[00:00:07] Speaker 03: Thank you your honor. [00:00:12] Speaker 01: May it please the court. [00:00:13] Speaker 01: My name is Bill Lee and together with my partner Warren Fletcher I represent Intel. [00:00:18] Speaker 01: There were numerous errors at trial that resulted in a 2.2 billion dollar verdict that is neither supported by the law or the FDA. [00:00:26] Speaker 01: In my time today, I will try to address both infringement and damages issues. [00:00:31] Speaker 01: But I would like to take them in a slightly different order than I normally would. [00:00:36] Speaker 01: I plan to start with a non-comparable argument issue, which makes this case truly unusual. [00:00:43] Speaker 03: Before we get to that, Mr. Leach, your client has been found liable for almost [00:00:52] Speaker 03: 2 thirds of a billion dollars in damages for actions that are not literally within the scope of the plans. [00:01:00] Speaker 03: And no doubt you're familiar with Texas Instruments versus Cyprus. [00:01:07] Speaker 03: And we said that one must provide particularized testimony of linking argument as to the insubstantiality of the differences. [00:01:18] Speaker 03: We stated that such evidence must be presented on a limitation [00:01:22] Speaker 03: by limitation basis. [00:01:25] Speaker 03: And the concern of this court was that equivalents should not be prom 2. [00:01:32] Speaker 03: It should be the exception, not the rule. [00:01:35] Speaker 03: I looked through the jury instructions, and I didn't see any reference to particularized testimony and linking argument. [00:01:45] Speaker 03: Now, was that you? [00:01:47] Speaker 03: Did you object to that? [00:01:50] Speaker 03: Or did you waive it? [00:01:51] Speaker 03: Or was that accomplished by the rest of your argument? [00:01:55] Speaker 01: Your Honor, it was not waived. [00:01:57] Speaker 01: And the question of the sufficiency of the doctrine of equivalence testimony on the 759 patent by Dr. Conte was an issue at JMOL after their direct case. [00:02:08] Speaker 01: It was an issue at JMOL after it closed the evidence. [00:02:11] Speaker 01: And it was an issue on the post trial motions. [00:02:14] Speaker 02: And this calls- In those post trial motions, including the JMOL, did you make the equation [00:02:20] Speaker 02: The particularized linking argument? [00:02:23] Speaker 01: Yes, it's there. [00:02:24] Speaker 01: And Your Honor, we made three arguments, all of which go to the question of whether the doctrine of equivalence finding for the 759 patent can be sustained, and it cannot. [00:02:36] Speaker 01: And the three reasons are the following. [00:02:37] Speaker 01: One is, there's five pages of testimony from Dr. Conte. [00:02:41] Speaker 01: And all he says is, they're different. [00:02:43] Speaker 02: And there's only one only one limitation of issue, right? [00:02:47] Speaker 02: Yes, definitely this limitation specific and he said it doesn't matter whether everything is in the active not the active being the What the first device or something but the master first master you can combine that with a certain code that's in the controller and send it and be received by the [00:03:07] Speaker 02: code right that's yeah that that's the problem that he had because and the three problems one is he never says why that is in substantially different he never says why it accomplishes I thought he said any engineer would understand that that's insignificant and I forget I don't know if he said but there's also a little passage in the patent that says everything that can be done by hardware can be done by software in our in our patent or any combination your honor [00:03:35] Speaker 01: All he said was, it's a design choice. [00:03:37] Speaker 01: I think that's what you're referring to. [00:03:38] Speaker 01: It's a design choice. [00:03:40] Speaker 01: He never said they're in substantial difference, and he couldn't because they were very, very different. [00:03:44] Speaker 01: The reason that in the Intel products, the PCU does the work is the Intel products are multi-core products, many different cores. [00:03:54] Speaker 01: And the PCU, and having all the software there, allows the PCU to make the determination on a system-wide basis. [00:04:02] Speaker 01: It is completely different. [00:04:03] Speaker 