Anascape, Ltd v. Microsoft Corp. et al

Filing 313

ORDER on dfts' objections to pla's trial exhibits. Signed by Judge Ron Clark on 5/2/08. (djh, )

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Anascape, Ltd v. Microsoft Corp. et al Doc. 313 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ANASCAPE, LTD. Plaintiff, v. MICROSOFT CORPORATION, and NINTENDO OF AMERICA, INC., Defendants. Hon. Ron Clark Civil Action No. 9:06-CV-00158-RC ORDER ON DEFENDANTS' OBJECTIONS TO PLAINTIFF'S TRIAL EXHIBITS [Doc. #283] Plaintiff's Trial Ex. No. PX9 07/02/1999 E-mail from B. Armstrong to T. Holmdahl re: more thorough product demos (Holmdahl Deposition, 10/18/2007, Ex. 178) [MSANAS159894 -MSANAS159895] Defendants' Objections Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Response Email chain between Brad Armstrong and Todd Holmdahl corroborates meeting between the two on May 5, 1999. The fact that a Microsoft employee met with Mr. Armstrong goes to show the value of his technology, and is evidence of the value of the technology in a hypothetical negotiation. This is evidence of licensing activity, which rebuts assertions that Anascape is only interested in litigation. Shows knowledge of Armstrong's technology, supporting Anascape's pre-filing willfulness case. This email shows that Holmdahl had considered Armstrong's technology, Court's Ruling Exhibit Withdrawn PX10 08/12/1999 E-mail from T. Holmdahl to B. Armstrong re: Going Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule -1- Exhibit Withdrawn Dallas 255218v1 Dockets.Justia.com Plaintiff's Trial Ex. No. Forward (Holmdahl Deposition, 10/18/2007, Ex. 179) [MSANAS159893] Defendants' Objections 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Response but had decided to look at their "full plate of products." This shows awareness of Armstrong's inventions, and supports Anascape's willfulness case. This email shows Holmdahl sharing 10 emails between him and Brad Armstrong with another Microsoft employee. This shows Microsoft's interest in the technology, and is evidence of the value of the technology in a hypothetical negotiation. This supports a finding that Microsoft knew of the '700 Patent before the litigation, and supports Anascape's pre-filing willfulness case. This is an email between Todd Holmdahl and Paul Lovell, sharing Mr. Armstrong's contact information. This shows interest, and therefore the value, of Armstrong's technology, and also supports Anascape's willfulness case. This letter shows that Kelly Tyler retained Mr. Stolar to help them license its technology. This document does not discuss settlements whatsoever, and therefore does not offend Rule 408. This rebuts Defendants' assertion that Anascape is only interested in litigation. Court's Ruling PX11 08/23/1999 E-mail from T. Holmdahl to P. Lovell forwarding B. Armstrong information (Holmdahl Deposition, 10/18/2007, Ex. 180) [MSANAS159847] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Exhibit Withdrawn PX12 10/18/1999 E-mail from T. Holmdahl to P. Lovell re: Brad (Holmdahl Deposition, 10/18/2007, Ex. 181) [MSANAS159836] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Exhibit Withdrawn PX37 12/13/2001 Letter from K. Tyler to B. Stolar recapping their 12/13/2001 telephone conversation (Stolar Deposition, 12/20/2007, Ex. 287) [ANS0007792] Sony-Anascape Settlement: Defs' MIL 1 (Sony-Anascape Settlement); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 408 (Settlement); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). -2- Exhibit Withdrawn Dallas 255218v1 Plaintiff's Trial Ex. No. Defendants' Objections Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Response This may be authenticated by Kelly Tyler. This is a document signed by Bernie Stolar, and is a recorded recollection of his providing Nintendo with copies of some of Mr. Armstrong's patents. This shows knowledge of Armstrong's technology, which supports Anascape's pre-filing willfulness case. Court's Ruling PX38 11/29/2004 Affidavit of B. Stolar with attachments (Stolar Deposition, 12/20/2007, Ex. 291) [ANS0027856 ANS0027859] Exhibit Withdrawn Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). PX42 Undated - letter from Rule 802 (Hearsay) B. Armstrong to Kelly (only if offered for (Tyler Deposition, truth of matters 10/16/2007, Ex. 104) asserted); Rule 901 [ANS0053009 (Authenticity). ANS0053010] PX45 12/28/1998 E-mail from K. Tyler to D. de la Torre, re: Sending of 100K, Attachment: Limited Partnership 5.doc and Conditional Assignment 5.doc (Tyler Deposition, 10/16/2007, Ex. 110) [ANS0063656 ANS0063673] PX46 12/23/1999 Anascape Certificate of Rule 403 (Confusion, Prejudice); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authenticity). This exhibit shows licensing activity by Armstrong, which will rebut Defendants' assertion that Anascape is a company primarily interested in litigation. Furthermore, this shows Armstrong's then existing plan and mental feelings regarding the future of his patented technology, satisfying 803(3). Anascape may authenticate this document through Brad Armstrong or Kelly Tyler. This document corroborates evidence of ownership, and shows the structure of Anascape. This exhibit may be authenticated through Brad Armstrong or Kelly Tyler. Authenticate at trial. Authenticate at trial. Sony-Anascape Settlement: Defs' -3- The Sony/Anascape agreement was a license Overruled. Dallas 255218v1 Plaintiff's Trial Ex. No. Limited Partnership (Tyler Deposition, 10/16/2007) [ANS0028168 ANS0028182] PX54 04/20/2004 Patent License Agreement between, on the one hand, Sony Computer Entertainment America Inc. and Sony Computer Entertainment Inc., and on the other hand, Anascape, B. Armstrong and K. Tyler (Tyler Deposition, 10/16/2007, Ex. 129) [ANS0004667 ANS0004679] Defendants' Objections MIL 1 (Sony-Anascape Settlement); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 408 (Settlement); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication).1 Sony-Anascape Settlement: Defs' MIL 1 (Sony-Anascape Settlement); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 408 (Settlement); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Plaintiff's Response Court's Ruling PX55 06/26/2002 Letter Rule 802 (Hearsay) from K. Tyler to M. Perlis enclosing Issued Patent Portfolio (list of 18 Anascape Patents), 6 Claim Charts (Tyler Deposition, 10/16/2007, Ex. 133) [ANS0027688 ANS0027691] PX56 09/09/2002 Letter Rule 802 (Hearsay) from K. Tyler to T. Hoff (Logitech) enclosing 1 agreement, and Rule 408 is not implicated. This document shows ownership of the patents, and shows the structure of Anascape. This document may be authenticated through Brad Armstrong or Kelly Tyler. This license was not Overruled. reached in the context of litigation, and is not subject to Rule 408. This license is relevant as evidence of a hypothetical negotiation, shows evidence of industry respect for the patents (secondary indicia of nonobviousness). Additionally, this license