Anascape, Ltd v. Microsoft Corp. et al

Filing 281

NOTICE by Anascape, Ltd ANASCAPE'S OBJECTIONS TO DEFENDANTS' TRIAL EXHIBITS (Cawley, Douglas)

Anascape, Ltd v. Microsoft Corp. et al

Doc. 281

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION Anascape, Ltd., Plaintiff, v. Microsoft Corp., and Nintendo of America, Inc., Defendants. ANASCAPE'S OBJECTIONS TO DEFENDANTS' TRIAL EXHIBITS Anascape hereby discloses and serves the following Objections to Defendants' Trial Exhibits pursuant to the Court's scheduling order. Pursuant to Ms. Chen's April 3, 2008 email to the parties, Anascape has not listed objections based on relevance or materiality. Anascape hereby expressly reserves the right to supplement, augment, or otherwise modify these objections based on circumstances as they may evolve prior to the commencement of trial. Anascape further reserves the right to offer into evidence any trial exhibit listed on Defendants' trial exhibit list. Anascape has not yet received the copies of Defendants' exhibits listed with the exhibit numbers (DX1, DX2, etc.). Anascape reserves the right to object to documents that have incorrect labeling, misleading labeling, or other technical defects. TRIAL EXHIBIT DX 7 Microsoft's Request for Reexamination of U.S. Patent No. 6,906,700 OBJECTIONS Admission of this document is subject to Anascape's Motion in Limine No. 17 1
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Civil Action No. 9:06-cv-158-RC JURY TRIAL REQUESTED

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Dockets.Justia.com

TRIAL EXHIBIT dated 5/4/07

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(reference to the reexamination of the patent-in-suit). This statement is Microsoft's counsel's views on why the patent is invalid, and is therefore objectionable hearsay, and states numerous legal conclusions. Finally, this is objectionable under 403, as the multiple proceedings in front of the patent office will confuse the jury, and is unfairly prejudicial, in light of its mimimal probative value. DX 8 Admission of this PTO Order dated 10/9/07 document is subject to granting reexamination of Anascape's Motion in U.S. Patent No. 6,906,700 Limine No. 17 (reference to the reexamination of the patent-in-suit). This statement is a preliminary statement by the patent office as to why the patent is invalid, and is therefore objectionable hearsay, and states numerous legal conclusions. This exhibit is objectionable under 403, as the multiple proceedings in front of the patent office will confuse the jury, and is unfairly prejudicial, in light of its mimimal probative value. Furthermore, 2
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the jury may become confused about the presumption of validity in light of this second, preliminary statement of the patent office. DX 9 Admission of this File History of document is subject to Reexamination of U.S. Anascape's Motion in Patent No. 6,906,700 Limine No. 17 (Reexamination Control (reference to the No. 95/000,221) reexamination of the patent-in-suit). The file history of the reexamination should not be admitted for the same reasons listed for DX7 and DX8. DX 10 This exhibit is PTO Order dated 7/10/07 objectionable under granting reexamination of FRE 403, as the U.S. Patent No. 6,222,525 multiple proceedings in front of the patent office will confuse the jury and is unfairly prejudicial in light of its mimimal probative value, especially considering that the '525 Patent is no longer asserted against either defendant. DX 11 See objections to DX9 File History of and DX10. Reexamination of U.S. Patent No. 5,222,525 (Reexamination Control No. 90/008,767) DX 19 Not authenticated; Red-lined comparison demonstrative without chart of applications of foundation. U.S. Patent Nos. 6,906,700 and 6,222,525 DX 26 This exhibit is an 3
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TRIAL EXHIBIT Defendant Nintendo of America Inc.'s Answer and Counterclaims dated September 25, 2006

OBJECTIONS argument regarding Defendants' position, states numerous legal conclusions, and cannot be used by Defendants as evidence. This exhibit is hearsay if offered to prove the truth of the contents listed therein. The exhibit is objectionable under FRE 403, as the jury may consider the pleading as evidence instead of argument, and is therefore unduly prejudicial, given the minimal probative value of the exhibit. See objections to DX26.