01: from what was described in this old pet. [00:04:06] Speaker 01: She didn't touch any of the bases that Judge Lorie identified. [00:04:11] Speaker 02: And, Your Honor, the best indication that is- Just to be clear, did you have evidence of your own that says, here's why these things are really, really quite substantially different? [00:04:21] Speaker 01: Absolutely. [00:04:22] Speaker 01: And what I just described to you is in the record, which is the PCU has all of this robust software because there are multi-cores in the Intel products. [00:04:33] Speaker 01: And because there are multiple cores, you want to look at the question of clock frequency across the system, not for a specific core. [00:04:42] Speaker 01: And the reason it's all in the clock controller or the PCU is precisely because of that. [00:04:48] Speaker 01: So not only did he hand weight at the question of whether they were substantively different, there was undisputed evidence of just why they were different. [00:04:56] Speaker 01: And Your Honor, the two other reasons that I think that is correct are the following. [00:05:02] Speaker 01: To accept his Dr. Quilbin's testimony requires you to conclude, requires the jury to conclude, that the PCU both is issuing the request and receiving the request. [00:05:19] Speaker 01: That is inconsistent with the claim which has a master device, the master device, which is separate from the clock controller. [00:05:26] Speaker 01: Literally, it's nonsensical. [00:05:28] Speaker 01: His Doctrine of Quilfin's Testament takes what was found, not literally to infringe, and takes a clock controller and says, it's doing both. [00:05:36] Speaker 01: It's issuing the request, and it's receiving the request. [00:05:40] Speaker 01: And if you needed further confirmation, that that's just simply... But not alone, right? [00:05:46] Speaker 01: Not a lot. [00:05:48] Speaker 01: Not a lot. [00:05:49] Speaker 01: And if you needed further confirmation that you can't make that equivalence argument, if I draw your attention to appendix 8372 to 8373, this is where, after four rejections, the claims have been all canceled. [00:06:06] Speaker 01: New claims come in with A master device, B master device. [00:06:10] Speaker 01: And if you look at what they say about ensaring, [00:06:14] Speaker 01: The description of Ansari is precisely, precisely the same as the equivalent that they're describing now. [00:06:24] Speaker 01: It is two components, one issuing a request to the bus, a second, the arbiter in Ansari saying, here's the correct clock frequency. [00:06:34] Speaker 01: And what they say is, no, no, that doesn't work. [00:06:36] Speaker 01: That's not what we're claiming. [00:06:38] Speaker 01: And we'll get out and make it clear by saying about master choice. [00:06:42] Speaker 04: Which page is this on? [00:06:43] Speaker 04: What page? [00:06:43] Speaker 01: It's 8372, Your Honor, to 8373. [00:06:48] Speaker 01: So I think the answer to Judge Rory's opening question is they don't have to particularize testimony. [00:06:56] Speaker 01: They don't touch the correct basis. [00:06:58] Speaker 01: It really is just conclusions. [00:07:01] Speaker 01: But in this case, it's a nonsensical conclusion because it has a component both issuing the request and receiving it when the claim requires the alternative [00:07:10] Speaker 01: And then, when you get to the file history, they have specifically distinguished a two-component device by saying that a two-component device where someone, one, issues a request to the bus, and the second issues a request in the frequency, that's not covered by the claim. [00:07:29] Speaker 01: They're actually using equivalence to cover precisely what is covered by the claim. [00:07:34] Speaker 01: Now, let me do this as we're on the infringement issues. [00:07:37] Speaker 01: Very quickly go back to the 373 patent because I think this one's even easier than the 759 patent. [00:07:44] Speaker 01: The accused memory is the C6 SRAM. [00:07:49] Speaker 01: The claimed minimum operating voltage is ring retention voltage. [00:07:56] Speaker 01: There is no dispute on this record anywhere that ring retention voltage is not used in any way. [00:08:03] Speaker 01: In any way [00:08:05] Speaker 01: in switching the voltage to the