shows Anascape's willingness to license its patents, which will rebut Defendants' assertion that Anascape is a company primarily interested in litigation. Anascape may authenticate this agreement through Brad Armstrong, who it intends to call live. This document would be Overruled. used to show Anascape's attempts to contact other manufacturers, specifically, Mad Catz. This document would be used to show Anascape's attempts to contact other Overruled. Defendants have informed Anascape that they have no objection to this Exhibit until ANS0028179 onward. -4- Dallas 255218v1 Plaintiff's Trial Ex. No. Issued Patent Portfolio (list of 18 Anascape Patents), 6 Claim Charts (Tyler Deposition, 10/16/2007, Ex. 134) [ANS0007855 ANS0007856] PX57 11/29/2001 Affidavit of B. Stolar (Tyler Deposition, 10/16/2007, Ex. 139) [ANS0007846] Defendants' Objections Plaintiff's Response manufacturers, specifically, Logitech. Court's Ruling Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Sony-Anascape Settlement: Defs' MIL 1 (Sony-Anascape Settlement); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 408 (Settlement Discussions). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). This document does not mention Sony, or the license agreement between Anascape and Sony. This is a document signed by Bernie Stolar, and is a recorded recollection of his providing Nintendo with copies of some of Mr. Armstrong's patents. This shows knowledge of Armstrong's technology, which supports Anascape's pre-filing willfulness case. Overruled. PX58 10/05/2001 Letter from B. Fischbach to S. Quan (Microsoft Corporation) re: Anascape (Tyler Deposition, 10/16/2007, Ex. 140 [ANS0007849 ANS0007850] PX59 04/23/2002 Letter Pre-Suit Interactions: -5- This is a letter from Mr. Exhibit Fischbach (retained by Withdrawn. Anascape) to Stacy Quan, a Microsoft attorney. To the extent that Microsoft attempts to point to Armstrong as copying Microsoft's technology, this document, which references the "upcoming" Xbox, rebuts that assertion. This also supports willfulness, and shows Anascape's attempts to license the patents. Letter to Microsoft that Exhibit Dallas 255218v1 Plaintiff's Trial Ex. No. from K. Tyler to B. Bach enclosing Issued Patent Portfolio (list of 14 issued Anascape Patents) (Tyler Deposition, 10/16/2007, Ex. 141) [ANS0007851 ANS0007852] Defendants' Objections Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Plaintiff's Response Court's Ruling PX60 04/30/2002 Telephone message - S. Quan (Microsoft Corporation) - wants list of claims that we are concerned about (Tyler Deposition, 10/16/2007, Ex. 142) [ANS0007853] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions) (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Overall and Foreign Sales/Profits: Defs' MIL Nos. 16-17 (Overall and Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). states "we have notified Withdrawn. Microsoft of our US-issued Patents which are at this time available for licensing." Shows licensing activity, which rebuts Defendants' allegations regarding litigiousness. Supports Anascape's pre-filing willfulness case, as it discusses "pending" patent applications. Anascape may authenticate this document through Kelly Tyler. Shows communications Exhibit with Microsoft, supports a Withdrawn. finding of licensing activity by Anascape. PX74 Undated Presentation by R. Holmdahl "Xenon Peripheral Plan" (Martinez Expert Report) [MSANAS164516 - MSANAS164533] This document shows a "peripheral plan" authored by Todd Holmdahl, one of the witnesses Microsoft is bringing to trial. Among other things, this document shows the importance of peripherals and controllers, and supports Anascape's position regarding a hypothetical negotiation. This does not show Microsoft's company-wide sales, and does not focus on foreign sales. Exhibit Withdrawn. -6Dallas 255218v1 Plaintiff's Trial Ex. No. PX76 02/02/2007 Chart re: identified products: Xbox Controller; Total US Revenue; Microsoft Corporation November, 2000 -December, 2006 (Martinez Expert Report) [MS-ANAS165685 - MSANAS165705] PX77 02/02/2007 Chart re: identified products: Xbox Controller; Total Worldwide Licenses; Microsoft Corporation November, 2000 December, 2006 (Martinez Expert Report) [MSANAS165706 MSANAS165726] Defendants' Objections Pre-Suit Sales: Rule 403 (Prejudice, Confusion, Waste of Time) (only as to portion of document showing pre-suit sales). Plaintiff's Response The total sales of the products show commercial success of the products, which are relevant secondary indicators of nonobviousness. Furthermore, this shows the potential size of the market, which is relevant to a hypothetical negotiation. The total sales of the products show commercial success of the products, which are relevant secondary indicators of nonobviousness. This does not show company-wide sales of Microsoft, nor does it focus or call out foreign sales. Furthermore, this shows the potential size of the market, which is relevant to a hypothetical negotiation. The total sales of the products show commercial success of the products, which are relevant secondary indicators of nonobviousness. This does not show company-wide sales of Microsoft, nor does it focus or call out foreign sales. Furthermore, this shows the potential size of the market, which is relevant to a hypothetical negotiation. This letter between Brad Armstrong and Mike Paul, discussing two of his earlier game controller patents, provides context to Court's Ruling Exhibit Withdrawn. Foreign Sales/Profits: Defs' MIL No. 17 (Foreign Sales/Proifits); Rule 403 (Prejudice, Confusion, Waste of Time). Exhibit Withdrawn. PX78 02/02/2007 Chart re: identified products: Xbox Controller; Total Worldwide Revenue; Microsoft Corporation November, 2000 December, 2006 (Martinez Expert Report) [MSANAS165727 - MSANAS165747] Foreign Sales/Profits: Defs' MIL No. 17 (Foreign Sales/Proifits); Rule 403 (Prejudice, Confusion, Waste of Time). Exhibit Withdrawn. PX81 02/27/1997 Letter from B. Armstrong to M. Paul re: patents for 6 DOFF controllers (Martinez Expert Report) Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of -7- Exhibit Withdrawn. Dallas 255218v1 Plaintiff's Trial Ex. No. [ANS0041787 ANS0041789] Defendants' Objections Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted). Privilege Log: Defs' MIL No. 13 (Negative Inference from Privilege); Rule 403 (Prejudice, Misleading, Confusion, Waste of Time); Defs' MIL No. 8 (Cheng Meeting). Privilege Log: Defs' MIL No. 13 (Negative Inference from Privilege); Rule 403 (Prejudice, Misleading, Confusion, Waste of Time); Defs' MIL No. 8 (Cheng Meeting). Sony-Anascape Settlement: Defs' MIL 1 (Sony-Anascape Settlement); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 408 (Settlement); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Non-Comparable Licenses: Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Plaintiff's Response the other communications between Todd Holmdahl and Brad Armstrong, and also