[00:00:00] Speaker 04:
The last case for argument is 20-2011, Apple v. Whelan.

[00:00:05] Speaker 04:
Mr. Davies, please proceed.

[00:00:08] Speaker 02:
May it please the court.

[00:00:10] Speaker 02:
We have three topics to discuss this morning.

[00:00:13] Speaker 02:
The consistent use of a claim term and specification, direct infringement, and proper apportionment of damages, particularly after Omega.

[00:00:26] Speaker 02:
I'm happy to talk about those in any order.

[00:00:28] Speaker 02:
But may as well start at the beginning.

[00:00:31] Speaker 02:
Claim construction.

[00:00:33] Speaker 04:
Why don't you go ahead and start with damages?

[00:00:37] Speaker 02:
Happy to start.

[00:00:38] Speaker 02:
Thank you.

[00:00:44] Speaker 02:
And as I just mentioned, the key principle of damages in this court is proper apportionment.

[00:00:50] Speaker 02:
If you're going to look at other licenses that include a portfolio of patents,

[00:00:57] Speaker 02:
You have to figure out the value of the particular patents that you're trying to value.

[00:01:04] Speaker 02:
And that was just not done here.

[00:01:07] Speaker 02:
Actually, there's a good phrase, good facts make good law.

[00:01:11] Speaker 02:
This is a very stark example of an expert not trying to value the relevant inventions.

[00:01:20] Speaker 02:
The incremental value of this invention, and there's three aspects to look at.

[00:01:27] Speaker 02:
In our yellow brief at page 29, we quote the expert, Mr. Skippen, conceding... The expert was Mr. Kennedy, right?

[00:01:36] Speaker 02:
Sorry.

[00:01:37] Speaker 02:
Sorry about it.

[00:01:37] Speaker 02:
Well, I can get back to Mr. Skippen in a second.

[00:01:39] Speaker 02:
I'm jumping ahead.

[00:01:41] Speaker 02:
The expert Kennedy said... The quote is from the expert Kennedy quoting what Mr. Skippen told him.

[00:01:49] Speaker 02:
Mr. Skippen told you that any subset of Weiland's portfolio

[00:01:54] Speaker 02:
gets a twenty-five percent discount, right?

[00:01:58] Speaker 02:
Any subset gets twenty-five percent discount, and the answer is yes.

[00:02:01] Speaker 04:
Which portion of the appendix are you reading from?

[00:02:03] Speaker 02:
Fifteen, three, three, six, one.

[00:02:14] Speaker 02:
So that is their expert saying that regardless of the value of the particular patented issue here, the answer is

[00:02:23] Speaker 02:
75% of the comparable patent.

[00:02:27] Speaker 02:
It's also at 15338 where we're talking about Bluetooth.

[00:02:31] Speaker 02:
What is the answer to the value of Bluetooth?

[00:02:34] Speaker 02:
Well, a single Bluetooth patent here would be 75%.

[00:02:38] Speaker 05:
So what, in your view, would have been sufficient in terms of to make these license comparable?

[00:02:45] Speaker 05:
For example, if the three licenses we're talking about, if they had called out the two patents that are in dispute here as being principal or whatever they do in licenses, listing them out, that would have been enough, right?

[00:02:59] Speaker 02:
It would have to be an effort to assess the technological value.

[00:03:04] Speaker 02:
of the patent.

[00:03:05] Speaker 02:
So if Your Honor were to look at what that expert did and assess that was tried, then that would be enough.

[00:03:12] Speaker 02:
But that is not what happened in this case.

[00:03:14] Speaker 05:
I'm not talking about so much what the expert did.

[00:03:16] Speaker 05:
I'm talking about the licenses themselves and their comparability.

[00:03:20] Speaker 05:
So if you had three other licenses with other people, how close would they have had to be

[00:03:26] Speaker 05:
to make them reliable in this circumstance.

[00:03:30] Speaker 05:
If each of those licenses had called out the 145 and the 757, good enough?

[00:03:39] Speaker 02:
In a patent portfolio of 1,000, the comparable license here gave those companies access to 1,000 patents.

[00:03:47] Speaker 02:
So in Omega, it was 40.

[00:03:48] Speaker 02:
So you'd have to somehow link the panther issue here.

[00:03:52] Speaker 03:
But suppose, to follow up on, I see where you're going.

[00:03:55] Speaker 03:
But to follow up on Joe's first question, suppose the three licenses had all said the asserted paths, the 145 and the 757, and the rest of it is what I think Mr. Skippen called chaff, and is thrown in for an extra 25%.

[00:04:13] Speaker 03:
Wouldn't that be good enough to bring those

[00:04:17] Speaker 03:
licenses into the realm of evidence that's acceptable on the question of valuation.

[00:04:27] Speaker 02:
you have to assess the value of the invention.

[00:04:30] Speaker 02:
And pointing to 1,000 other patents, or 999 patents, doesn't help do that.

[00:04:37] Speaker 02:
It's giving value here.

[00:04:39] Speaker 05:
OK, so let's further the hypothetical.

[00:04:42] Speaker 05:
What if they had witnesses or testimony with respect to each of those licenses, and the people negotiating said, well, yeah, we were forced to license the entire portfolio, but we were really after these two particular patents?

[00:04:57] Speaker 05:
That'd be enough, right?

[00:05:01] Speaker 02:
It would be closer, but it depends why they are really after it.

[00:05:05] Speaker 02:
And we know the reason here, Your Honor, is because of the litigation risk.

[00:05:09] Speaker 02:
Nothing to do with the technology of the pen.

[00:05:11] Speaker 02:
And you know, under section 284, under Garretson, the goal of this process, the apportionment process, is to capture what this inventor has given the public, the incremental value.

[00:05:21] Speaker 02:
Let's take away the conventional features.

[00:05:23] Speaker 02:
What did this person contribute?

[00:05:25] Speaker 02:
And if we're going to price that based on other patents, and there's 1,000 other licenses, and then there's 1,000 other patents granted by that license.

[00:05:33] Speaker 04:
Let me just do a couple of quick housekeeping things related to this.

[00:05:37] Speaker 04:
you didn't challenge the licenses themselves as inadmissible.

[00:05:42] Speaker 04:
The licenses are admissible.

[00:05:46] Speaker 04:
These licenses are admissible.

[00:05:47] Speaker 04:
What you're challenging is Kennedy's claim that any two of

[00:05:53] Speaker 04:
the thousand could be worth 75 percent.

[00:05:57] Speaker 02:
Is that right?

[00:05:58] Speaker 04:
Yeah, the across-the-board... So this isn't a challenge to the license because we've had many cases, vernetics included, where we've allowed in licenses even though they're not to the patented issue and in this case two of the three mention one or more of these patents.

[00:06:14] Speaker 04:
One in the jump section, one in the list of six,

[00:06:17] Speaker 04:
So you're not saying that the licenses are inadmissible.

[00:06:20] Speaker 04:
What you're saying is what an expert can't come in and do is offer general conclusory testimony about value without somehow linking it to the technology or the patents or the licenses or something.

