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

Filing 497

REPLY to Response to Motion re 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 filed by WI-LAN Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Weaver, David)

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EXHIBIT B 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION 2 3 WI-LAN, INC. ) 4 DOCKET NO. 6:10cv521 -vs- ) 5 Tyler, Texas 8:47 a.m. July 9, 2013 6 ALCATEL-LUCENT USA, INC., ET AL 7 ****************************************************** 8 WI-LAN, INC. ) ) DOCKET NO. 6:13cv252 9 10 -vsHTC CORPORATION, ET AL ) ) 11 12 13 14 15 TRANSCRIPT OF TRIAL MORNING SESSION BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY 16 17 18 19 20 21 22 COURT REPORTERS: MS. SHEA SLOAN MS. JUDY WERLINGER 211 W. Ferguson Tyler, Texas 75702 shea_sloan@txed.uscourts.gov 23 24 25 Proceedings taken by Machine Stenotype; transcript was produced by a Computer. 21 1 THE COURT: All right. I apologize for 2 keeping you waiting. 3 but we had a very important matter we had to take up 4 just with counsel. 5 you've had an extra long morning break there, but I will 6 give you another break later, though, so that doesn't 7 count. 8 9 I really don't like to do that, So know we've been working, although All right. witness. 10 We'll continue with this You may proceed, Counsel. MR. BORGMAN: Thank you, Your Honor. 11 JONATHAN WELLS, Ph.D., PLAINTIFF'S WITNESS, 12 PREVIOUSLY SWORN 13 DIRECT EXAMINATION 14 BY MR. BORGMAN: 15 Q. Good morning, Dr. Wells. 16 A. Good morning. 17 Q. When we left off, I think we were about to 18 start on the '211 patent, correct? 19 A. That's right, I think we were. 20 Q. All right. 21 And we've got Claim 5 up here. Can you -- well, actually before I start going 22 to the '211 patent, there were a couple of additional 23 acronyms I had on my list I wanted to ask you about. 24 One of them was UMTS. 25 A. Yes, I do. Do you remember that? 22 1 Q. And what does UMTS mean? 2 A. UMTS stands for universal mobile 3 4 5 6 telecommunications system. Q. How does that fit into about what we heard 1G, 2G, 3G, LTE, et cetera? A. UMTS is the name given to -- general name 7 given to what we call the 3G system, everything that's 8 under the 3GPP moniker. 9 10 Q. All right. Now, yesterday we also heard something about fixed access systems. 11 A. Yeah. 12 Q. Do you remember that testimony? 13 A. Yes. 14 Q. All right. 15 That's right. Are the patents -- any of the patents limited to fixed access systems? 16 A. No, they're not. 17 Q. All right. 18 patent. 19 Now, let's start off with the '211 Can you tell us generally what the '211 patent 20 relates to? 21 A. 22 Yes, I can. So we talked yesterday about the first two 23 patents, the '326, the '819. These -- recall I talked 24 about these being from a cell tower, a base station 25 transmitting data down. The smart TDM data down to a 23 1 subscriber unit. 2 subscriber unit, the handset that actually receives this 3 data. 4 This '211 patent is about the So it's -- in many ways, it's very closely 5 related to the other two. 6 Everything that you'd expect to have on the 7 transmission. 8 for transmission, you would expect to have those on 9 reception as well, because it would have to go through 10 11 In fact, it's a mirror. With all the various steps you go through those in an opposite order to un-code the signal. Q. Now, Dr. Wells, is it possible to quickly walk 12 us through the different elements in this Claim 5 of the 13 '211 patent? 14 A. 15 Yes, I can. So this is a subscriber terminal. It has an 16 orthogonal code generator, a first decoder, a TDM 17 decoder. 18 generator, a second decoder as well. 19 elements. 20 saw yesterday. 21 22 Q. It then goes on to have an overlay code These are the And as I said, it kind of mirrors to what we All right. Now, we've talked a bit about the Court's claim construction. Remember that? 23 A. (Nods head affirmatively.) 24 Q. All right. 25 to talk about here? Are there any claim terms we need 24 1 A. Yes. There's one new claim term here, which 2 is specific for the '211, and that's a TDM decoder. 3 talked yesterday about a TDM encoder. 4 decoder. 5 and/or software for extracting a data item from a 6 channel that has been encoded using TDM techniques. 7 We And then just for reference, I've put the This is a TDM And the Court has construed this as hardware 8 definition of TDM techniques, which we used yesterday. 9 So what this is basically saying is it's for decoding a 10 channel that's been encoded with that TDM techniques. 11 Q. All right. 12 of Claim 5. 13 A. Let's start with the first element Can you tell us what this is? Yes. So this is the first element. Again, 14 I've broken this claim up into these -- these different 15 elements. 16 of a wireless telecommunications system, comprising a 17 reception controller. The first one is 5(a), a subscriber terminal 18 Q. And do the HTC mobile phones have a reception 19 controller? 20 A. Yes, they do. So, again, remember this is in 21 the context of the HSDPA standards. 22 data is transmitted in a system. 23 have a subscriber that's able to receive that system. 24 25 They define how Of course, you have to And -- which is what I'm showing here. looked yesterday about how there has to be a We 100 1 that's what we're going to see, right? 2 A. Yes. 3 Q. Okay. 4 And, in fact, the patent even lists examples of how the code works. 5 So if we look at Column 10, right -- and 6 that's how patents are organized, in columns and line 7 numbers, right? 8 It says Column 10 of the '326 patent? 9 A. Yes. 10 Q. If we look down below, we see it's got a 11 table, and this is the RW codes or the orthogonal codes, 12 right? 13 A. Yes, that's right. 14 Q. All right. And then you have a separate table 15 with additional codes for the overlay, which we find in 16 Column 15, Table 2, the overlay codes, a separate table 17 of codes for the overlay, right? 