provides supporting evidence for Anascape's pre-filing willfulness case. Fact that communications occurred regarding Armstrong's technology pre-suit supports Anascape's pre-filing willfulness case. Court's Ruling PX91 03/11/2007 Nintendo's Privilege Log (Anascape's Motion to Compel Production to Nintendo, 10/29/2007, Ex. 13) Exhibit Withdrawn. PX92 07/12/2007 Nintendo's Supplemental Privilege Log (Anascape's Motion to Compel Production to Nintendo, 10/29/2007, Ex. 14) Fact that communications occurred regarding Armstrong's technology pre-suit supports Anascape's pre-filing willfulness case. Exhibit Withdrawn. PX112 12/23/1999 Anascape's Limited Partnership Agreement (Martinez Expert Report, 03/03/2008) [ANS0004718 - ANS0004729] Sony Agreement was a Overruled. license, 408 not implicated. Shows structure of Anascape, corroborates ownership. May authenticate through Brad Armstrong. PX114 05/13/1993 Joint Venture Agreement between Key Tonic Corporation and Global Devices and S. Bowman (Bowman Deposition, 10/03/2007, Ex. 87) [ANS0008091 ANS0008106] The question of "comparability" is one for the jury, not for Defendants. The agreement shows the structure of an agreement that Armstrong proposed, and is thus relevant evidence in a hypothetical Overruled. -8Dallas 255218v1 Plaintiff's Trial Ex. No. Defendants' Objections Plaintiff's Response negotiation. Anascape may authenticate through Brad Armstrong. This is a supplementation to PX114, and is admissible for the same reasons. Court's Ruling PX115 09/20/1993 Letter agreement from R. Loiter to B. Armstrong and S. Bowman modifying 05/13/1993 Joint Venture Agreement (Bowman Deposition, 10/03/2007, Ex. 88) [ANS0040276 ANS0040277] PX121 Undated - Letter from B. Armstrong to Howard in Response to NODE (Cheng Deposition, 10/17/2007, Ex. 145) [ANS0055067] Non-Comparable Licenses: Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authenticity). Overruled. PX122 Undated - Letter from B. Armstrong to Howard in Response to NODE (Cheng Deposition, 10/17/2007, Ex. 146) [ANS0055066] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authenticity). PX123 08/27/1997 Handwritten notes re: Nintendo Technology Development, Howard Cheng (Cheng Deposition, 10/17/2007, Ex. 147) Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Defs' MIL No. -9- This letter between Armstrong and Howard Cheng at Nintendo. Armstrong's then-existing mental impressions ("I am very pleased that Nintendo is interested in this technology . . .") are useful to show Nintendo's interest in the patent technology, and shows value. This also supports Anascape's prefiling willfulness case. This letter between Armstrong and Howard Cheng at Nintendo. Armstrong's then-existing mental impressions ("I am very pleased that Nintendo is interested in this technology . . .") are useful to show Nintendo's interest in the patent technology, and shows value. This also supports Anascape's prefiling willfulness case. Corroborates that Howard Cheng received a controller prototype from Armstrong (notebook reads "digital 6DOF sample." Supports pre-filing willfulness case. Exhibit Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Dallas 255218v1 Plaintiff's Trial Ex. No. [NAA00014643 NAA00014644] PX124 Undated - articles entitled "Global Navigator vs. Space Ball," and "Fundamental Advantages of the Extreme 6DOF Patent Portfolio" (Cheng Deposition, 10/17/2007, Ex. 148) [NAA00014645 NAA00014647] Defendants' Objections 8 (Cheng Meeting). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 701 (Improper Lay Opinion); Rule 901 (Authentication). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Defs' MIL No. 8 (Cheng Meeting). Plaintiff's Response Court's Ruling Is evidence of meeting, which suggests value of the technology. This document, describing Exhibit Armstrong's prototypes, Withdrawn. was found in Cheng's files. The fact that he kept this document for so long is evidence of the value of it to him. This also supports Anascape's pre-filing willfulness case. PX125 Undated - Patent Server IBM detailed view of 5565891: Six degrees of freedom graphics Controller (Cheng Deposition, 10/17/2007, Ex. 149) [NAA00014648 NAA00014660] PX129 11/12/2000 Newsweek article "Now It's Nintendo's Turn" (Harrison Deposition, 11/09/2007, Ex. 263) [NAA00017341 NAA00017343] PX130 05/16/2001 MSNBC article "Biggest fight in video game history kicks off this week" (Harrison Deposition, Rule 403 (Prejudice, Confusion) (conditioned on the grant of Defendants' motion for summary judgment of no willful infringement) 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 (Authentication). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 - 10 - Supports a finding of prefiling willful infringement. Exhibit Withdrawn. Shows praise for features found in the inventions, shows importance of controller features, which is relevant for determining the value of the inventions. If this is a Newsweek article, it's not on disk given to court as PX 129. Shows praise for features found in the inventions, shows importance of controller features, which is relevant for determining Authenticate at trial. Dallas 255218v1 Plaintiff's Trial Ex. No. 11/09/2007, Ex. 264) [NAA00017746 NAA00017748] PX136 03/03/1999 Fax from K. Tamura to Mr. Koshiishi re: controller (Harrison Deposition, 11/09/2007, Ex. 285) [NCA00003041 NCA00003045] Defendants' Objections (Lack of Personal Knowledge); Rule 901 (Authentication). Rule 802 (Hearsay) Plaintiff's Response the value of the inventions. Court's Ruling PX138 Undated Facsimile from B. Armstrong to M. Paul at Microsoft re: Thanks for meeting at CGDC and Good News! (Holmdahl Deposition, 10/18/2007, Ex. 156) [ANS0051502] PX140 04/15/1999 E-mail from T. Holmdahl to M. Van Flandern re: Useful New Products (Holmdahl Deposition, 10/18/2007, Ex. 160) [MSANAS159953 - MSANAS159954] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Corroborates Brad Defs' MIL No. 5 (Pre- Armstrong's 1999 meeting suit Interactions); Rule with Microsoft. 