[00:06:33] Speaker 04:
Is that fair?

[00:06:34] Speaker 02:
Thank you.

[00:06:34] Speaker 02:
I do think that's accurate.

[00:06:36] Speaker 02:
And thank you for taking us out of the hypothetical.

[00:06:40] Speaker 05:
Because the hypothetical is you're pushing the envelope possibly.

[00:06:46] Speaker 05:
But this case, as the chief explained, seems to be narrower in terms of what you're needing.

[00:06:51] Speaker 02:
Right.

[00:06:51] Speaker 02:
And that's why we're here, to discuss hypotheticals.

[00:06:54] Speaker 02:
I didn't mean to suggest otherwise.

[00:06:55] Speaker 02:
But if you go to appendix 59,

[00:06:57] Speaker 02:
That is the district court here.

[00:07:00] Speaker 02:
This is another remarkable one of these facts.

[00:07:02] Speaker 02:
Dependix 59, it's the district court, rightly saying you have to account for the fact that these licenses were to Weiland's entire portfolio, which is what we're talking about, right?

[00:07:14] Speaker 02:
It's a license to the entire portfolio.

[00:07:18] Speaker 02:
Clearly, he then continues, this is a distinction that needs to be accounted for.

[00:07:23] Speaker 02:
And then he doesn't.

[00:07:24] Speaker 02:
He lets it in.

[00:07:25] Speaker 02:
So the principle is stated.

[00:07:26] Speaker 02:
It has to be accounted for.

[00:07:27] Speaker 02:
The problem is stated.

[00:07:29] Speaker 02:
But then he lets it in.

[00:07:31] Speaker 02:
And that's exactly what this court has to adjust, change.

[00:07:36] Speaker 02:
Because the principle is there, but recognized by the district court.

[00:07:40] Speaker 02:
So we have 1,000 patent portfolio.

[00:07:42] Speaker 02:
Judge Moore, as you said, they were not on balance.

[00:07:45] Speaker 02:
One of them was not discussed, not asserted.

[00:07:48] Speaker 02:
Those 1,000 patents, you honor, they're not meaningless.

[00:07:52] Speaker 02:
I mean, the claim is those are on CDMA.

[00:07:55] Speaker 04:
Let's stick with 59 for a minute, and I'm going to take you out of the specifics of the case and more generally.

[00:08:01] Speaker 04:
What you're looking to have this court do is to conclude that when an expert makes a conclusory statement that is actually untethered to the facts he relies on, that's a basis upon which we can dullbert him.

[00:08:13] Speaker 04:
It's not just methodology, you know, but in this case, it's statement, a rule of thumb, this 75%, 25%, whatever,

[00:08:22] Speaker 04:
that is untethered to the facts.

[00:08:25] Speaker 02:
Exactly.

[00:08:26] Speaker 02:
Untethered.

[00:08:29] Speaker 02:
And another clear thing from the record here is that 25%, it was not arbitrary.

[00:08:35] Speaker 02:
The untetheredness was actually explained.

[00:08:37] Speaker 02:
It's recognizing the risk of litigation.

[00:08:40] Speaker 02:
And that's at 15342.

[00:08:43] Speaker 02:
And here's how we get there.

[00:08:44] Speaker 02:
Mr. Skippen says, well, these are my crown jewels.

[00:08:47] Speaker 02:
That's why I'm asking for 75%.

[00:08:48] Speaker 04:
I don't even understand that testimony.

[00:08:50] Speaker 04:
Let me back you up for a second.

[00:08:51] Speaker 04:
You know, his crown jewels, isn't he saying, because at one point he says these have become very, very valuable.

[00:08:58] Speaker 04:
Yes.

[00:08:59] Speaker 04:
He's meaning now.

[00:09:01] Speaker 00:
Yes.

[00:09:01] Speaker 04:
Now that they've been through litigation, they've been head valid and infringed, I don't understand that to be

[00:09:06] Speaker 04:
what everyone would understand in 2014.

[00:09:08] Speaker 04:
In 2014, you've got three licenses, one of which puts these two patents in the junk category, the chaff category, the everything else category.

[00:09:16] Speaker 04:
You've got one license that never mentions them, despite their existence, the Dorough license.

[00:09:20] Speaker 04:
So I understood his testimony to be directed to, yeah, once two patents have been found valid and infringed and the jury gives us 135 million, they are now our crown jewels.

[00:09:32] Speaker 02:
Exactly, Your Honor, and some sites, Your Honor, 15342, which is where the expert says, oh, that phrase, crown jewels, I know what that means.

[00:09:40] Speaker 02:
That's used in the industry.

[00:09:42] Speaker 02:
It means that the patent has been valid and infringed.

[00:09:44] Speaker 02:
So nothing about the incremental value.

[00:09:47] Speaker 02:
And it's double counting because he actually adjusts in his analysis.

[00:09:51] Speaker 02:
He does adjust for validity and infringement.

[00:09:55] Speaker 05:
Mr. Lamkin would probably do better than I, but what would you respond to the argument that fine, you've made some arguments today, the same kind of arguments that could have been readily at ease

[00:10:08] Speaker 05:
made on cross-examination with respect to the testimony by Skippen and Kennedy pointing out the lack of comparability, the lack of reliability, and all of this stuff.

[00:10:20] Speaker 05:
So why isn't this

[00:10:23] Speaker 05:
a question of us evaluating the, I mean, it may come out the same or it might come out different depending on which way we're looking at it.

[00:10:30] Speaker 05:
But why isn't that a matter for trial and juries and cross-examination and not as you would have it for excluding the testimony of the expert?

[00:10:43] Speaker 02:
It's important we not go too far, because it is the case that the jury has a role.

[00:10:48] Speaker 02:
And if the assessment is reasonably approximate to the value, OK.

[00:10:52] Speaker 02:
But there was no effort made.

[00:10:53] Speaker 02:
And that is something this court can't police.

[00:10:56] Speaker 02:
Expert has to try.

[00:10:57] Speaker 02:
We're not saying the try has to be 100% on.

[00:11:00] Speaker 02:
But there was no effort here.

[00:11:01] Speaker 02:
It was a simple, I have this rule at 75% because of litigation.

[00:11:05] Speaker 02:
And I'm going to apply it.

[00:11:06] Speaker 02:
I'm not going to try.

[00:11:07] Speaker 02:
And that's why it's a downward issue, because there was no effort to try.

[00:11:11] Speaker 02:
And your honor, at this time, I would like to talk about claim construction and infringement, if that's okay.

[00:11:21] Speaker 02:
The district court tees up the claim construction issue, and it's at Appendix 5.

[00:11:27] Speaker 02:
And the question is whether the subscriber unit station

[00:11:30] Speaker 02:
should be construed as fixed or portable.

[00:11:33] Speaker 04:
I'm sorry, I gotta take you back.

[00:11:34] Speaker 04:
I'm just not done with the other issue.

[00:11:37] Speaker 04:
The result that you sought is that we would vacate and remand and say that Kennedy's expert opinion as proffered wasn't sufficiently tied to the facts and he came up with this rule of thumb and that's a no-no.