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DX 27 Defendant Nintendo of America Inc.'s First Amended Answer and Counterclaims dated October 16, 2006 DX 28 Defendant Nintendo of America Inc.'s Answer and Counterclaims to Anascape, Ltd.'s First Amended Complaint dated December 6, 2006 DX 29 Anascape, Ltd.'s Objection and Responses to Nintendo of America Inc.'s First Set of Interrogatories (Nos. 1-8) dated January 26, 2007 DX 30 Anascape, Ltd.'s Supplemental Objections and Responses to Nintendo of America

See objections to DX26.

This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 4

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TRIAL EXHIBIT Inc.'s First Set of Interrogatories (Nos. 1-8) dated July 31, 2007 DX 31 Anascape, Ltd.'s Objections and Responses to Nintendo of America Inc's Second Set of Interrogatories (Nos. 917) dated December 3, 2007 DX 32 Anascape's Supplemental Objections and Responses to Nintendo of America Inc.'s Second Set of Interrogatories (Nos. 914, 16) dated March 19, 2008 DX 33 Anascape Ltd.'s Objections and Responses to Nintendo of America Inc.'s First Set of Requests for Admission (Nos. 1-21) dated December 3, 2007 DX 34 Anascape Ltd.'s Objections and Responses to Nintendo of America Inc.'s Second Set of Requests for Admission (Nos. 22-25) dated February 22, 2008 DX 35 Anascape's 2nd Supplemental Response to Microsoft's 1st Interrogatories (1/24/08) DX 36 Anascape's Original Response to Microsoft's 403).

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This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections within the exhibit have not been redacted (FRE 403). This exhibit is objectionable because the legal objections 5

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TRIAL EXHIBIT 1st Interrogatories (11/19/07)

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within the exhibit have not been redacted (FRE 403). DX 37 This exhibit is U.S. Patent No. objectionable because 4,414,537, Dezmelyk Ex. Defendants appear to 4 offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36. DX 49 This exhibit is U.S. Patent No. objectionable because 4,386,914, Dezmelyk Defendants appear to Rebuttal Ex. 29 offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36. DX 50 This exhibit is U.S. Patent No. objectionable because 5,128,671, Dezmelyk Defendants appear to offer it as alleged prior Rebuttal Ex. 32 art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36. DX 51 This exhibit is U.S. Patent No. 4,555,960 objectionable because ANS0019417-24 Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36.

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DX 52 This exhibit is U.S. Patent No. 5,298,919 objectionable because ANS0019187-19206 Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36. DX 53 This exhibit is U.S. Patent No. 6,004,134 objectionable because (MSANAS0005268-78) Defendants appear to offer it as alleged prior art but Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36. Demonstrative without foundation. Additionally, this exhibit should not be DX 54 admitted before the Fiorito Summary Exhibit jury, because D inequitable conduct will be tried to the Court (Docket No. 219). DX 55 Not authenticated, Cyberman 3D Controller hearsay, Defendants Programming Supplement failed to timely identify Version 1.0 or produce this NAA00005399- 5429 reference as required Dezmelyk Ex. 24 by P.R. 3-3, 3-4, and 36. DX 57 Not authenticated, Bristow Exhibit: hearsay. Armstrong Declaration in Sony litigation regarding CyberMan, Bristow Ex. Q DX 58 Demonstrative without Bristow Exhibit: foundation. 7
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TRIAL EXHIBIT Annotated Photograph of Logitech CyberMan Controller, Bristow Ex. R DX 59 Bristow Exhibit: Annotated Photograph of Sega Saturn 3D Control Pad, Bristow Ex. W DX 60 Bristow Exhibit: Annotated Photograph of Sony "Flightstick," Bristow Ex. X DX 62 Bristow Exhibit: Annotated Photograph of Sony Dual Shock 2 Controller, Bristow Ex. BB DX 63 Bristow Summary Exhibit: 6DOF Summary Exhibit, Bristow Ex. LL

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Demonstrative without foundation.

Demonstrative without foundation.

Demonstrative without foundation.