C6S frame. [00:08:09] Speaker 01: It's not in the source code. [00:08:11] Speaker 01: It's not in their expert's testimony. [00:08:12] Speaker 04: In fact, we've cited... There seems to be what is really a claim construction issue here as to whether that needs to be the trigger or not, right? [00:08:22] Speaker 01: I don't think you're... No, I don't... I wouldn't... I don't think that's... [00:08:26] Speaker 01: I don't think we would agree. [00:08:27] Speaker 01: I think if you look at the claim in its entirety, it says you determine a minimum operating voltage. [00:08:34] Speaker 01: It then says you store it. [00:08:36] Speaker 01: And then it tells you that there are just two states. [00:08:40] Speaker 01: When you're at or above the minimum operating voltage, you supply one voltage. [00:08:44] Speaker 01: If you're below, you supply another. [00:08:47] Speaker 01: So one thing that's clear from the claim on its claim meaning is the minimum operating voltage has to be in two. [00:08:51] Speaker 04: But your argument isn't the minimum retention voltage. [00:08:53] Speaker 04: Isn't the trigger, right? [00:08:55] Speaker 01: It could be the trigger. [00:08:56] Speaker 01: As the abstract says, you could use it as the words of the abstract. [00:09:01] Speaker 01: If you look at figure one and the portion of it describing component 12 and the clock controller, it is telling you that the minimum operating voltage is involved in some way in determining which voltage is being supplied. [00:09:19] Speaker 01: There is no evidence [00:09:21] Speaker 01: on this record. [00:09:22] Speaker 01: Absolutely no evidence on this record that the ring retention voltage is used in any way. [00:09:27] Speaker 04: In fact, Dr. Conti, when we cross the band then... But there's an argument that it doesn't need to be. [00:09:32] Speaker 04: The claim doesn't require that, right? [00:09:34] Speaker 01: Actually, I think the claim, meaning the claim does require being involved in some way. [00:09:37] Speaker 01: No, no, no, but that's their argument, right? [00:09:39] Speaker 01: Because each of the... That's their argument. [00:09:41] Speaker 01: That's their argument. [00:09:43] Speaker 01: And I think it's just... [00:09:45] Speaker 04: But you never asked for a claim construction on this, right? [00:09:48] Speaker 01: Yes. [00:09:49] Speaker 01: That's their argument, Your Honor. [00:09:50] Speaker 01: And it's inconsistent with the structure of the claim. [00:09:53] Speaker 01: It's inconsistent with the abstract. [00:09:55] Speaker 04: Under the Hewlett-Packard line of cases, if you didn't ask for a construction, the jury has to consider the claim on its face and make its determination. [00:10:07] Speaker 04: The question is whether its determination is reasonable. [00:10:11] Speaker 01: The question, Your Honor, actually is whether they [00:10:14] Speaker 01: There's substantial evidence to support a reasonable conclusion, and we would suggest there is not. [00:10:20] Speaker 01: The idea that ring retention voltage doesn't need to be involved in any way at all when you can infringe a claim is inconsistent with the claim on its face. [00:10:30] Speaker 01: You don't have to go any further than that, and it's surely inconsistent when you look at the claim in light of the abstract and specific case. [00:10:37] Speaker 03: You wanted to tell us why the licenses weren't comparable. [00:10:41] Speaker 01: Your Honor, I don't need to tell you why the licenses weren't comparable. [00:10:44] Speaker 01: I'll try to do this in a minute to reserve the forum. [00:10:47] Speaker 02: Right. [00:10:47] Speaker 02: Let me just say, this is the way that I understand that issue. [00:10:50] Speaker 02: It's perfectly clear that in the absence of your little set piece about the sale of sports teams, at the end of Dr. Sullivan's testimony, this would not be remotely justified. [00:11:02] Speaker 02: And when I think about technology licenses and sports teams, I know which one is less comparable. [00:11:08] Speaker 01: But your honor, the answer is even with their argument on the sports teams. [00:11:16] Speaker 02: You did this. [00:11:17] Speaker 02: You said something about something as incomparable as it's possible to do to put you must have thought it was relevant to put an