper or at least electronic paper. 25 Q. And for many of these licenses, you looked at

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?