[00:11:53] Speaker 04:
Doesn't the result, you're then going to just have a neutral on damages.

[00:11:56] Speaker 04:
Is that right?

[00:11:57] Speaker 04:
I mean, I don't see any other possible relief.

[00:12:00] Speaker 04:
You're just going to go back for a neutral on damages?

[00:12:03] Speaker 02:
Well, I hope to convince you on claim construction, Your Honor.

[00:12:08] Speaker 02:
OK, well, let's just stick with damages.

[00:12:09] Speaker 02:
But if we don't get there, then yes, we'd have to try it again.

[00:12:12] Speaker 04:
Neutral on damages, and then Kennedy is just going to pivot a third time, and now we're going to have a third theory on damages, right?

[00:12:21] Speaker 04:
I'm not going to exclude him for all time.

[00:12:25] Speaker 04:
That's not what you're asking me to do.

[00:12:26] Speaker 04:
That's not what we're doing here.

[00:12:28] Speaker 04:
So you just end up with a third trial on damages.

[00:12:31] Speaker 02:
Yes, you're right.

[00:12:32] Speaker 02:
I think that happened in Omega as well.

[00:12:34] Speaker 05:
There's no case that says two tries in your own life.

[00:12:39] Speaker 05:
I mean, I'm asking, sincerely, is there a basis for saying that the other side had several opportunities to make their case undamaged?

[00:12:48] Speaker 05:
The burden is clearly on them to make their case.

[00:12:51] Speaker 05:
I don't want to make a case argument for you.

[00:12:53] Speaker 05:
You didn't ask for it in your briefs, but I'm just following up on what the chief was asking about.

[00:12:58] Speaker 02:
Yes, and we would accept that result.

[00:13:00] Speaker 02:
Well, yeah.

[00:13:01] Speaker 00:
Of course.

[00:13:02] Speaker 02:
And look, just to follow up on that.

[00:13:03] Speaker 02:
I mean, the district court got frustrated.

[00:13:05] Speaker 02:
It gave a lot of tolerance to the experts here.

[00:13:08] Speaker 02:
There's a cross-appeal.

[00:13:09] Speaker 02:
And so I don't mean to detract from the effort of this court to have this district court properly treated and the litigation properly resolved.

[00:13:19] Speaker 02:
And if your experience is this is now the time to end this,

[00:13:21] Speaker 02:
you know, we would defer to you on that.

[00:13:24] Speaker 04:
Well, I mean, I wouldn't begin to know how to end it.

[00:13:26] Speaker 04:
I mean, so I don't see how I could.

[00:13:28] Speaker 04:
I was just sort of lamenting the notion of potentially sending this back for a third trial.

[00:13:33] Speaker 02:
It's just... Can we all settle this?

[00:13:38] Speaker 02:
There's another great question from Mr. Lampkin.

[00:13:40] Speaker 05:
Well, we'd rather we decide this because we go with him.

[00:13:43] Speaker 03:
What would the role of

[00:13:48] Speaker 03:
a determination of insufficiency of the evidence as opposed to excluding the expert's testimony have in determining what our judgment would be, i.e.

[00:13:59] Speaker 03:
Could we say, well, the evidence was just insufficient, and therefore no new trial?

[00:14:05] Speaker 03:
What would be the consequence?

[00:14:06] Speaker 02:
Yes.

[00:14:07] Speaker 02:
Yes, and the record would support that result, Your Honor.

[00:14:09] Speaker 02:
And as we have been talking, when you actually just look at the evidence, there is an expert saying.

[00:14:17] Speaker 03:
Wouldn't that always be the case when you're throwing out an expert's testimony?

[00:14:23] Speaker 03:
And yet, as I think the Chief Judge

[00:14:26] Speaker 03:
pointed out that we do that a lot.

[00:14:28] Speaker 03:
We usually send it back.

[00:14:30] Speaker 03:
We don't ask.

[00:14:31] Speaker 03:
We don't say, look, your expert was inadmissible.

[00:14:36] Speaker 03:
And without that testimony, you have not sufficient evidence to go to the jury.

[00:14:40] Speaker 03:
And therefore, you lose.

[00:14:42] Speaker 03:
No remand.

[00:14:43] Speaker 03:
Yes, yes.

[00:14:44] Speaker 03:
When do we?

[00:14:45] Speaker 03:
When do we do the latter?

[00:14:47] Speaker 02:
I defer to you on that, Your Honor.

[00:14:50] Speaker 04:
In other words, he has no basis for trying to tell you to give him what he wants, so he's hoping you'll come up with one.

[00:14:58] Speaker 02:
No, I think this is an extreme case.

[00:15:00] Speaker 02:
I mean, this is in a thousand-pound portfolio.

[00:15:02] Speaker 02:
This is not... It's not that extreme a case.

[00:15:04] Speaker 04:
There's tons of other evidence.

[00:15:05] Speaker 04:
There's the Kicera, the LG, the Motorola.

[00:15:07] Speaker 04:
There's the lump sums.

[00:15:08] Speaker 04:
There's a lot of damages evidence here, and you can't possibly imagine we're going to parse that in the first instance and say, ah, Apple's $10 million.

[00:15:15] Speaker 04:
So, NAPL's potential number is the right one.

[00:15:17] Speaker 04:
I mean, that's not what we do on fat questions.

[00:15:21] Speaker 02:
So, if we talked about, if we could just, on claim construction, that's another way out, Your Honor.

[00:15:25] Speaker 02:
We could add a case for claim construction.

[00:15:26] Speaker 04:
Okay, I'll give you 30 seconds.

[00:15:27] Speaker 04:
Go.

[00:15:27] Speaker 02:
30 seconds on claim construction.

[00:15:29] Speaker 02:
When you look at the claim language, there is no plain meaning for a subscriber unit.

[00:15:34] Speaker 02:
When you look at the specification itself, the word CPE is used over 400 times.

[00:15:39] Speaker 02:
And when you look in the present, when it's used in the present invention context, for example, at column 12, row 58 to 62, you will see that the present invention is not necessarily an embodiment.

[00:15:54] Speaker 02:
So it says the present invention, and it includes the word CPE.

[00:15:58] Speaker 02:
It does the same thing in column 19, 21 to 45, the same thing in column 20, 34 to 54.

[00:16:04] Speaker 02:
So the present invention here includes a CPE.

[00:16:07] Speaker 02:
The subscriber unit in the claim term is not instructed one way or the other.

[00:16:13] Speaker 02:
And so under this court's doctrine of consistent use, the CPE used so frequently in the present invention context suggests the subscriber unit has to need a CPE.

[00:16:24] Speaker 02:
And therefore, that's what the construction should be around.

[00:16:27] Speaker 04:
Okay, thank you, Mr. Davies.

[00:16:29] Speaker 04:
We'll restore your rebuttal time.

[00:16:33] Speaker 04:
Mr. Lampton.

[00:16:49] Speaker 01:
Thank you, Your Honor.