DX 64 Bristow Summary Exhibit: Prior Art Invalidity Claim Chart, Bristow Ex. MM

This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court 8

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OBJECTIONS should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not produced or identified until March 20, 2008. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not produced or identified until March 20, 2008 Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not produced or identified until February 20, 2008. Not authenticated, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Not authenticated, Defendants failed to timely identify or 9

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DX 65 Bristow Exhibit: Official U.S. PlayStation Magazine, excerpts from November 1999 issue, including "Two-rific article", Bristow Ex. RR DX 66 Bristow Exhibit: GameFan magazine, excerpts from January 1996 issue, including photos of Sony "Flightstick", Bristow Ex. TT DX 68 Bristow Exhibit: Official U.S. PlayStation Magazine, additional excerpts from November 1999 issue, Bristow 2d Suppl. Ex. WW DX 70 Bristow Exhibit: Official U.S. PlayStation Magazine, 1999-2000 Publishing Schedule, Bristow 2d Suppl. Ex. XX DX 71 Bristow Exhibit: ZiffDavis Publication

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TRIAL EXHIBIT Schedule 2008-2009, Bristow 2d Suppl. Ex. YY DX 72 Bristow Exhibit: Google Groups website printout regarding Sony PlayStation Magazine November 1999 Issue, Bristow 2d Suppl., Ex. ZZ DX 73 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 2

OBJECTIONS produce this reference as required by P.R. 3-3, 3-4, and 3-6. Hearsay, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 36, not authenticated. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not 10

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DX 74 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 3

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OBJECTIONS evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant 11

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DX 75 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 4

DX 76 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 5

DX 77 Bristow Summary Exhibits on 6DOF, Bristow Rebuttal Ex. 6

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OBJECTIONS litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. This appears to be Defendants' expert testifying by a video clip created for purposes of the instant litigation. This is hearsay, and the Court should require Defendants' expert to testify live at trial, rather than through a video. Additionally, this is a demonstrative without foundation, and is argument, not evidence, and should be excluded from the record pursuant to 403. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, This exhibit is objectionable because it has an exhibit number on it from Defendants' expert report (i.e., if Defendants remove the exhibit number the 12

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DX 79 Bristow Summary Exhibits on 6DOF/Xbox only 2.5 DOF, Bristow Rebuttal Ex. 8

DX 80 Bristow Exhibit: U.S. Patent No. 4,353,552, Bristow Rebuttal Ex. 10 DX 81 Information Disclosure Statement Re: Patent Application of Brad A. Armstrong, undated Dezmelyk Ex. 23

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OBJECTIONS exhibit will not be objectionable). Not authenticated.

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DX 82 Magellan 3D Controller Manual NAA000053065355 Dezmelyk Ex. 13 DX 86 Translation of JP PlayStation® Manual DX 87 Japanese Patent No. 587760 (Japanese, English, Certificate) DX 88 Translation of JP LaidOpen Utility Model Publication S61103836

Not authenticated. This exhibit is objectionable because there is nothing attached to the purported translation. Not authenticated. Furthermore, this exhibit is objectionable if relied on by Defendants' technical experts, as it is not referenced in their expert reports. This exhibit is only a placeholder stating "This exhibit will be replaced with the certified copy when it is received from the Internet Archive." Defendants have not disclosed what this exhibit will be, therefore it is untimely. Also, this exhibit was not specifically disclosed in Defendants' notice of intent to offer certified records (Docket No. 245). Anascape reserves its right to offer additional objections to this "exhibit" once 13

DX 89 Documents obtained from the website The Internet Archive (http://web.archive.org)

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OBJECTIONS Defendants have obtained and disclosed the certified copy. Not authenticated. Not authenticated.

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DX 90 Bell Laboratories Video, Dezmelyk Ex. 12 DX 91 Sony Playstation manual with translation, Dezmelyk Ex. 11 DX 92 Internet pages on Robotron: 2084, Dezmelyk Rebuttal Ex. 28 DX 93 Internet pages on Twin Rifles Arcade Game, Dezmelyk Rebuttal Ex. 30 DX 97 Sony Press Release for DS dated 6/19/98 (Ex. 311) DX 98 Sony Press Release for DS2 dated 9/13/99 Ex 296 DX 99 Sony Data Sheet for DS2 dated 10/26/00 Ex 308

Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Hearsay, not authenticated. Hearsay, not authenticated. This exhibit is objectionable because the exhibit provided by Defendants to Anascape corresponding to this entry is to the "Nintendo Revolution controller Core plan" and not the "Sony Data Sheet for DS2." Anascape reserves its right to offer additional objections once the 14

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OBJECTIONS proper exhibit corresponding to this entry has been provided by Defendants. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Not authenticated.

