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)
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?
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?