[00:16:50] Speaker 01:
I'll start with damages, I think, given the prior discussion.

[00:16:52] Speaker 05:
Can I just say, I only have one question on claim construction, so maybe we can get that out of the way and focus on it.

[00:17:00] Speaker 05:
Should we not be troubled?

[00:17:01] Speaker 05:
I mean, this case, as far as I understand, there's no prosecution history.

[00:17:05] Speaker 05:
PCE was the name of the game of the claims and the spec.

[00:17:08] Speaker 05:
And then the claims are amended to put this new term in the subscriber unit.

[00:17:15] Speaker 05:
Correct me if I'm wrong, but there's no indication of why that was done, how that was done, what the consequences of that would be.

[00:17:23] Speaker 05:
So that's what's kind of troubling me about how this goes down.

[00:17:28] Speaker 05:
And now we're here and we're fussing over the details of the language, but there's a lot at stake.

[00:17:34] Speaker 05:
And we're left to try to parse this whole thing.

[00:17:38] Speaker 05:
And didn't the patent owner have some obligation to help us out here with some clarity on PCE versus subscriber units?

[00:17:45] Speaker 05:
Sorry.

[00:17:46] Speaker 01:
And I think I can provide that clarity.

[00:17:47] Speaker 01:
But first, the fact that there was an amendment shows that there's a difference.

[00:17:51] Speaker 01:
Because otherwise, the amendment would have been utterly pointless.

[00:17:53] Speaker 05:
Fair enough.

[00:17:54] Speaker 05:
But that doesn't help the court in evaluating the consequences of that amendment.

[00:17:57] Speaker 01:
Yeah, why don't I turn let's start to then with where the word customer premises equipment first appears in the specification in the 145 and that's column 2 on page 308 And it's talking about a proposed system So it's not our invention and it says that it is a two-way communication system with a plurality of base stations and a plurality of fixed

[00:18:17] Speaker 01:
subscriber stations for customer premises equipment, CPE.

[00:18:22] Speaker 01:
You go down to line 14 and it talks about fixed locations for customer premises equipment.

[00:18:28] Speaker 01:
So that's talking about fixed subscriber equipment.

[00:18:32] Speaker 01:
And that can't possibly be describing the entirety of the game, because we know that this covers portable subscriber units too.

[00:18:40] Speaker 01:
And after that, this is all describing

[00:18:43] Speaker 01:
the implementation of this invention in the context of that system with a fixed subscriber unit.

[00:18:49] Speaker 01:
It's not excluding.

[00:18:50] Speaker 01:
There's no language of express exclusion saying you can't have a mobile subscriber unit as part of the phone.

[00:18:55] Speaker 01:
In fact, exactly the opposite.

[00:18:57] Speaker 01:
When you look at the first time subscriber unit pops up, and that's in column one, it talks about it in the context of a

[00:19:03] Speaker 01:
fixed or portable system, and it says an exemplary system is a mobile cellular telephone system.

[00:19:09] Speaker 01:
And Apple concedes at page six and seven of the reply that in that system, the subscriber unit is the phone.

[00:19:15] Speaker 01:
And so there's just no way of saying the subscriber unit can't be part of that.

[00:19:18] Speaker 05:
You read.

[00:19:19] Speaker 05:
I'm sorry.

[00:19:20] Speaker 05:
No, I was going to conclude.

[00:19:23] Speaker 03:
You read, in that context, you read the word portable to include mobile.

[00:19:28] Speaker 01:
I don't think there is a category of something that's portable, mobile, but not portable.

[00:19:33] Speaker 03:
It shows up in your opposing council's brief.

[00:19:36] Speaker 03:
It shows up in your opposing counsel.

[00:19:38] Speaker 01:
Yes, but it doesn't make sense.

[00:19:40] Speaker 01:
If it's mobile, it's also portable.

[00:19:41] Speaker 01:
And in fact, for example, one of the cases we cite where subscriber units used, the opinion refers to it as a portable phone, which that's the subscriber unit.

[00:19:50] Speaker 01:
And that's just us, mobile phone.

[00:19:52] Speaker 01:
And it's also, in the case, if you look at the

[00:19:55] Speaker 01:
The 7-5-7 pattern, it's very clear that it doesn't have to be a three-box system, you don't have to have a separate piece that's called CPE or something like that, because it says flat out, the functionality provided in the components and modules, and here, the subscribing is defined as a module, may be combined into fewer components and modules or further separated.

[00:20:11] Speaker 01:
And so you can combine your subscriber unit and make it part of your phone.

[00:20:14] Speaker 01:
There's no prohibition on that.

[00:20:16] Speaker 01:
That makes perfect sense.

[00:20:16] Speaker 01:
This is a spec from 2000 or so, at a time of rapid miniaturization, rapid increases in computing power.

[00:20:23] Speaker 01:
And so they're saying, look, you can put that subscriber unit where you want.

[00:20:26] Speaker 01:
You can make it an ASIC.

[00:20:27] Speaker 01:
It doesn't have to be a gigantic box like the computers of yore.

[00:20:31] Speaker 01:
Turning to damages, then.

[00:20:34] Speaker 04:
Before you get too deep into damages, a housekeeping matter, can you turn to page 57 of your brief?

[00:20:49] Speaker 04:
The relevant time for the hypothetical negotiation is 2014, correct?

[00:20:53] Speaker 04:
Correct.

[00:20:55] Speaker 04:
On page 57, under the heading case-specific tailoring, do you see where you say at the relevant time?

[00:21:02] Speaker 04:
Do you see that word?

[00:21:03] Speaker 00:
Yes.

[00:21:04] Speaker 04:
The 145 and 757 were crown jewel key patents that phone makers like Dorough focused on in negotiations.

[00:21:12] Speaker 04:
That's not accurate, is it?

[00:21:14] Speaker 01:
I'm cringing as I say that because that wouldn't be Dorro.

[00:21:16] Speaker 01:
That would have been something they got focused on.

[00:21:18] Speaker 04:
Okay, so it's a typo.

[00:21:19] Speaker 04:
You made a mistake.

[00:21:20] Speaker 01:
It's definitely a mistake.

[00:21:21] Speaker 01:
Dorro brought it up in a later time in the 2018 time period.

[00:21:25] Speaker 04:
And 2018 renegotiation.

[00:21:26] Speaker 01:
Exactly, Your Honor.

[00:21:27] Speaker 01:
And that's my apologies.

[00:21:30] Speaker 01:
would certainly, in some sense, be informative.

[00:21:32] Speaker 01:
You wouldn't exclude it from evidence.

[00:21:34] Speaker 01:
It would be relevant.

[00:21:35] Speaker 01:
But it wouldn't be the best evidence because it's not right at that time frame.

[00:21:38] Speaker 01:
But I think what I want to focus on is the degree to which Mr. Kennedy actually tied this royalty to the specific facts of this case.

[00:21:48] Speaker 03:
But to get into the weeds here, and I think that's where this case ends up being decided, it seemed to me that the only

[00:21:55] Speaker 03:
license of the three niche licenses that talks about the 145 of the 757 at all is, with respect to the asserted patents, is the Virtu, which refers only to the 145.

