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 C 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. 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 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 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? 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 99 1 2 you've used in this case. A. That's correct. 3 MR. WEAVER: 4 THE COURT: 5 Redirect? 6 MR. APPLEBY: 7 8 9 10 Pass the witness. All right. Thank you. Yes, Your Honor. REDIRECT EXAMINATION BY MR. APPLEBY: Q. Dr. Wicker, can we -- can we bring up DDX 10-37? 11 Now, on cross-examination you were asked, Dr. 12 Wicker, a lot of questions about embodiments and figures 13 and whether you were using the embodiments to limit the 14 claim. 15 16 And you're not using the embodiments to limit the claim, are you? 17 A. No. 18 Q. In fact, I want to go back and I want to focus 19 on the claim language. 20 Now, if we look at the Claim 5 of the '326 21 patent, Claim 5 requires an orthogonal code generator, 22 right? 23 A. That's correct. 24 Q. And there is another element in Claim 5 that 25 requires an overlay code generator; is that right? 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? 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. 163 1 A. Okay. 2 Q. Now that you're with me, do you need to have 3 different hardware and different software for the first 4 encoder and the second encoder in the claims of the base 5 station patents? 6 A. It's not required. 7 Q. All right. 8 9 10 11 And how about in the claims of the subscriber terminal patent, the '211 patent? A. It's not required that the encoders be separate pieces of hardware. Q. 12 All right. Thank you. Now, with respect to the orthogonal code 13 generator and the overlay code generator in the claims 14 of the base station patents, can that be the same 15 hardware and software too? 16 A. You could imagine a system where you could 17 generate both the overlay code and the orthogonal code 18 with the same piece of equipment. 19 Q. 20 exclude that? 21 A. Correct. 22 Q. And the same answer with respect to the '211 23 patent? 24 A. 25 All right. So it's possible the claims don't I think we'd have to change some of the questions. 164 1 Q. 2 All right. Good point. Let's stick with the orthogonal code and 3 overlay code generators first, okay? 4 same hardware and software doing the orthogonal code 5 generator and the overlay code generator in the handset 6 patent, correct? 7 8 9 A. 10 11 That's not necessary that they be separate pieces of hardware. Q. We could have the Correct. Now -- thank you for correcting me. We get to the first decoder and the second decoder in the handset patents, right? 12 A. Right. 13 Q. All right. Now, can the first decoder and the 14 second decoder be the same hardware and the same 15 software? 16 17 18 19 20 A. You could imagine that you could build a system where such was true. Q. All right. So the claims don't call that out. They don't exclude that? A. You still have to have the encoders, but 21 there's no requirement that they have to be separate 22 pieces of hardware. 23 Q. Now, I believe Dr. Wicker also testified that 24 with respect to the overlay code -- and I'll wait till 25 you get a sip. 165 1 A. Thank you. 2 Q. Now, Dr. Wicker also testified that with 3 respect to the orthogonal code and the overlay code that 4 you could do the orthogonal code first and the overlay 5 code second, right? 6 7 A. Do you mean generate? Encode? I don't understand your question. 8 Q. Let's talk about the claims, what the claims 9 permit. 10 A. Okay. 11 Q. All right. What the claims cover, because you 12 understand it's the claims that matter the most here, 13 right? 14 A. Absolutely. 15 Q. All right. Now, in the claims -- and let's -- 16 let's just stick with the base station patents for a 17 second. 18 So in the claims of the base station 19 patents -- and I believe Dr. Wicker said this, but I 20 want to make sure that you agree -- you can do the 21 orthogonal code first and then generate the overlay 22 codes, correct? 23 A. Correct. 24 Q. And you can also generate the overlay codes 25 first and then the orthogonal codes next? 166 1 A. Correct. 2 Q. Or I can do the orthogonal codes and the 3 overlay codes at the exact same time, correct? 4 A. As long as you have two generators. 5 Q. All right. I understand that's your opinion; 6 but as far as the timing goes, I can do them right at 7 the same time. 8 9 10 11 A. Correct? The two generators can work at the same time. Correct. Q. And that's true for the '211 patent covering the handsets, correct? 12 A. Correct. 13 Q. Although, of course -- well, the handsets for 14 the generators that's fine, right? 15 different issue? 16 17 18 A. The decoders is a Well, you always have to decode in the reverse order that you encoded. Q. 19 Fair enough. Now, we talked about the Court's claim 20 construction. I believe you talked about that already 21 this morning, correct? 22 A. Yes, I did. 23 Q. And you were very careful to apply the Court's 24 25 claim construction, right? A. Yes, I was. 167 1 Q. Okay. You understand that's very important to 2 follow that? 3 A. Yes, I do. 4 Q. And as part of that, you understand that it's 5 not appropriate to refer to examples in the figures of 6 the patent and to try and limit the claims to just those 7 figures, correct? 8 A. That is correct. 9 Q. And you know it's not proper to limit the 10 claims of a patent to the examples that are described in 11 the specification of the patent, correct? 12 A. That is correct. 13 Q. Or the tables showing numbers, correct? 14 A. Correct. 15 Q. And to determine infringement, we don't 16 compare a product -- an accused product. 17 Ericsson base stations or the Sony Mobile phones, we 18 don't compare the accused products to the figures in the 19 patent. 20 A. No, that's not correct. 21 Q. No. 22 Like the That's not a proper analysis, is it, Doctor? We have to compare those accused products to the claims, correct? 23 A. Absolutely correct. 24 Q. All right. 25 Now, we've talked a lot about these Walsh codes, RW codes?

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