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DX 100 Model Airplane Remote Controllers, Dezmelyk Rebuttal Ex. 35

DX 101 Playstation Analog Joystick ("Flightstick") (Dep. Ex. 299) DX 102 Defendants failed to Flightstick Pro, Dezmelyk timely identify or Rebuttal Ex. 31 produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. DX 104 No picture provided by Sony Dual Shock with Defendants; Anascape interior exposed reserves the right to object to this exhibit upon inspection. DX 106 No picture provided by Sony Dual Shock 2 with Defendants; Anascape interior exposed reserves the right to object to this exhibit upon inspection. DX 107 Not authenticated. Logitech Magellan, Dezmelyk Ex. 16 DX 109 Not authenticated. Coleco Gemini Controller, Dezmelyk Ex. 18 DX 110 Not authenticated. 1982 ColecoVision controller, Dezmelyk Ex. 19 DX 111 Not authenticated. Kraft Thunderstick, Dezmelyk Ex. 25 15
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TRIAL EXHIBIT DX 112 Sega Saturn 3D control pad (Dezmelyk Ex. 28) with Sega Nights Into Dreams Game DX 113 Sega Dreamcast Controller (with rumblepack) (on sale 9/9/99) DX 115 Super Nintendo Controller, Dezmelyk Ex. 30 DX 116 NES Controller, Dezmelyk Rebuttal Ex. 8 DX 117 NES Advantage Controller, Dezmelyk Rebuttal Ex. 9 DX 118 Nintendo 64 controller (Dep. Ex. 303) with Rumble Pack DX 119 Nintendo 64 controller with interior exposed

OBJECTIONS The "Nights into Dreams" not timely identified or produced as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Not authenticated.

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Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Not authenticated.

DX 120 Nintendo 64 Console

Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, no picture provided by Defendants; Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. Defendants failed to timely identify or 16

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produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. Defendants failed to timely identify or DX 121 produce this reference as required by P.R. 3-3, Super Mario 64 game 3-4, and 3-6, not authenticated. Defendants failed to timely identify or DX 122 produce this reference as required by P.R. 3-3, Famicom controller 3-4, and 3-6, not authenticated. DX 124 This exhibit should be Armstrong drawing excluded under 403, as Dep. Ex. 353 the jury could be confused as to whether Armstrong's later changes to the claim affects the scope of the claim as drafted. DX 125 This patent covers one U.S. Patent No. 6,102,803 of Defendants' game Dep. Ex. 304 controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 128 This patent covers one U.S. Patent No. 7,040,986 of Defendants' game Dep. Ex. 313 controllers. This exhibit should be 17
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excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. This patent issued too late to be considered as prior art. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 129 This patent covers one U.S. Patent No. 6,872,139 of Defendants' game NAA00016896- 16927 controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. This patent issued too late to be considered as prior art. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 130 This patent issued too U.S. Patent No. 6,811,489 late to be considered as B1 NAA00016853prior art. Also, 16895 Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 131 The translation of this JPA No. 254-134042 document has not been NAA00014859- 14871 authenticated. Furthermore, this 18
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document was not cited in Defendants' expert reports, thus, its experts cannot rely on this document. DX 132 This patent covers one U.S. Patent No. 5,207,426 of Defendants' game NAA00007045- 7056 controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 133 This patent application U.S. 2007/0066394 features one of Patent Application Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. DX 134 This patent application U.S. 2007/0050597 features one of Patent Application Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another 19
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OBJECTIONS patent. This design patent covers one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. 20

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DX 135 U.S. D559,254 S

DX 136 U.S. Patent No. 4,687,200

DX 137 U.S. Patent No. 5,184,830

DX 138 U.S. Patent No. 5,207,426

DX 139 U.S. Patent No. 5,396,225

DX 140 U.S. Patent No. 5,552,799

DX 141 U.S. Patent No. 5,602,569

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OBJECTIONS Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This patent covers one of Defendants' game controllers. This exhibit should be excluded under 403, as the jury may be confused as to whether a controller that is covered by one patent can infringe another patent. Also, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This patent issued too late to be considered prior art, and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6.