403 (Prejudice, Confusion, Waste of Time). Document shows that Overruled. Nintendo employees thought that certain controller features were important, which is evidence of value in a hypothetical negotiation. To the extent that Nintendo claims that its controllers were completely original, this document rebuts by showing the "inspiration" for the GameCube controller. Letter claims broad patent Exhibit protection covering 3-D Withdrawn. graphic image controllers, which supports a finding of pre-suit willfulness. Exhibit Withdrawn. - 11 Dallas 255218v1 Plaintiff's Trial Ex. No. PX141 04/18/1999 E-mail from B. Armstrong to T. Holmdahl re: Meet (Holmdahl Deposition, 10/18/2007, Ex. 161) [MSANAS159869] PX142 04/22/1999 E-mail from B. Armstrong to T. Holmdahl re: Meet (Holmdahl Deposition, 10/18/2007, Ex. 162) [MSANAS159864 - MSANAS159866] PX143 04/26/1999 Email from T. Holmdahl to M. Van Flandern and S. Plank re: Meet (Holmdahl Deposition, 10/18/2007, Ex. 163) [MSANAS159936 - MSANAS159938] Defendants' Objections Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Response Shows that Holmdahl received Armstrong's contact information from Mike Paull, and provides context to the other communications between Holmdahl and Armstrong. Court's Ruling Exhibit Withdrawn. Corroborates Brad Armstrong's 1999 meeting with Microsoft. Exhibit Withdrawn. Corroborates Brad Armstrong's 1999 meeting with Microsoft. Exhibit Withdrawn. - 12 Dallas 255218v1 Plaintiff's Trial Ex. No. PX144 04/26/1999 E-mail from B. Armstrong to T. Holmdahl re: Meet (Holmdahl Deposition, 10/18/2007, Ex. 164) [MSANAS159859 - MSANAS159863] PX145 05/05/1999 E-mail from T. Holmdahl to S. Plank, P. Lovell, C. Ledbetter, S. Kaneko re: idea (Holmdahl Deposition, 10/18/2007, Ex. 167) [MSANAS159922] PX146 05/06/1999 E-mail from S. Kaneko to T. Holmdahl, P. Lovell, C. Ledbetter re: idea (Holmdahl Deposition, 10/18/2007, Ex. 168) [MSANAS159921] PX147 05/06/1999 E-mail from C. Ledbetter to T. Holmdahl re: Orca "Z" control idea (Holmdahl Deposition, 10/18/2007, Ex. 169) [MSANAS159920] PX148 05/07/1999 E-mail from B. Armstrong to P. Lovell, T. Holmdahl re: Thanks for meeting with Defendants' Objections Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, - 13 - Plaintiff's Response This a responsive email from Armstrong to Holmdahl regarding whether their meeting would be in the "public domain." This email supports Anascape's prefiling willfulness case. Court's Ruling Exhibit Withdrawn. Email from Holmdahl to other Microsoft employees shows his interest in Armstrong's technology, undercuts any assertion that Armstrong's technology does not have value. Responsive email to PX145, shows agreement with assertion that Armstrong's technology has value. Responsive email to PX145, shows agreement with assertion that Armstrong's technology has value. Shows that Microsoft provided an NDA to Armstrong, suggests value to Armstrong's patented Exhibit Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Dallas 255218v1 Plaintiff's Trial Ex. No. me. (Holmdahl Deposition, 10/18/2007, Ex. 170) [MSANAS159857] PX149 05/18/1999 E-mail from B. Armstrong to T. Holmdahl, P. Lovell re: Ready to sign the NDA (Holmdahl Deposition, 10/18/2007, Ex. 171) [MSANAS159856] Defendants' Objections Confusion, Waste of Time). Plaintiff's Response Court's Ruling PX150 05/20/1999 E-mail from T. Holmdahl to B. Armstrong, P. Lovell re: Ready to Sign the NDA (Holmdahl Deposition, 10/18/2007, Ex. 172) [MSANAS1599913] PX151 05/24/1999 E-mail from B. Armstrong to T. Holmdahl re: Ready to Sign the NDA? (Holmdahl Deposition, 10/18/2007, Ex. 173) [MSANAS159852] Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). inventions. Specifically mentions future "patent pending" material, supporting Anascape's prefiling willfulness case. Shows that Microsoft Exhibit provided an NDA to Withdrawn. Armstrong, suggests value to Armstrong's patented inventions. Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also - 14 - Shows communications from Microsoft that further negotiates the NDA provided to Brad Armstrong. Shows that Microsoft is interested in Armstrong's technology, which shows value of those features. Shows further communications regarding the NDA addressed in PX149 and PX150. Exhibit Withdrawn. Exhibit Withdrawn. Dallas 255218v1 Plaintiff's Trial Ex. No. PX152 06/15/1999 E-mail from B. Armstrong to P. Lovell, T. Holmdahl re: NDA - Status? (Holmdahl Deposition, 10/18/2007, Ex. 174) [MSANAS159851] PX153 06/16/1999 E-mail from T. Holmdahl to B. Armstrong, P. Lovell re: DNA [sic] - Status? (Holmdahl Deposition, 10/18/2007, Ex. 175) [MSANAS159903 - MSANAS159904] PX154 06/20/1999 E-mail from B. Armstrong to T. Holmdahl, P. Lovell re: More Thorough Product Demos? (Holmdahl Deposition, 10/18/2007, Ex. 176) [MSANAS159848 - MSANAS159850] Defendants' Objections hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (to the extent communications of B. Armstrong or Anascape are included and offered for truth of matters asserted; also - 15 - Plaintiff's Response Court's Ruling Shows further communications regarding the NDA addressed in PX149 and PX150. Exhibit Withdrawn. Shows further communications regarding the NDA addressed in PX149 and PX150. Exhibit Withdrawn. Corroborates 1999 Holmdahl meeting, supports pre-filing willfulness allegations. Exhibit Withdrawn. Dallas 255218v1 Defendants' Objections hearsay to extent communications of Microsoft are included and offered for truth of matters asserted and against NOA). PX155 07/01/1999 E-mail Pre-Suit Interactions: from T. Holmdahl Defs' MIL No. 5 (Pre(Holmdahl Deposition, suit Interactions); Rule 10/18/2007, Ex. 177) [MS- 403 (Prejudice, Confusion, Waste of ANAS159897- MSTime). ANAS159899] PX173 09/27/2001 3rd Party Article: Article: IGN: Dual Shock 2 Rule 802 (Hearsay) (only if offered for Review (Rebuttal Expert truth of matters Report of R. Howe, asserted); Rule 602 03/03/2008) (Lack of Personal Knowledge); Rule 701 (Improper Lay Opinion); Rule 901 (Authentication). PX174 10/26/2000 3rd Party Article: Article: Sony DualShock 2 Rule 802 (Hearsay) Analog Controller (Black) (only if offered for - CNET review (Rebuttal truth of matters Expert Report of R. Howe, asserted); Rule 602 03/03/2008) (Lack of Personal Knowledge); Rule 701 (Improper Lay Opinion); Rule 901 (Authentication). PX183 Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (alleged statements by Mitsumi) Rule 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Trial Ex. No. Plaintiff's Response Court's Ruling Corroborates 1999 Holmdahl meeting, supports pre-filing willfulness allegations. This is evidence of praise, and of value of controller features. The fact that a ign.com writer wrote a helpful review is evidence of praise. Exhibit Withdrawn. Overruled. This is evidence of praise, and of value of controller features. The fact that a cnet.com writer wrote a helpful review is evidence of praise. Sustained as to authenticity. PX184 10/15/1999 E-mail from W. Mack to R. Vingerelli, B. Friedrich (HRDW/USA), M. DuCoeur, T. Schafenacker re: Tilt and X-box matters Shows importance of rumble, as it is shown as a relatively expensive part, and shows copying of the Sony Dual Shock. Shows copying of the Sony Dual Shock. Exhibit Withdrawn. Exhibit Withdrawn. - 16 Dallas 255218v1 Plaintiff's Trial Ex. No. (Rebuttal Expert Report of R. Howe, 03/03/2008) [MS-ANAS0031852] PX185 08/22/2005 Xbox 360 Accessories Roadmap (Rebuttal Expert Report of R. Howe, 03/03/2008) [MS-ANAS161260 -MSANAS161286] PX201 07/15/1993 and 07/20/1993 Global fax cover sheets (2) from S. Bowman of Global Devices to M. Phalen of Key Tronic Corporation re: (1st fax) Development unit and Computer-Aided Engineering Buyer's Guide and (2nd fax) an Atari article [ANS0040164] PX202 07/20/1993 Global Fax Cover Sheet from S. Bowman to M. Phalen for J. DeWenter re: Here's an article I thought would be of interest to you..... (re new Atari game) [ANS0040165] PX203 07/28/2003 Website