[00:22:11] Speaker 03:
The others have references to asserted patents that don't include the 145, the 757, and two of them don't even have a listing that includes those patents among the thousands.

[00:22:24] Speaker 03:
So my question to you is, how can you square Kennedy's testimony with the fact that two of these licenses don't refer to these as assertive patents, and one of them only refers to one, along with five others?

[00:22:39] Speaker 01:
And that's because I do not agree with the caricature that he said, if it's listed, it's 70%.

[00:22:44] Speaker 01:
That's not at all what he's doing.

[00:22:46] Speaker 01:
He's talking about this specific negotiation.

[00:22:49] Speaker 01:
And he starts out.

[00:22:50] Speaker 03:
OK.

[00:22:51] Speaker 03:
Suppose we accept that proposition.

[00:22:54] Speaker 03:
that, you know, that Kennedy didn't really need to say any two.

[00:22:58] Speaker 03:
Pick them out of 1,000.

[00:22:58] Speaker 03:
And that is something that happens.

[00:23:00] Speaker 01:
And I don't think that's what he meant in the jury.

[00:23:01] Speaker 03:
I understand.

[00:23:02] Speaker 03:
And I can see where in the record there was some back and forth on that.

[00:23:06] Speaker 03:
But even assuming that you're right about that, how do you answer the question of why Duro and Inecto, in particular, are relevant?

[00:23:18] Speaker 03:
Or that is to say, why Kennedy's reliance on them is probative, given that they throw

[00:23:24] Speaker 03:
those two licenses into the CHAF category?

[00:23:28] Speaker 01:
Well, Your Honor, these are licenses for the same technologies.

[00:23:31] Speaker 01:
They cover the technologies, and they are for the same type of phone.

[00:23:35] Speaker 01:
So this is all, and I don't understand, Apple was saying that these are not admissible.

[00:23:40] Speaker 01:
And the point of it is that when Mr. Kennedy went through this, he didn't just say, oh, I think this is Weider, this is CHAF.

[00:23:46] Speaker 01:
He actually went through and explained why these were the key components and why people would pay for these licenses.

[00:23:53] Speaker 01:
And let me start out.

[00:23:54] Speaker 01:
It's not just the crown jewels that Chief Judge Moore pointed out.

[00:23:57] Speaker 01:
If you look at page 15 through 20, 15236 and 15237 of the record, he's discussing why these are critical to an absolutely important system, and that is Volte voice over LTE.

[00:24:10] Speaker 01:
And if you don't have these patents, if you can't practice it, the voice component gets squashed anytime your phone

[00:24:16] Speaker 01:
decides to download an app, decides to update something, or is downloading emails.

[00:24:21] Speaker 01:
You don't have workable voice without this technology.

[00:24:24] Speaker 01:
And he's talking about that this is an absolutely critical technology.

[00:24:27] Speaker 01:
And then he turns around and says, and the other ones, he's talking about the enormous value of the licensee there, he turns around and says, you know, the other things in this particular portfolio for phone makers are less valuable.

[00:24:38] Speaker 04:
But the one thing I'm confused about is on 15-237 and 238,

[00:24:43] Speaker 04:
I mean one of the things that's clear about Kennedy's testimony is he does suggest at one point that the asserted patents in a new licensing agreement are the most valuable.

[00:24:57] Speaker 01:
I think he recognizes that, in general, one would think that well-informed parties would identify those that they thought are most important.

[00:25:04] Speaker 01:
But it's not always going to be that case.

[00:25:06] Speaker 01:
You might identify the ones that you think are referred to have the most clear infringement rate.

[00:25:09] Speaker 01:
You might choose exemplary patents.

[00:25:11] Speaker 01:
So it's not always the case you're going to do it.

[00:25:13] Speaker 01:
And he just uses that as sort of a rough cut to describe it.

[00:25:17] Speaker 01:
But what he's talking about in the rest of it is, which are the most important patents?

[00:25:21] Speaker 01:
What really adds value to this portfolio?

[00:25:23] Speaker 03:
So are you saying he didn't test them?

[00:25:26] Speaker 03:
I'm sorry.

[00:25:28] Speaker 03:
Is it what he thinks in retrospect and in value or is it what the parties believed and in value?

[00:25:34] Speaker 03:
Isn't it the latter?

[00:25:36] Speaker 01:
I think it is when you're looking at what parties in an arm's length negotiation will arrive at.

[00:25:42] Speaker 01:
You're going to presume the parties in here are Apple and Weiland.

[00:25:45] Speaker 01:
are going to arrive at what is actually the truth in the universe.

[00:25:48] Speaker 01:
You're not going to assume that they're going to make a mistake and have a false recognition of what's valuable.

[00:25:53] Speaker 01:
And what's valuable here is the ability to prioritize those voice signals so they don't get squashed by background data.

[00:26:00] Speaker 01:
And he also goes through and explains why the other patents in the portfolio were of lesser value.

[00:26:05] Speaker 01:
He's very specific.

[00:26:06] Speaker 01:
He says, they're close to expiring.

[00:26:08] Speaker 01:
They've been exhausted because they have Bluetooth.

[00:26:09] Speaker 01:
It's already been licensed to chip makers.

[00:26:12] Speaker 01:
And Apple could cross-examine him on that and say, no, no, no.

[00:26:14] Speaker 01:
Here's one that's really valuable.

[00:26:16] Speaker 01:
You should have counted this as more than 25%.

[00:26:18] Speaker 01:
This one's worth 70%.

[00:26:21] Speaker 01:
But the only ones that come up are Bluetooth, which is expired or exhausted by license to chip makers.

[00:26:25] Speaker 01:
And that's at 15331.

[00:26:27] Speaker 01:
Wi-Fi, expired at 15331, line 19.

[00:26:30] Speaker 01:
3G at PSA.

[00:26:33] Speaker 01:
close to expiring 15331.

[00:26:36] Speaker 01:
Many wear implementation patents, and that's actually very important.

[00:26:39] Speaker 01:
Implementation patents aren't things you need.

[00:26:41] Speaker 01:
They might be nice to have, but you don't need them.

[00:26:43] Speaker 01:
Here to have voice over LTE, to prevent yourself from having that Skype scenario where you just get your signal absolutely squashed, the voice can't be heard at all.

[00:26:52] Speaker 01:
You're gonna need this technology.

[00:26:54] Speaker 01:
It's absolutely important.

[00:26:55] Speaker 01:
Otherwise, as our expert explained, you go back from 4G LTE

[00:26:59] Speaker 01:
back to 3G.

[00:27:00] Speaker 01:
You go to something I've been over the top.

[00:27:01] Speaker 03:
That all may be true, and Kennedy may be correct that having these patents is necessary, but that doesn't seem to me to relate to the licenses themselves, given that at the time they were negotiating, it appears that

[00:27:18] Speaker 03:
nobody recognized what Kennedy now is testifying for.

[00:27:22] Speaker 01:
Well, certainly at least one did, right?