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DX 142 U.S. Patent No. 5,963,196

DX 143 U.S. Patent No. 5,984,785

DX 144 U.S. Patent No. 6,155,926 DX 145 U.S. Patent No. 6,482,010 dated 11/19/02 MSANAS0007345

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OBJECTIONS This patent issued too late to be considered prior art, and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This patent issued too late to be considered prior art (issued 2006), and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This patent issued too late to be considered prior art, and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. This patent issued too late to be considered prior art, and thus may confuse the jury under rule 403. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. No picture provided by Defendants; Anascape 22

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DX 146 U.S. Patent No. D453,932

DX 147 U.S. Patent No. D522,011

DX 151 U.S. Patent No. 6,005,551

DX 153 U.S. Patent No. 6,452,586

DX 156 U.S. Patent No. 5,643,087 DX 158 Nintendo GameCube

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TRIAL EXHIBIT controller with interior exposed DX 160 Nintendo GameCube Wavebird Wireless controller with interior exposed DX 163 Wii Nunchuk controller with interior exposed DX 166 Wii Classic controller with interior exposed DX 168 Wii Remote controller with interior exposed DX 177 Xbox 360 - Annotated Internal Photographs DX 178 MS Sidewinder 3D Pro Joystick (on sale 1996)

OBJECTIONS reserves the right to object to this exhibit upon inspection. No picture provided by Defendants; Anascape reserves the right to object to this exhibit upon inspection. No picture provided by Defendants; Anascape reserves the right to object to this exhibit upon inspection. No picture provided by Defendants; Anascape reserves the right to object to this exhibit upon inspection. No picture provided by Defendants; Anascape reserves the right to object to this exhibit upon inspection. Demonstrative without foundation. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6,, not authenticated. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6,, not authenticated. This exhibit is Defendants failed to timely identify or produce this reference 23

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DX 179 MS Sidewinder Game Pad (on sale 10/96)

DX 180 MS Sidewinder Force Feedback Pro Joystick (on sale 9/97)

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TRIAL EXHIBIT

OBJECTIONS as required by P.R. 3-3, 3-4, and 3-6,, not authenticated. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape reserves the right to object to this exhibit upon inspection, likely not authenticated. This exhibit is Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6,, Defendants only provided a photo of what appears to be a package of this controller, Anascape 24

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DX 181 MS Sidewinder Dual Strike (on sale 11/99)

DX 182 MS Sidewinder Freestyle Pro (on sale 11/98)

DX 183 MS Sidewinder Game Pad Pro dated 5/99 (on sale 11/99) (controller)

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TRIAL EXHIBIT

OBJECTIONS reserves the right to object to this exhibit upon inspection, likely not authenticated. Not authenticated.

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DX 184 Nintendo Gamecube Controller Guidelines, NAA 494-501 Dep. Ex. 25 DX 188 Wii Terminology document, with attachments, NAA 1008 ­ NAA 1021 Dep. Ex. 40 DX 189 Nintendo Revolution controller Core plan Ver. 0.4.21 NCA00012365 ­ 472 Dep. Ex. 308 DX 196 Paper Mario Game from Nintendo.com, Dezmelyk Rebuttal Ex. 24 DX 199 "Fundamentals of Interactive Computer Graphics" by J.D. Foley and A. Van Dam, Dezmelyk Rebuttal Ex. 27 DX 202 STP2163 Firmware Specification for Xbox Controller and Xbox Controller S (5/23/01) (MSANAS0017180) DX 203 9/12/01 Duke Product Specification v 1.0 (MSANAS 0017221-44)

Not authenticated.

Not authenticated.

Only a placeholder, not an actual exhibit. Only shows the front cover of the book, and is therefore incomplete. Hearsay, and Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. Not authenticated.

