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. 3
Exhibit C
Dockets.Justia.com
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
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WI-LAN, INC.
)
4
DOCKET NO. 6:10cv521
-vs-
)
5
Tyler, Texas
1:06 p.m.
July 11, 2013
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ALCATEL-LUCENT USA, INC.,
ET AL
7
******************************************************
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WI-LAN, INC.
)
)
DOCKET NO. 6:13cv252
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10
-vsHTC CORPORATION,
ET AL
)
)
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TRANSCRIPT OF TRIAL
AFTERNOON SESSION
BEFORE THE HONORABLE LEONARD DAVIS,
UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY
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COURT REPORTERS:
MS. SHEA SLOAN
MS. JUDY WERLINGER
211 W. Ferguson
Tyler, Texas 75702
shea_sloan@txed.uscourts.gov
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24
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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.
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THE COURT:
He has been sworn, hasn't he?
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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
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