[00:27:23] Speaker 01:
We know it came up in virtue, and we know it was the 145, not the 757.

[00:27:26] Speaker 03:
Amongst five others, I guess.

[00:27:29] Speaker 01:
Amongst five others, that's right.

[00:27:30] Speaker 03:
But when you're trying to figure out what... So how do we attribute all the value to the 145?

[00:27:34] Speaker 01:
And the question is not what those people thought at that time.

[00:27:40] Speaker 01:
It's like we have a license that presumably covers the value of the portfolio.

[00:27:43] Speaker 01:
And the question is, okay, when Apple and we are sitting down for negotiation and we're looking at what is going to be the value for these two licenses out of the portfolio, what are we going to ride at?

[00:27:53] Speaker 01:
And that should depend on what's real, what genuinely matters to Apple as a very sophisticated partnership.

[00:27:58] Speaker 03:
I mean, objectively viewed as opposed to through the lens of the parties that were streaming at the time?

[00:28:04] Speaker 01:
I think it's from the lens of the parties.

[00:28:06] Speaker 01:
But I also think that you presume the parties ordinarily understand what economic reality is like and how important these things are.

[00:28:11] Speaker 01:
And these are highly sophisticated parties.

[00:28:14] Speaker 01:
And the record shows that it was not just crown jewels, but absolutely critical to be in the 4G LTE world to have voice over LTE.

[00:28:22] Speaker 01:
Otherwise, it just isn't going to work.

[00:28:24] Speaker 01:
It also shows that the other patents were of lesser value.

[00:28:28] Speaker 01:
And so in taking all these things into account, and there's the wheat versus shaft idea and other things like that, Kennedy said, based on my experience, based on my discussions with Mr. Skippen, based on these other factors, I think these were worth roughly a discount of 25% to take away all the other patents, but these were the most important.

[00:28:44] Speaker 01:
And the jury could hear all the cross-examination it wanted on that, and it could make a determination.

[00:28:49] Speaker 01:
It doesn't render any of this evidence inadmissible because it's so closely tied.

[00:28:52] Speaker 03:
And your position, from what you're saying, I take it your position is, even if there had been no reference to a certain patent, and there had just been a statement, here's 1,000 patents, that Kennedy's testimony would have been admissible, and the valuation would have been exactly the same.

[00:29:08] Speaker 01:
I don't know whether he came out exactly the same, because whether it's mentioned is something that he took into account.

[00:29:13] Speaker 01:
But it certainly would be admissible, because it is the exact same.

[00:29:16] Speaker 03:
I'm not sure I saw any place where he

[00:29:18] Speaker 03:
took into account the fact that the 757 and the 145 were not mentioned as assertive patents in the... Right, which suggests that perhaps it would be the same or perhaps not.

[00:29:28] Speaker 01:
It is something that he actually did consider because he brought it up for Dara.

[00:29:32] Speaker 01:
He brought up that it was in 2018 for Dara.

[00:29:34] Speaker 01:
He brought it up for Vertu.

[00:29:35] Speaker 01:
He didn't mention it for UNECCO because it wasn't mentioned.

[00:29:38] Speaker 04:
No, no, it's worse than that.

[00:29:40] Speaker 04:
He mentioned it for UNECCO and he treats them as though they're in the assertive patent category.

[00:29:45] Speaker 04:
Let's look at 15237.

[00:29:48] Speaker 04:
Well, Virtu, we already looked at, it's in the patent license agreement.

[00:29:50] Speaker 04:
They've got that one specifically lined out.

[00:29:53] Speaker 04:
And UNECTO, who we heard about, is no longer in business, but at the same time, they certainly plan on being in business, and they specifically listed both of the patents.

[00:30:00] Speaker 04:
I think one by the identifier number, because it hadn't issued yet, and the other by the specific patent number.

[00:30:06] Speaker 04:
Those are both listed in the UNECTO license.

[00:30:08] Speaker 04:
The UNECTO license specifically lists both patents in this case?

[00:30:11] Speaker 04:
Yes.

[00:30:12] Speaker 01:
Yes, they're specifically listed.

[00:30:13] Speaker 04:
In the junk section,

[00:30:15] Speaker 01:
No, but they're not in the adjunct section.

[00:30:17] Speaker 04:
They may be not... Mr. Skippen testified, Mr. Kennedy adopted it, that somewhere between zero, that all the other patents are worth somewhere between zero and 35%.

[00:30:27] Speaker 04:
These patents were listed in the section that according to your testimony of your people was worth between zero and 35% of the value of the portfolio.

[00:30:38] Speaker 01:
I don't understand that they were, there was a separate section that said, here's the throw-in section, here's the separate, they're listed.

[00:30:45] Speaker 04:
Mr. Skippen explained it.

[00:30:46] Speaker 04:
There's two patents, the asserted patents drive the value in the license, and if we throw in the rest of the portfolio, and the rest of the portfolio, it would be valued somewhere between 0 and 35%.

[00:30:57] Speaker 04:
In the UNECDO license, these are unequivocally in the rest of the portfolio section.

[00:31:02] Speaker 01:
And that's one of the reasons why this caricature of saying, oh, everything was just, if it's mentioned, it's 70%.

[00:31:08] Speaker 01:
And if it's not, it's 30%, isn't an accurate characterization.

[00:31:11] Speaker 01:
What was going on here is you look and say, what are the most important patents that drive the value here?

[00:31:16] Speaker 01:
And that was his analysis.

[00:31:17] Speaker 01:
It's closely tied to that.

[00:31:18] Speaker 04:
But how could the UNECTO license demonstrate that these are the most important patents that drive the value?

[00:31:23] Speaker 01:
I don't think the UNECTO patents necessarily drive that home.

[00:31:27] Speaker 01:
I think what, pardon?

[00:31:28] Speaker 01:
Yes, I don't think the UNECDO license itself would drive that home.

[00:31:33] Speaker 04:
Mr. Kennedy said it did.

[00:31:35] Speaker 01:
Mr. Kennedy said that it was listed, which makes it somewhat important, but it's not one that was discussed.

[00:31:39] Speaker 01:
But I think the most important...

[00:31:42] Speaker 01:
But it was, I think, the most important thing in this context is what drives the value of that portfolio.

[00:31:48] Speaker 01:
And what Mr. Kennedy did is exactly what you'd expect an expert to do.

[00:31:51] Speaker 01:
He would say, these are the most important.

[00:31:53] Speaker 01:
This is why it's absolutely critical to the technology.

[00:31:56] Speaker 01:
These are less important because they're expiring, et cetera.

[00:31:58] Speaker 01:
And Apple can cross-examine that on whatever basis.

[00:32:00] Speaker 01:
This is the type of thing that juries work out.

[00:32:02] Speaker 01:
The judge did not abuse his discretion in admitting this testimony.

[00:32:06] Speaker 01:
If I could turn very, very briefly to the cross appeal, because otherwise I don't get rebuttal.