Not authenticated.

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TRIAL EXHIBIT DX 204 9/4/00 Duke Game Pad (with Alamo Chipset) Firmware Specification (MSANAS0065266) DX 205 Krypton (Xbox 360 wired) Firmware Specification v. 1.10 (MS-ANAS 105584) DX 212 Printout of archived ign.com website Dep. Ex. 350 DX 215 12/13/99 Letter Armstrong to Tyler ANS0056425 through ANS0056426 Dep. Ex. 135 DX 219 Letter from Anascape counsel to Microsoft counsel dated 11/20/07

OBJECTIONS Not authenticated.

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COURT RULING

Not authenticated.

Not authenticated, hearsay. This letter discusses the PSVC Patents, not the '700 Patent or any of its parent patents. As a result, it could confuse the jury, and should be excluded under rule 403. Introducing letters between counsel is overly prejudicial in light of the minimum probative value of such documents, and should be excluded under FRE 403. See objections to DX 219. Not authenticated.

DX 220 Letter from Anascape counsel to Microsoft counsel dated 11/26/07 DX 221 4/6/99-4/14/99 E-mail string between Brad Armstrong and Mike Paull (Ex. 158) DX 223 5/3/99 E-mail Todd Holmdahl to Brad Armstrong (Ex. 165) DX 224

Not authenticated.

Not authenticated, 26

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TRIAL EXHIBIT 5/5/1999 Calendar for Todd Holmdahl (MSANAS175885) DX 226 5/5/99 E-mail from Todd Holmdahl to large group reminding them of 5/5/99 2pm meeting (MSANAS175738) DX 227 5/5/1999 E-mail from Todd Holmdahl regarding his comments on recruit he interviewed from 5/5/99 3-4pm (MSANAS17587779) DX 228 5/5/1999 E-mail from Todd Holmdahl on 5/5/99 morning DX saying he has meeting/interview scheduled 2pm-4pm (MSANAS175891) DX 229 4/6/04 Voice-mail (transcribed) from Brad Armstrong to Todd Holmdahl (MS-ANAS 175225) DX 230 5/5/99 E-mail chain between Todd Holmdahl and Scott Plank (MS) (Ex. 166) DX 231 6/15/99 E-mail from Brad Armstrong to Todd Holmdahl (Ex. 174) DX 232 8/12/99 E-mail from Todd Holmdahl to Brad Armstrong (Ex. 179) DX 233 Email collecting 5/99 E3

OBJECTIONS produced well after the discovery deadline, on March 28, 2008. Not authenticated.

RESPONSE

COURT RULING

Not authenticated.

Not authenticated.

Not authenticated, use of the transcription of a voicemail is a violation of the best evidence rule. Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated, hearsay, includes 27

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TRIAL EXHIBIT news stories dated 5/21/99 MS-ANAS 159909

OBJECTIONS information about controllers (such as the Dualstrike), which Defendants failed to timely identify or produce as required by P.R. 3-3, 3-4, and 3-6. Not authenticated.

RESPONSE

COURT RULING

DX 234 Email, Matthew Stipes (MS) to Kurt Nielsen, cc Rob Walker dated 10/7/98 MS-ANAS 161104 DX 235 Email, Jerry Gotway (InDesign), to Microsoft personnel dated 2/8/99 MS-ANAS 161063 DX 236 Email, Kurt Nielsen (Microsoft) dated 3/18/99 MS-ANAS 161035 DX 237 Email, Kurt Nielsen (Microsoft) to InDesign, cc Rob Walker dated 4/5/99 MS-ANAS 161031 DX 240 12/9/99 Xbox Peripherals Project Plan (MS-ANAS 0025987-91) DX 242 Duke Project Status 11/7/00 (MSANAS 0066099-101) DX 243 Duke Project Status 12/9/99 (MSANAS 0066071) DX 244 Chart--Top 20 "Biggest Buzz" Wii Games, Ugone Ex. 4

Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated.

Demonstrative without foundation.