article, San Jose, Calif., "Microsoft Licenses Immersion's Haptic Patent Portfolio, Agreements Settle Legal Differences, Provide Microsoft Broad Licensing Rights to Sense of Touch Patents on Multiple Platforms" (immr.client.shareholder.co m/ReleaseDetail.cfm?Rele aseID=114868&printable= 1) Defendants' Objections Plaintiff's Response Court's Ruling Overall and Foreign Sales/Profits: Defs' MIL 16-17 (Overall and Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted). This does not show Microsoft's company-wide sales, and does not call out Microsoft's foreign sales. This shows Microsoft's plans for xbox 360 accessories, and is relevant and helpful for the jury. Shows communications that led to, and provides context for, a licensing agreement between KeyTronic and Mr. Armstrong. Exhibit Withdrawn. Overruled (object at trial if offered for truth) Rule 802 (Hearsay) (only if offered for truth of matters asserted). Shows communications that led to, and provides context for, a licensing agreement between KeyTronic and Mr. Armstrong. If the Court grants the motion to compel the Microsoft/Immersion license agreement, this is relevant to show the terms of those licensing agreements. Shows Microsoft's interest in haptic technologies. Overruled (object at trial if offered for truth) Immersion Settlement: Defs' MIL No. 2 (Microsoft-Immersion Settlement); Rule 403 (Prejudice, Confusion, Waste of Time). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal - 17 - Sustained. Dallas 255218v1 Plaintiff's Trial Ex. No. PX204 Undated - Website article "Does this week's injunction, halting all imports of PlayStation product, have Sony shaking, rattling, or rolling? We ask Immersion boss Victor Viegas to explain if it's game over for Sony" (www.gamespot.com/news / 6121323.html?&print=1) (K. Ugone Rebuttal Expert Report, 03/03/2008) PX216 03/31/2001 09/30/2007 Nintendo of America, Inc. Monthend Income Statement Summary (Meader Deposition 11/8/2007, Ex. 246) [NAA00023081 NAA00023129] PX217 10/00/2005 12/00/2006 Microsoft Corporation Identified Products: Common Controller Total US Licenses and Revenue (Moline Deposition 10/14/2007, Ex 203) [MSANAS165479 - MSANAS165482] PX219 07/07/2006 Home & Entertaiment Product P&L FY06 Actual Trent US Dollars In Thousands (Moline Deposition 10/14/2007, Ex. 206) [MSANAS165489 - MS- Defendants' Objections Knowledge); Rule 701 (Improper Lay Opinion); Rule 901 (Authentication). Immersion Litigation: Rule 403 (Prejudice, Confusion, Waste of Time). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 701 (Improper Lay Opinion); Rule 901 (Authentication). Overall Sales/Profits: Defs' MIL No. 16 (Overall Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Pre-Suit Sales: Rule 403 (Prejudice, Confusion, Waste of Time) (only as to portion of document showing pre-suit sales). Plaintiff's Response Court's Ruling Shows what parties would understand as an appropriate royalty rate for force feedback related technologies. Sustained. Does not show Nintendo's Overruled. company-wide sales. This is the type of sales information that is useful in computing damages, and is not overly prejudicial. Defendants' pre-suit sales Exhibit are relevant for showing Withdrawn. commercial success, and for showing the importance of the technology. Foreign Sales/Profits: Defs' MIL 17 (Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Microsoft provided this document, showing profits and losses on a worldwide basis. Parts of this document show domestic sales information, and the foreign sales portions of it Exhibit Withdrawn. - 18 Dallas 255218v1 Plaintiff's Trial Ex. No. ANAS165544] PX220 01/17/2007 Home & Entertaiment Product P&L FY07 YTD Dec Actual Trent US Dollars In Thousands (Moline Deposition 10/14/2007, Ex. 207) [MS-ANAS165548 MS-ANAS165663] PX221 11/00/2000 12/00/2006 Microsoft Corporation Identified Products: Total US Licenses (Moline Deposition 10/14/2007, Ex. 208) [MS-ANAS165664 MS-ANAS165747] PX 222 07/10/2000 Microsoft Consolidated P&L Div: Xbox FY00 Actual Trend US Dollar In Thousands (Moline Deposition 10/14/2007, Ex. 209) [MS-ANAS165748 MS-ANAS165765] Defendants' Objections Plaintiff's Response Court's Ruling Exhibit Withdrawn. are not unduly prejudicial. Microsoft provided this Overall and Foreign document, showing profits Sales/Profits: Defs' MIL Nos. 16-17 and losses on a worldwide (Overall and Foreign basis. Parts of this Sales/Profits); Rule 403 document show domestic (Prejudice, Confusion, sales information, and the Waste of Time). foreign sales portions of it are not unduly prejudicial. Relevant for commercial Pre-Suit Sales: Rule 403 (Prejudice, success, and for showing Confusion, Waste of importance of features. Time) (only as to Also, parts of this portion of document document show relevant showing pre-suit sales). sales information, and the remaining portions are not unduly prejudicial. Microsoft provided this Overall and Foreign document, showing profits Sales/Profits: Defs' MIL Nos. 16-17 and losses on a worldwide (Overall and Foreign basis. This does not show Sales/Profits); Rule 403 overall sales of Microsoft. (Prejudice, Confusion, Parts of this document Waste of Time). show domestic sales information, and the foreign sales portions of it Pre-Suit Sales: Rule 403 (Prejudice, are not unduly prejudicial. Confusion, Waste of Time) (as to portion of document showing presuit sales). PX223 07/05/2002 Product Overall and Foreign Microsoft provided this FY02 Actuals vs FY01 document, showing profits Sales/Profits: Actuals for the Months of Defs' MIL Nos. 16-17 and losses on a worldwide January-December US (Overall and Foreign basis. This does not show Dollars In Thousands Div: Sales/Profits); Rule 403 the overall sales of Xbox (Moline Deposition (Prejudice, Confusion, Microsoft. Parts of this 10/14/2007, Ex. 210) [MS- Waste of Time). document show domestic ANAS165766 - MSsales information, and the ANAS165816] foreign sales portions of it Pre-Suit Sales: Rule 403 (Prejudice, are not unduly prejudicial. Confusion, Waste of Pre-suit portions are Time) (as to portion of relevant for commercial document showing pre- success. - 19 Dallas 255218v1 Exhibit Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Plaintiff's Trial Ex. No. PX224 07/09/2003 Home & Entertainment FY03 Actual Trend US Dollars In Thousands Div: Xbox (Moline Deposition 10/14/2007, Ex. 211) [MSANAS165817 - MSANAS165868] Defendants' Objections suit sales). Overall and Foreign Sales/Profits: Defs' MIL Nos. 16-17 (Overall and Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Plaintiff's Response Microsoft provided this document, showing profits and losses on a worldwide basis. This does not show the overall sales of Microsoft. Parts of this document show domestic sales information, and the foreign sales portions of it are not unduly prejudicial. Pre-suit portions are relevant for commercial success. Microsoft provided this document, showing profits and losses on a worldwide basis. This does not show