[00:32:10] Speaker 05:
Yeah, before you get there, I have

[00:32:12] Speaker 05:
about the cross-appeal which is it's marked confidential but then some of the language I'm sorry with respect to one of the issues in the cross-appeal which is the term license

[00:32:22] Speaker 00:
Yes.

[00:32:23] Speaker 05:
It's marked confidential, but there's some discussion that's not confidential in the briefing.

[00:32:29] Speaker 05:
So for purposes of helping us out in terms of what we can say about that here and what we can do about it in writing, is section 3.2 confidential or not?

[00:32:43] Speaker 01:
Section 3.2 of

[00:32:46] Speaker 03:
The term license.

[00:32:48] Speaker 01:
The term license, yes.

[00:32:49] Speaker 05:
The Intel license.

[00:32:50] Speaker 01:
I don't know.

[00:32:51] Speaker 01:
I mean, I have to, you know what?

[00:32:52] Speaker 01:
That's something that we definitely should agree upon between us.

[00:32:54] Speaker 05:
Because I think one of the main sentences in that, I think the parties discuss in the briefs in a non-confidential manner.

[00:33:01] Speaker 01:
Yeah, if it appears in the district court's opinion.

[00:33:02] Speaker 01:
I want to be the one to... I think that's an, if I remember correctly, that's a language that appears in the district court's opinion, which is public.

[00:33:08] Speaker 01:
And so I think that's fine if it appears in the district court's opinion.

[00:33:11] Speaker 01:
I think that's why it appears.

[00:33:12] Speaker 04:
For the cross appeal, will you go to that issue?

[00:33:14] Speaker 04:
Will you please go to section 3.2 and whether it creates a perpetual license such that Intel chips manufactured or chips manufactured and used by Intel after the term of the license should have been included in the damage award?

[00:33:29] Speaker 01:
So, and the answer is it does not include it because it's actually very specifically limited.

[00:33:33] Speaker 01:
There's a for clarity clause there.

[00:33:35] Speaker 01:
And the foreclarity clause says that it extends only to activities, sales, manufacturing, that we're actually engaged in during the term license period.

[00:33:45] Speaker 01:
That doesn't cover those same activities when engaged in after the term license period.

[00:33:49] Speaker 01:
Remember, this is a for clarity clause.

[00:33:51] Speaker 01:
It's not supposed to dramatically expand the scope of the license.

[00:33:54] Speaker 01:
It's supposed to clarify that which is already apparent.

[00:33:56] Speaker 01:
And making that clause mean that if you make a particular chip, you can continue to make and sell it and use it even after the expiration of the license.

[00:34:04] Speaker 01:
That would make it a perpetual license.

[00:34:06] Speaker 01:
That would turn a for clarity clause into a very dramatic extension.

[00:34:08] Speaker 03:
Are you saying the same thing with respect to use?

[00:34:10] Speaker 03:
Are you making the same argument with respect to use?

[00:34:14] Speaker 03:
In other words, if I buy something which is licensed at the time and I'm using it, I'm a customer, and the license comes to an end, I have to stop using it?

[00:34:28] Speaker 03:
Never mind making it and sell it.

[00:34:30] Speaker 01:
Yeah, so I think that the answer is on this license, on this it would have that effect.

[00:34:37] Speaker 01:
Which way?

[00:34:38] Speaker 01:
Your right to continue using it would end.

[00:34:41] Speaker 01:
But it would not extend to people downstream, right?

[00:34:43] Speaker 01:
Because you understand those are going to be exhausted under a Supreme Court precedent.

[00:34:47] Speaker 01:
Which is actually another reason why you would have this type of reclarity clause, because at the time, we were under Malinkrot.

[00:34:53] Speaker 01:
And we're just making absolutely clear that both the rights that Intel would have and the rights of people downstream, this is what controls them.

[00:35:02] Speaker 01:
And then you have a separate exhaustion issue that covers Malinkrot issues.

[00:35:06] Speaker 01:
If I could turn very briefly to the other issue, and that is the new trial order rests on just simply a fundamental mistake.

[00:35:12] Speaker 01:
We agree with Apple that it rises or falls with the admissibility of Matt Assetti's testimony on the advantage of Volte and the advantage of Volte under loading in particular.

[00:35:20] Speaker 01:
And Apple just agrees with us that he didn't testify, here's the increased value of Volte.

[00:35:24] Speaker 01:
He testified, here's the value it brings under loading.

[00:35:27] Speaker 01:
And that's the situation where the technology, the patented technology makes a difference.

[00:35:33] Speaker 03:
What do you say about the, I'll just use the short cut, the evidence on, the statements on page 989 of the appendix where Lilang comes back and says, well, here were the initial problems with Mancetti's testimony and we can trim.

[00:35:52] Speaker 01:
Oh, yeah.

[00:35:53] Speaker 03:
point six out of that.

[00:35:55] Speaker 03:
Are you saying that basically you were accommodating to the district court's erroneous ruling?

[00:36:01] Speaker 01:
So when the district court tells you you need to change it and you need to be more conservative, there are lots of ways to make it more conservative.

[00:36:08] Speaker 01:
But the notion that there was somehow, as Apple now says, a point six baseline difference, that's not true because the

[00:36:14] Speaker 01:
That point in the report they're looking at is under heavy traffic network conditions, or at least moderate network traffic conditions.

[00:36:20] Speaker 01:
So our technology is actually working there to make that difference.

[00:36:25] Speaker 01:
So any difference between the two is more than wiped out by Matt Assetti being very conservative.

[00:36:31] Speaker 01:
He was actually comparing Skype's best

[00:36:33] Speaker 01:
to our average.

[00:36:35] Speaker 01:
If you use Skype's average to our average, the difference was not 2.3, but it was a difference of more than 1.2, which wipes out the 0.6 difference that Apple is talking about.

[00:36:44] Speaker 01:
So in the end, he was so conservative that any complaint Apple might have about a baseline difference is wiped out by the conservative nature.

[00:36:52] Speaker 03:
And one further question.

[00:36:54] Speaker 03:
Kennedy testified, I think it was Kennedy, that

[00:36:58] Speaker 03:
the value to a consumer of the phone with VOLTE was $121, if I have the number right, greater than the phone with Skype.

[00:37:09] Speaker 03:
And then he took 1% of that.

[00:37:11] Speaker 03:
Now, his testimony on that was, well, I've been around the block a few times, and I think it's somewhere in the low one single digits.

[00:37:21] Speaker 03:
That has a very

[00:37:24] Speaker 03:
made up feel to it.

[00:37:26] Speaker 03:
How do you defend that choice of 1% as opposed to a choice of 2% or one half of a percent?

[00:37:31] Speaker 01:
Yeah, so the $121, that's from survey evidence that Apple never complains about.

[00:37:35] Speaker 01:
And I don't think Apple complains about the 99%.

[00:37:37] Speaker 01:
The argument is that because he used 99%, that showed that he failed to allocate between the value of this technology and other technology.

[00:37:46] Speaker 01:
But that was actually honed in under loading.

[00:37:47] Speaker 01:
So it was all about this technology.