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TRIAL EXHIBIT DX 245 Chart--Games Released at the Launch of Wii, Ugone Ex. 5 DX 246 Chart--Scenario I: "All Asserted Claims" or "Only Claim 19" Are Found to Be Valid and Infringed, Ugone Ex. 7 DX 247 Chart--Scenario II: "All Asserted Claims Except Claim 19" Are Found to Be Valid and Infringed, Ugone Ex. 8 DX 253 10/23/97 Patent License Agreement between Microsoft and Metamorfyx (MS-ANAS 16117280) DX 256 Martinez Summary Exhibit 4: U.S. Market Share DX 257 Martinez Summary Exhibit 5 (AF) DX 258 Martinez Summary Exhibit 6: Demand Drive DX 259 Martinez Summary Exhibit 7: Licensed Anascape Patents and Applications DX 261 March 1998 Spreadsheet of royalties paid to Metamorfyx (MSANAS 175221-24) DX 263 Immersion Corporation,

OBJECTIONS Demonstrative without foundation. Attached expert report, which the Court specifically excluded. If just chart, it is a demonstrative without proper foundation. Attached expert report, which the Court specifically excluded. If just chart, it is a demonstrative without proper foundation. Not authenticated.

RESPONSE

COURT RULING

Demonstrative without proper foundation. Demonstrative without proper foundation. Demonstrative without proper foundation. Demonstrative without proper foundation.

Demonstrative without proper foundation.

Not authenticated.

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TRIAL EXHIBIT Form 10K, for year ending December 31, 2005 DX 267 Wii TV Commercial-- Los Angeles DX 268 Wii TV Commercial-- Middle of Nowhere DX 269 Wii TV Commercial-- Welcome to Naperville, Illinois DX 270 7-26-06 Wii Pre-Launch Evaluaton, Highly Confidential, NAA00021382 ­ 411 Dep. Ex. 277 DX 271 Wii Q1 2007 Marketing Plan, presented 10-17-06, Highly Confidential NAA00021656 ­ 686 Dep. Ex. 278 DX 272 February 2002 Knowledge Networks document Titled "Nintendo GameCubeAwareness & Usage Tracking Study, Wave I," Highly Confidential NAA00022104 ­ 188 Dep. Ex. 281 DX 273 September 2002 Knowledge Networks document Titled "Nintendo GameCube Awareness & Usage Tracking Study, Wave II," Highly Confidential

OBJECTIONS

RESPONSE

COURT RULING

Not authenticated. Not authenticated. Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated, hearsay.

Not authenticated, hearsay.

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TRIAL EXHIBIT NAA00022352 ­ 431 Dep. Ex. 282 DX 274 Photocopy of 1-5-07 Zanthus Powerpoint presentation re PostPurchase Satisfaction Study, Nintendo Wii, Highly Confidential NAA00023203 ­ 228 Dep. Ex. 283 DX 275 Nintendo of America Virtual Console Demand Study 2.28.06 NAA00021267-327 DX 276 Nintendo of America RDD Demo Tracking Study November 2006 NAA00021433-479 DX 277 Wii Pre-Launch Evaluation Study Qualitative Summary June 29, 2006 NAA00023229-243 DX 278 "Next Generation Consoles ­ Awareness and Purchase Intent ­ Round II", dated December 2001. NAA00022068 ­ 082 DX 279 NOA Launch Strategy July 2006 NAA00021776-799 DX 280 Console Comparison NAA0023189-202 DX 281 Letter from Ken titled Controller Comments

OBJECTIONS

RESPONSE

COURT RULING

Not authenticated, hearsay, many parts of the exhibit are illegible.

Not authenticated, hearsay.

Not authenticated, hearsay.

Not authenticated, hearsay.

Not authenticated, hearsay.

Not authenticated, hearsay. Not authenticated, hearsay. Not authenticated.