the overall sales of Microsoft. Parts of this document show domestic sales information, and the foreign sales portions of it are not unduly prejudicial. Pre-suit portions are relevant for commercial success. This license offer to Intec shows terms that Anascape would find acceptable in a hypothetical negotiation. This is not unduly prejudicial, and may be authenticated. Also shows Anascape's willingness to license. This license offer to Intec shows terms that Anascape would find acceptable in a hypothetical negotiation. This is not unduly Court's Ruling Exhibit Withdrawn. Pre-Suit Sales: Rule 403 (Prejudice, Confusion, Waste of Time) (as to portion of document showing presuit sales). PX225 07/14/2004 Home Overall and Foreign & Entertainment FY 04 Sales/Profits: Actual Trend US Dollars In Defs' MIL Nos. 16-17 Thousands Div: Xbox (Overall and Foreign (Moline Deposition Sales/Profits); Rule 403 10/14/2007, Ex. 212) [MS- (Prejudice, Confusion, Waste of Time). ANAS165869 - MSANAS165928] Pre-Suit Sales: Rule 403 (Prejudice, Confusion, Waste of Time) (as to portion of document showing presuit sales). PX226 12/26/2002 E-mail Unaccepted License from K. Tyler to Offers: Rule 403 Tom@inteclink.com encl. (Prejudice, Confusion, outline of potential Waste of Time) agreement (Bratic Expert (unaccepted license Report 02/11/2008) offer); Rule 802 (Hearsay) (only if [ANS0007809 offered for truth of ANS0007811] matters asserted); Rule 901 (Authentication). PX227 01/15/2003 E-mail Rule 106 (Remainder/ from K. Tyler to T. Related Writing) Kruszewski re: proposed agreement (W. Bratic's Unaccepted License Expert Report 02/11/2008) Offers: Rule 403 - 20 Dallas 255218v1 Exhibit Withdrawn. Sustained. Sustained. Plaintiff's Trial Ex. No. [ANS0007815] PX232 02/08/2001 E-mail string from J. DeYoung re: final controllers? (Mark Baldwin, Baldwin Consulting, 02/11/2008) [MS-ANAS0156437] PX235 01/08/2007 "National Television Academy Announces Emmy Winning Achievements: Honors Bestowed at 58th Annual Technology & Engineering Emmy Awards" (Mark Baldwin, Baldwin Consulting, 02/11/2008) [ANS0069316 ANS0069319] PX236 01/24/2008 Answers from Laptop Experts, "Growth of gaming in 2007 far outpaces movies, music" (Mark Baldwin, Baldwin Consulting, 02/11/2008) [No Bates] PX237 09/29/2006 Memorandum from T. Grankcom to Xenon Competitive Trends/ Information re: ImmersionSponsored Survey Highlights Force Feedback Defendants' Objections (Prejudice, Confusion, Waste of Time) (unaccepted license offer); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Rule 802 (Hearsay) (only if offered for truth of matters asserted). Plaintiff's Response prejudicial, and may be authenticated. Also shows Anascape's willingness to license. Court's Ruling 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 (Authentication). Rule 403 (Prejudice, Confusion, Waste of Time). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 (Authentication). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 - 21 - Shows importance of features to the success of the controller, supports a finding that Microsoft copied the Dual Shock 2 controller, shows praise of the Dual Shock 2 controller. Shows praise of the Dual Shock controller, which practices at least one of the asserted claims. Exhibit Withdrawn. Make objection at trial. Shows size and importance of the video game industry, supporting Anascape's damages case. This article uses NPD data which Defendants' witnesses have admitted they use on a regular basis in the industry. This is a communication between Microsoft employees, which includes a link to a 3d party article. The fact that this article is being disseminated between company Make objection at trial. Sustained. Dallas 255218v1 Plaintiff's Trial Ex. No. Interest (Mark Baldwin, Baldwin Consulting, 02/11/2008) [MSANAS0141891 - MSANAS0141892] PX241 01/02/2008 Declaration of Michael Thumm [ANS0068799 ANS0068800] PX242 05/21/2007 STMicroelectronics LIS3L02AE 3-Axis Accelerometer - MEMS Process Review [ANS0068699 ANS0068798] PX243 02/14/2006 Analog Devices ADXL330 Three-Axis 2 g MEMS Accelerometer Process Review [ANS0068555 ANS0068698] PX247 Undated "Extreme 6DOF Controllers The Best in 3D Image Control" [No Bates] PX250 03/20/1989 TO 05/08/1992 "Inventor's Notebook" Defendants' Objections (Authentication). Plaintiff's Response employees shows that a Microsoft employee found the information herein worth sharing, which includes the importance of force feedback in game controllers. This is a business records affidavit. This is a business record, not an expert opinion. Court's Ruling Rule 802 (Hearsay) Overruled. PX252 04/14/1999 E-mail string from T. Holmdahl to S. Ashmun, K. Empey, G. Bacon re: Useful New Products [MS- Unreliable Expert Testimony: Rule 802 (Hearsay); Rule 803(6) (Record lacking trustworthiness); Rule 702 (Expert testimony); Fed. R. Civ. P. 26(a). Unreliable Expert Testimony: Rule 802 (Hearsay); Rule 803(6) (Record lacking trustworthiness); Rule 702 (Expert testimony); Fed. R. Civ. P. 26(a). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Rule 403 (Prejudice, Confusion, Waste of Time); Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of - 22 - Sustained. This is a business record, not an expert opinion. Sustained. Shows Anascape's marketed its willingness to license. May be authenticated by Brad Armstrong. Brad Armstrong's invention notebook corroborates conception. Authenticate at trial. Overruled. Corroborates 1999 meeting with Todd Holmdahl. Exhibit Withdrawn Dallas 255218v1 Plaintiff's Trial Ex. No. ANAS159959] PX253 04/14/1999 E-mail string from G. Bacon to T. Holmdahl re: Useful New Products [MSANAS159957-MSANAS159958] PX254 Undated GameInformer Magazine "World Exclusive God of War 2" [ANS0068553 ANS0068554] Defendants' Objections Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time). 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 (Authentication). Rule 701 (Opinion Testimony by Lay Witness). Plaintiff's Response Corroborates 1999 meeting with Todd Holmdahl. Court's Ruling Exhibit Withdrawn. PX260 Nintendo game, 1942, for Atari Undisclosed Document: Local Rule CV-26 (Not Disclosed During Discovery); Rule 403 (Prejudice, Confusion, Waste of Time). Undisclosed Document: Local Rule CV-26 (Not Disclosed During Discovery); Rule 403 (Prejudice, Confusion, Waste of Time). PX261 PX262 06/21/2002 Correspondence from K. Tyler at Anascape to S. Quan at Microsoft re: remaining patents (and Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of - 23 - Shows the market's awareness of features of the accused devices. Defendants have admitted that they track market awareness. This is not an opinion on invalidity or infringement such that rule 701 is implicated. An actual copy of the magazine will be used for the trial exhibit (self authenticating document). 