[00:37:49] Speaker 01:
The 99% look, he said Apple has immense bargaining power.

[00:37:54] Speaker 01:
I think they would get the lion's share of this, and it's 99%, and that works for our judgment.

[00:37:59] Speaker 03:
I don't think that Apple is going to complain that my religion... My recollection is that from the fable, the lion took it all.

[00:38:04] Speaker 01:
Yeah, well, the lion here, it left us 1% for the mouse.

[00:38:08] Speaker 01:
And I think that that was entirely permissible in terms of what he did.

[00:38:11] Speaker 01:
And I don't think Apple is claiming prejudice that they got 99%.

[00:38:14] Speaker 01:
They just are arguing that shows that he didn't properly do an allocation for the value of the technology versus the value of other things that are in the phone.

[00:38:21] Speaker 03:
It does have a sort of made-up feel to it, though.

[00:38:23] Speaker 01:
You know, this is the sort of thing that when you're trying to figure out, there's lots of things you're going to take into account because this is the implementer who takes a lot of risk in terms of developing the product.

[00:38:32] Speaker 01:
If it doesn't work, they have the risk.

[00:38:33] Speaker 01:
They have the marketing risk.

[00:38:34] Speaker 01:
They have lots of things you do.

[00:38:35] Speaker 01:
And I think when you walk through it, you come up with something like they're going to get the lion's share, and especially if they're Apple.

[00:38:40] Speaker 01:
But other than doing it through qualitative functions, it's very hard to do anything.

[00:38:45] Speaker 03:
But there wasn't much testimony from Kennedy on that.

[00:38:48] Speaker 03:
He just sort of popped up with it.

[00:38:50] Speaker 01:
No, there is the limited testimony.

[00:38:51] Speaker 01:
I will concede that.

[00:38:52] Speaker 01:
But I don't think Apple says, 99% was wrong.

[00:38:55] Speaker 01:
I was prejudiced.

[00:38:55] Speaker 01:
It says, yeah, 99%, that shows that you didn't do the allocation right the first time.

[00:38:59] Speaker 05:
Can I just ask one very quick question back to the second cross-appeal issue that you discussed first on the term license?

[00:39:06] Speaker 05:
Is there anything in the record to establish what the quantity is that would be affected?

[00:39:10] Speaker 05:
In other words, how would this affect the damages amount?

[00:39:13] Speaker 05:
Is it by 20 percent, by 5 percent?

[00:39:15] Speaker 01:
You know, and this is, I don't remember the number.

[00:39:18] Speaker 01:
I do think it's in the tens of millions of dollars, but I don't know the precise figure.

[00:39:22] Speaker 01:
By rebuttal, I will have it for you, because I think my colleague does know that answer.

[00:39:26] Speaker 01:
But the answer, the bottom line is, even if what both constructions are plausible, it should have gone to a jury.

[00:39:31] Speaker 01:
It should go to the trier fact.

[00:39:32] Speaker 01:
It's not something you could have decided on summary judgment.

[00:39:34] Speaker 00:
Thank you, Your Honor.

[00:39:48] Speaker 02:
So your honor, two footnotes and then a couple, so four points.

[00:39:52] Speaker 02:
First two are one, we do, we have not agreed for the 99%.

[00:39:59] Speaker 02:
That whole survey of customer preferences is just an issue that hasn't been litigated yet to resolution.

[00:40:06] Speaker 02:
At 15333, there's a quote about,

[00:40:12] Speaker 02:
the value of the Bluetooth license.

[00:40:15] Speaker 02:
So to the extent that that needs support, that's at 15333.

[00:40:19] Speaker 02:
The two other issues are claim construction and its infringement.

[00:40:25] Speaker 02:
And I understand we could just spend a few seconds on claim construction.

[00:40:29] Speaker 02:
The question of mobility.

[00:40:31] Speaker 02:
and portability.

[00:40:33] Speaker 02:
We do distinguish between those two.

[00:40:34] Speaker 02:
The portable is the phone that you walk around your house with with the base station somewhere else.

[00:40:39] Speaker 02:
Cell phone, mobile, that's what we all have in our pockets today.

[00:40:44] Speaker 02:
And one way to read this pen is if you look at subscriber radio station in column 1138,

[00:40:50] Speaker 02:
and treat that as a cell phone, and it's clear that the rest of the patent is just talking about portable.

[00:40:56] Speaker 02:
So, Your Honor, that's column one, line 38.

[00:41:01] Speaker 03:
A question that falls probably into the completely hypothetical category, but in trying to grapple with this portability mobility issue,

[00:41:09] Speaker 03:
Suppose that in the primitive years that all this technology was coming into play, you had a phone which would have an optional clip-on device that you clip onto your phone which would serve as the CPE slash subscriber unit.

[00:41:27] Speaker 03:
Would you view that as being a separate device as you view this?

[00:41:33] Speaker 02:
because it's not inside the phone, but it's not really outside the phone.

[00:41:37] Speaker 02:
That's an interesting hypothetical.

[00:41:38] Speaker 03:
You could leave it on your kitchen table, but you could also clip it onto the phone.

[00:41:45] Speaker 02:
So my hypothetical answer is that a lot requires, here it turns on the CP being fixed, so it can have a consistent relationship with the base station.

[00:41:54] Speaker 02:
the broader range of the device you're describing that's outside the phone, I think the harder it would be to work.

[00:42:01] Speaker 03:
But if you view it as portable, then it doesn't have a fixed relationship to the base station except for the period.

[00:42:07] Speaker 03:
Right.

[00:42:08] Speaker 02:
It's more limited.

[00:42:09] Speaker 02:
The portable would be more limited.

[00:42:11] Speaker 02:
So I do think it's worth spending, Your Honor, with your permission, just a little bit on the Sprint phone.

[00:42:16] Speaker 02:
We don't infringe a sprint phone.

[00:42:18] Speaker 02:
If you look at the diagram on page 44, which is the one of our brief, it's all over the papers, the diagram with the two tubes, one of those tubes is vaulty, and the sprint phones don't work on vaulty.

[00:42:30] Speaker 02:
So how we could it be infringing something that these devices cannot do?

[00:42:34] Speaker 02:
And that's real money, so I do want to spend some time on that.

[00:42:38] Speaker 02:
In terms of, as I stood up, if you look at footnote 2, appendix 32, that's just where we have not conceded that the accuracy is in any of these own customer surveys that are in this case.

[00:42:53] Speaker 02:
So that's what I formally wanted to talk about, Your Honors.

[00:42:55] Speaker 02:
I have 52 seconds left.

[00:42:57] Speaker 02:
Intel was discussed, but it's been a long day.

[00:43:02] Speaker 02:
And if you have no questions, I'm

[00:43:05] Speaker 04:
Okay, thank you.

[00:43:06] Speaker 04:
Mr. Davies.

[00:43:07] Speaker 04:
Mr. Lampkin other than him saying Intel was discussed.

[00:43:09] Speaker 04:
He didn't really rush across the field, right?

[00:43:12] Speaker 04:
All right, okay, then this case is taken under submission