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TRIAL EXHIBIT NCA00012909 ­ 910 Dep. Ex. 152 DX 282 Undated Photo of Walker and team for major Xbox event (MS-ANAS 0039420, 23, 24) DX 284 Usability Research Report comparing PS2 and Xbox Controller S (Feb 2003) (MSANAS 111981-96) DX 286 2/7/06 Launch Results PPT for Xbox 360 (MSANAS 163417-62) DX 287 June 2003 Xbox Customer Research PPT (MS-ANAS 169294-487) DX 289 10/26/00 PS2 Launch Date (Ex. 308) DX 290 9/23/95 Gamex Blog Post (Ex. 312) DX 291 "The Ultimate Game Cube FAQ" (Ex 351) DX 292 Declaration of Brad A. Armstrong dated 5/6/04 from Immersion v. Sony litigation DX 293 Labeled photographs of Cyberman ANS001758696 DX 294 Drawing of Wii Remote controller, exploded view NCA00002795 DX 295

OBJECTIONS

RESPONSE

COURT RULING

Not authenticated.

Not authenticated, hearsay.

Not authenticated, hearsay. Not authenticated, hearsay. Not authenticated. Not authenticated. Hearsay. Should not be shown to the jury, as it goes primarily to inequitable conduct, which will be tried to the Court. Not authenticated.

Not authenticated.

Not authenticated. 32

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TRIAL EXHIBIT Drawing of Wii Classic controller, exploded view NCA00002793 DX 296 Drawing of Nunchuk, exploded view NCA00002794 DX 297 Drawing (Wii Remote) NCA00004273 DX 298 Drawing (Wii Remote) NCA00004389-90 DX 299 Drawing (Wii Remote housing) NCA000043924393 DX 300 Drawing (GameCube) NCA00013320-22 DX 301 Dolphin Controller Ver. 2.4 NCA00013751-65 DX 302 Evans, AR and Matson, RD, "Remote Subscription Services" dated 6/94 NCA00012912-13 DX 303 Dolphin Document (in Japanese) NCA00013019-21 DX 304 Ver. 3.0 dated 6/6/00 (Japanese document) NCA00013677-91 DX 305 Application for U.S. Patent No. 6,004,134

OBJECTIONS

RESPONSE

COURT RULING

Not authenticated.

Not authenticated. Not authenticated. Not authenticated.

Not authenticated. Not authenticated. Not authenticated.

Not authenticated.

Not authenticated.

Not authenticated, Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not on list of certified records. 33

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TRIAL EXHIBIT DX 308 Gameboy

OBJECTIONS

RESPONSE

COURT RULING

Nintendo Defendants failed to timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 309 Kirby Tilt n Defendants failed to Tumble game (Gameboy) timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. DX 310 CNN.com Hearsay, not Holiday Buying Guide authenticated, article dated December Defendants failed to 14, 1999. timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6. DX 311 MadKatz Dual Defendants failed to Force Controller timely identify or produce this reference as required by P.R. 3-3, 3-4, and 3-6, not authenticated. DATED: April 18, 2008 Respectfully submitted, McKOOL SMITH PC /s/ Douglas A. Cawley Douglas A. Cawley Lead Attorney Texas State Bar No. 04035500 [e-mail] Theodore Stevenson, III Texas State Bar No. 19196650 [e-mail] Anthony M. Garza Texas State Bar No. 24050644 [e-mail] Jason D. Cassady Texas State Bar No. 24045625 [e-mail] Steven Callahan 34
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Texas State Bar No. 24053122 [e-mail] Christopher Bovenkamp Texas State Bar No. 24006877 [e-mail] McKool Smith PC 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: [phone] Telecopier: [phone] Sam Baxter Texas State Bar No. 01938000 [e-mail] McKool Smith PC 104 E. Houston Street, Suite 300 P.O. Box O Marshall, Texas 75670 Telephone: [phone] Telecopier: [phone] Robert M. Parker Texas State Bar No. 15498000 [e-mail] Robert Christopher Bunt Texas State Bar No. 00787165 [e-mail] Charles Ainsworth Texas State Bar No. 00783521 [e-mail] Parker, Bunt & Ainsworth P.C. 100 E. Ferguson Street, Suite 1114 Tyler, Texas 75702 Telephone: [phone] Telecopier: [phone] ATTORNEYS FOR PLAINTIFF ANASCAPE, LTD. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed with the Court on April 18, 2008, and was thus sent to counsel that have registered with the Court's ECF system.

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/s/ Anthony M. Garza Anthony M. Garza

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