18 A. That's right. 19 Q. All right. In this example, we do. And the way that would work, just 20 like the structure we saw in the claims, is that you 21 would first use -- or you would use the orthogonal 22 codes, and then you would use the overlay codes in 23 whatever order you want, right? 24 25 MR. BORGMAN: we approach? Objection, Your Honor. May 101 1 THE COURT: Yes, you may. 2 (Bench conference.) 3 MR. BORGMAN: This is a limine issue, 4 Your Honor. 5 suggesting that the claims require something different 6 than the claim construction or saying things that are 7 contrary to the claim construction order. 8 9 We've got a limine motion and order about Mr. Arovas's question just went to the order in which the overlay codes and the orthogonal 10 codes have to be applied. 11 that they can be applied simultaneously; they do not 12 have to be applied in seriatim. 13 MR. AROVAS: And in your order, it says I say in any order, but I'm 14 happy to reask the question and say simultaneously. 15 That wasn't the intent. 16 17 THE COURT: Reask the question. 18 19 All right. (Bench conference concluded.) Q. (By Mr. Arovas) Okay. So going back to what 20 we were talking about, so when we look at the examples 21 in the specification, you see there's a set of 22 orthogonal codes, a different set of overlay codes; and 23 you can apply them in any order or simultaneously, but 24 there's two sets, right? 25 A. In -- in this embodiment, yes. 102 1 Q. Okay. And, in fact, if we were to go through 2 the entire specification, we wouldn't find any example 3 that uses one code to both contain the orthogonal and 4 the overlay code, right? 5 6 7 A. Well, there's examples in there about how codes can be mixed together. Q. Okay. Here's my question, okay? It's a fact 8 that there isn't any example or embodiment in any of the 9 patents-in-suit that disclose the orthogonal code and 10 11 12 13 the overlay code to be a single code, correct? A. The answer to that is no -- I beg your pardon. The -- you are correct. Q. I'm correct. There isn't a single example 14 that uses the orthogonal code and the overlay code to be 15 a single code, right? 16 17 18 A. That's right. There's examples of how you can mix codes together, but you are correct. Q. Okay. So now let's turn to some of your 19 allegations where you compare the claims to -- and I'll 20 just leave this up here in case we need to refer to 21 it -- when you compare the claims to the accused 22 products, okay? 23 So first let's talk about Alcatel-Lucent. 24 And so I think you explained on direct, as you did in 25 your deposition, that you were relying on the same 115 1 under oath, in your deposition, you said that it's a 2 single spreading operation? 3 4 5 A. Right? I did, but I tried to put that in context on my -Q. I understand your position that one can be 6 two, okay; and that you say that there's two functions. 7 But let's just talk about the spreading operation. 8 It is a fact that this single structure performs a 9 single spreading operation with a single OVSF code; 10 11 12 13 isn't that right? A. I feel uncomfortable answering this as a yes or no, but yes. Q. Okay. And, in fact, if we go to the 14 Alcatel-Lucent product, you would see the same thing: 15 Single structure, single OVSF code, single spreading 16 operation, correct? 17 A. Performing the -- 18 Q. I understand your position, that two-in-one, 19 but let's just -- but let's just talk about how the 20 products work. 21 Single structure, single OVSF code, single 22 spreading operation in the Alcatel-Lucent products, 23 correct? 24 25 MR. BORGMAN: approach? Your Honor, may we 116 1 THE COURT: 2 (Bench conference.) 3 MR. BORGMAN: 4 Yes, you may. We are getting back to the motion in limine involving the simultaneous operation. 5 In the Court's claim construction, the 6 Court held that the claims do allow simultaneous 7 operations. 8 Mr. Arovas' question says I understand 9 that's your position, but he's suggesting that that's 10 not allowed by the Court. 11 MR. AROVAS: That's not our position at 12 all. Our position is there are two encoders. 13 two sets of codes. 14 time or not, is not the point. 15 16 Whether you apply them at the same The point is, it's one code, one encoder applied once. 17 18 There are I think it's fair cross-examination. THE COURT: Okay. You can clean it up on cross-examination. 19 MR. BORGMAN: 20 (Bench conference concluded.) 21 Q. All right. (By Mr. Arovas) Okay. Let's pick up where we 22 left off, and I want to be crystal-clear: 23 I'm not talking about order here. 24 You can use one code first, another code -- 25 you can use the orthogonal code first and the overlay 117 1 codes second; the overlay code -- I'm sorry -- the 2 orthogonal first -- you can use the orthogonal first, 3 the overlay second; the overlay first, the orthogonal 4 second. 5 You can do them simultaneously. I'm not suggesting anything about order, okay? 6 A. Okay. 7 Q. Okay. But what we know is for both the 8 Ericsson and the Alcatel-Lucent products, as well as the 9 handset products, the structure that's the 10 encoder/decoder, single structure, uses single OVSF 11 code, and a single spreading operation, correct? 12 A. Well, yes. 13 Q. Thank you. 14 So now let's talk very briefly about where 15 those codes are or where they sort of physically reside 16 in the products. 17 Defendants' products basically have an on-the-fly system 18 where they generate the codes as they need them, right? And it's correct, isn't it, that the 19 A. Yes, they do. 20 Q. Okay. So whether you're talking about the 21 Alcatel-Lucent products, the Ericsson products, or the 22 HTC or Sony Mobile products, it's a fact that none of 23 those products store at any one point in time the entire 24 set of orthogonal codes, correct? 25 A. I mean, that's not required by the claims,

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