1942 is a publicly available game for use with the Nintendo Entertainment System, and did not need to be produced by Anascape. Defendants have not shown any prejudice by this game. This document was from Nintendo's website, and is therefore publicly available, and need not be produced by Anascape. Furthermore, this documents shows Nintendo's marketing of one of its products, which mentions an accused controller. Supports pre-filing willfulness case, shows willingness to license. Make objection at trial. Sustained. Sustained. Exhibit Withdrawn. Dallas 255218v1 Plaintiff's Trial Ex. No. claims) on attached list of issued US patents in regards to Microsoft's Xbox Console, Controllers, and Software, Microsoft's Sidewinder Game Pad Pro, Microsoft's Intellimouse Explorer and Microsoft's Trackball Explorer [MSANAS0019338 - MSANAS0019339] PX264 02/12/2007 Microsoft's Privilege Log, Anascape v. Microsoft & Nintendo [No Bates] Defendants' Objections Time). Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 901 (Authentication). Plaintiff's Response Court's Ruling PX267 12/31/1996 United States Patent 5,589,828 (Anascape Response to Defendants' Motion for Summary Judgment re: No Willful Infringement) [NAA00014681 NAA00014700] PX271 Undated Nintendo Co., Ltd.'s Privilege Log [No Bates] Privilege Log: Defs' MIL No. 13 (Negative Inference from Privilege); Rule 403 (Prejudice, Misleading, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Defs' MIL No. 8 (Cheng Meeting). Privilege Log: Defs' MIL No. 13 (Negative Inference from Privilege); Rule 403 (Prejudice, Misleading, Confusion, Waste of Time). Privilege Log: Defs' MIL No. 13 (Negative Inference from Privilege); Rule 403 (Prejudice, Misleading, Confusion, Waste of Time). Rule 106 (Remainder/ Related Writing) (some of these responses were - 24 - Fact of communications about Armstrong's technology before Anascape filed suit supports Anascape's allegations of pre-filing willfulness. Fact that Cheng kept Armstrong's patents in his file supports a finding of pre-suit willfulness, and shows a finding that some of the features in this patent were valuable and important. Fact of communications about Armstrong's technology before Anascape filed suit supports Anascape's allegations of pre-filing willfulness. Fact of communications about Armstrong's technology before Anascape filed suit supports Anascape's allegations of pre-filing willfulness. Anascape will redact out of the document references to "infringed" in the Exhibit Withdrawn. Exhibit Withdrawn. PX272 07/12/2007 Nintendo Co., Ltd.'s Supplemental Privilege Log [No Bates] Exhibit Withdrawn. PX277 11/27/2007 Defendant Microsoft's Second Supplemental Exhibit Withdrawn. Dallas 255218v1 Defendants' Objections Response to Anascape's supplemented later); Interrogatory Nos. 1-19 Rule 403 (Prejudice, [No Bates] Confusion, Waste of Time) (at least responses 1, 2, 3, 7, 1017) contain some material not relevant to issues at this trial that would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). PX278 10/19/2007 Rule 106 (Remainder/ Defendant Nintendo of Related Writing) (some America, Inc.'s First of these responses were Supplemental Responses to supplemented later); Plaintiff Anascape, Ltd.'s Rule 403 (Prejudice, Corrected First Set of Confusion, Waste of Interrogatories (Nos. 3, 4, Time) (some responses 10, 13, 16 and 17) [No contain material not Bates] relevant to issues at this trial that would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Nintendo infringed patents"); Rule 802 (Hearsay) (only if offered against Microsoft). PX279 Undated Undisclosed Xbox.com, "Discover Document: Local greater precision, comfort Rule CV-26 (Not and control, Xbox 360 Disclosed During ControllerTM for Windows" Discovery); Rule 403 - 25 Dallas 255218v1 Plaintiff's Trial Ex. No. Plaintiff's Response interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence. Court's Ruling Anascape will redact out of the document references to "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence. Publicly available on Microsoft's website. No prejudice, as it is Microsoft's marketing of its own products. Exhibit Withdrawn. Plaintiff's Trial Ex. No. [No Bates] PX313 Undated Controller for Howard Cheng's files Defendants' Objections (Prejudice, Confusion, Waste of Time). Pre-Suit Interactions: Defs' MIL No. 5 (Presuit Interactions); Rule 403 (Prejudice, Confusion, Waste of Time); Defs' MIL No. 8 (Cheng Meeting). Plaintiff's Response Court's Ruling PX314 01/31/2008 Press Release - U.S. Video Game and PC Games Sales Exceed $18.8 Billion [No Bates] 3rd Party Article: Rule 802 (Hearsay) (only if offered for truth of matters asserted); Rule 602 (Lack of Personal Knowledge); Rule 901 (Authentication). PX315 Undated - U.S. Console Market Shares (Units) graph [No Bates] PX316 Undated Profitability of Microsoft's Accused Products [No Bates] PX317 Undated Profitability of NOA's Accused Products [No Bates] PX318 Undated - Rule 802 (Hearsay) (as to underlying data not from Microsoft or Nintendo); Defs' Bratic Daubert Motion (Dkt. # 212). Foreign Sales/Profits: Defs' MIL 17 (Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Foreign Sales/Profits: Defs' MIL 17 (Foreign Sales/Profits); Rule 403 (Prejudice, Confusion, Waste of Time). Defs' Bratic Daubert - 26 - This controller, which Armstrong provided to Cheng fully assembled, was produced in this litigation dismantled. This suggests that someone at Nintendo dismantled and examined the controller. This supports a finding of pre-suit willfulness, copying, and suggests the importance of the features of that controller. Defendants monitor NPD data, and this recitation of NPD data shows that Defendants were aware of this information. Not being offered for the truth of the matter but to show what information the market and Defendants were aware of relating to the size of the relevant markets. Summary Chart, damages expert will authenticate. Sustained. Summary Chart, damages expert will authenticate. Exhibit Withdrawn. Summary Chart, damages expert will authenticate. Summary Chart, damages Exhibit Dallas 255218v1 Plaintiff's Trial Ex. No. Microsoft Damages [No Bates] PX319 Undated - Xbox Controller S Royalty Base [No Bates] PX320 Undated - Xbox 360 System Controllers Royalty Base for 2006 and 2007 [No Bates] PX321 Undated - 360 System Controllers Royalty Base for 2006, 2007E and 2008E [No Bates] PX322 Undated - NOA Damages from 7/31/2006 to 5/4/2008 [No Bates] PX323 Undated - NOA Damages - U.S. from 7/31/2006 to 5/4/2008 [No Bates] PX324 Undated - NOA Damages - Latin America from 7/31/2006 to 5/4/2008 [No Bates] PX325 Undated - NOA Damages - Canada from 7/31/2006 to 5/4/2008 [No Bates] PX326 Undated Estimated NOA Controllers in Canada for 4/1/2006 to 3/31/2007 [No Bates] PX327 Undated Estimated NOA Controllers for 4/1/2007 to 3/31/2008 [No Bates] PX328 Undated - Imputed Per Unit Royalty Rate [No Bates] PX329 11/27/2007 Defendant Microsoft's Second Supplemental Response to Anascape's Interrogatory No.1[No Defendants' Objections Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Defs' Bratic Daubert Motion (Dkt. # 212). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some - 27 - Plaintiff's Response expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Summary Chart, damages expert will authenticate. Court's Ruling Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Exhibit Withdrawn. Anascape will redact out of Exhibit the document references to Withdrawn. "infringed" in the interrogatories and the general objections and Dallas 255218v1 Plaintiff's Trial Ex. No. Bates] PX330 11/27/2007 Defendant Microsoft's Second Supplemental Response to Anascape's Interrogatory No. 6 [No Bates] PX331 11/27/2007 Defendant Microsoft's Second Supplemental Response to Anascape's Interrogatory No. 7 [No Bates] Defendants' Objections interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) (contains some material not relevant to issues at this trial that would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) (contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) (contains some material not relevant to issues at this trial that - 28 - Plaintiff's Response specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without answers and any incomplete answer. Court's Ruling Anascape will redact out of Exhibit the document references to Withdrawn. "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without answers and any incomplete answer. Anascape will redact out of Exhibit the document references to Withdrawn. "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without Dallas 255218v1 Plaintiff's Trial Ex. No. PX332 11/27/2007 Defendant Microsoft's Second Supplemental Response to Anascape's Interrogatory No. 15 [No Bates] PX333 11/27/2007 Defendant Microsoft's Second Supplemental Response to Anascape's Interrogatory No. 22 [No Bates] Defendants' Objections would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) (contains some material not relevant to issues at this trial that would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) (contains some material not relevant to issues at this trial that - 29 - Plaintiff's Response answers and any incomplete answer. Court's Ruling Anascape will redact out of Exhibit the document references to Withdrawn. "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without answers and any incomplete answer. Anascape will redact out of Exhibit the document references to Withdrawn. "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without Dallas 255218v1 Plaintiff's Trial Ex. No. PX334 1/29/2007 Defendant Nintendo of America, Inc.'s Responses to Plaintiff Anascape, Ltd.'s Corrected Interrogatory No. 1 [No Bates] Defendants' Objections would prejudice Defendants and confuse the jury; document also contains inflammatory characterizations such as "Microsoft infringed patents"); Rule 802 (Hearsay) (only if offered against Nintendo). Rule 106 (Remainder/ Related Writing) (this document is incomplete and includes partial responses to some interrogatories); Rule 403 (Prejudice, Confusion, Waste of Time) Rule 802 (Hearsay) (only if offered against Microsoft). Plaintiff's Response answers and any incomplete answer. Court's Ruling PX335 1/29/2007 Defendant Nintendo of America, Inc.'s Responses to Plaintiff Anascape, Ltd.'s Corrected Interrogatory No. 6 [No Bates] PX336 1/29/2007 Defendant Nintendo of America, Inc.'s Responses to Plaintiff Anascape, Ltd.'s Corrected Interrogatory No. 7 [No Bates] Anascape will redact out of the document references to "infringed" in the interrogatories and the general objections and specific objections; Interrogatory responses are properly admissible into evidence; Anascape will redact out of the document interrogatories without answers and any incomplete answer. Rule 106 (Remainder/ Anascape will redact out of Related Writing) (this the document references to document is incomplete "infringed" in the and includes partial interrogatories and the responses to some general objections and interrogatories); Rule specific objections; 403 (Prejudice, Interrogatory responses are Confusion, Waste of properly admissible into Time) Rule 802 evidence; Anascape will (Hearsay) (only if redact out of the document offered against interrogatories without Microsoft). answers and any incomplete answer. Rule 106 (Remainder/ Anascape will redact out of Related Writing) (this the document references to document is incomplete "infringed" in the and includes partial interrogatories and the responses to some general objections and interrogatories); Rule specific objections; 403 (Prejudice, Interrogatory responses are - 30 - Dallas 255218v1 Plaintiff's Trial Ex. No. properly admissible into evidence; Anascape will redact out of the document interrogatories without answers and any incomplete answer. PX337 10/19/2007 Rule 106 (Remainder/ Anascape will redact out of Defendant Nintendo of Related Writing) (this the document references to America, Inc.'s First document is incomplete "infringed" in the Supplemental Response to and includes partial interrogatories and the Plaintiff Anascape, Ltd's responses to some general objections and Corrected Interrogatory interrogatories); Rule specific objections; No. 13 [No Bates] 403 (Prejudice, Interrogatory responses are Confusion, Waste of properly admissible into Time) Rule 802 evidence; Anascape will (Hearsay) (only if redact out of the document offered against interrogatories without Microsoft). answers and any incomplete answer. PX339 02/2002 Article Shows Defendants' 3rd Party Article: Rule 802 (Hearsay) awareness of the entitled Innovation and (only if offered for competitiveness of the Competition in StandardBased Industries: A truth of matters video game industry, asserted); Rule 602 Historical Analysis of the which supports secondary (Lack of Personal U.S. Home Video Game indicia of nonobviousness, Market (Bratic Report) [No Knowledge); Rule 701 and suggests value for (Opinion Testimony by technologies that enhance Bates] Lay Witness); Rule 901 gaming experiences. (Authentication). PX340 10/06/2007 Article 3rd Party Article: Shows Defendants' from Georgia Institute of Rule 802 (Hearsay) awareness of the Technology entitled (only if offered for competitiveness of the Georgia Tech Boosts Video truth of matters video game industry, Gaming Industry (Bratic asserted); Rule 602 which supports secondary Report) [No Bates] (Lack of Personal indicia of nonobviousness, Knowledge); Rule 701 and suggests value for (Opinion Testimony by technologies that enhance Lay Witness); Rule 901 gaming experiences. (Authentication). Shows Defendants' PX341 06/04/2007 Article 3rd Party Article: Authenticate at Rule 802 (Hearsay) awareness of the from techonline entitled trial. (only if offered for competitiveness of the Opportunities abound in truth of matters video game industry, nex-gen gaming platforms which supports secondary (Bratic Report) [No Bates] asserted); Rule 602 - 31 Dallas 255218v1 Defendants' Objections Confusion, Waste of Time) Rule 802 (Hearsay) (only if

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