issue something about size. [00:11:28] Speaker 01: Your honor, actually what happened precisely is during Dr. Sullivan's direct examination, he touted his work for major league franchises, for NFL franchises, NBA franchises, and the work he did on valuations for them. [00:11:43] Speaker 01: He had previously described that work resulting in a $2 billion [00:11:48] Speaker 01: valuation of the Los Angeles peppers as astronomical. [00:11:52] Speaker 01: All we did is cross-examine on that basis. [00:11:55] Speaker 01: But the argument that Your Honor has just summarized, which is inconsistent with what occurred at trial, the district court did buy that argument, Your Honor. [00:12:06] Speaker 02: Well, I don't think that's worth debating. [00:12:14] Speaker 02: argument about Dr. Aram having chosen the wrong set of numbers to use by looking at core C7 instead of package C7. [00:12:28] Speaker 02: It seems almost, I think, undisputed that he chose the wrong one. [00:12:35] Speaker 02: You have some indication that that could well have made a difference. [00:12:41] Speaker 02: So here's my question. [00:12:44] Speaker 02: Assuming all that's right, does it affect only the 373 damages or does it affect also the 759 damages? [00:12:55] Speaker 01: that Dr. Anabarm made with a power model that affects the 373 damages. [00:13:00] Speaker 01: And the court requested an exhibit number. [00:13:06] Speaker 01: The best demonstration of Dr. Anabarm's error is that if you go to appendix 3132, you will see the work that he did with the different residency information. [00:13:18] Speaker 01: And you'll see residency information for both [00:13:21] Speaker 02: I'm not sure. [00:13:22] Speaker 02: Are you trying to convince me that it was an error? [00:13:23] Speaker 02: I'm pretty mixed. [00:13:24] Speaker 01: OK. [00:13:24] Speaker 01: So you don't have to be. [00:13:26] Speaker 01: And the record demonstrates that it could be an error that's off by a factor of 2. [00:13:31] Speaker 04: But in the 579, as I understand it, your argument is that he used something more than the infringing feature to measure the power use. [00:13:41] Speaker 01: That's exactly what he did. [00:13:42] Speaker 01: And actually, you don't have to take my word for it, because their other expert, Dr. Conte, told him what to do. [00:13:50] Speaker 01: told him to measure just a portion of the entire ring domain, the ring bus. [00:13:57] Speaker 01: He didn't do what he was asked to do. [00:14:00] Speaker 01: He measured the number for the entire domain, which indiscriminately includes [00:14:06] Speaker 01: non-declining features. [00:14:10] Speaker 01: Indisputably includes non-accused features. [00:14:15] Speaker 01: And indisputably was not what he was asked to do by Dr. Conkey. [00:14:19] Speaker 01: And the end result of that is erroneous information again. [00:14:23] Speaker 01: And Dr. Sullivan's model, which we've described the other problems that it has, is predicated upon both of those numbers. [00:14:33] Speaker 01: There is a reason, Your Honor, that [00:14:35] Speaker 01: This methodology that Dr. Sullivan has offered, in the words of Dale Bearer, has never been published, has never been presented. [00:14:44] Speaker 02: Can you pinpoint again for me what was the specific [00:14:53] Speaker 02: discussing with Judge Dyke that pairs on the 759. [00:14:56] Speaker 01: So for the 759 pattern. [00:14:59] Speaker 02: Not the generic pair, it's about methodology. [00:15:01] Speaker 01: No, no, no. [00:15:03] Speaker 01: And let me give you the specific side, if I could. [00:15:06] Speaker 04: So for the... He used the entire ring domain power. [00:15:12] Speaker 04: He used the entire ring domain rather than ring bus power. [00:15:16] Speaker 02: If you look at it, I think I remember that, in fact, that's what he did. [00:15:23] Speaker 02: What I'm not remembering so well is how undisputed or disputed it is that that made a difference. [00:15:29] Speaker 01: Well, this is now their words, not ours. [00:15:33] Speaker 01: At appendix 3215, appendix 3215, Dr. Conti said that measuring the power drawn by the ring domain [00:15:44] Speaker 01: The ring bus only was necessary and I'm not quoting your honor to isolate the benefits of the bench and claim seven five nine and I quote. [00:15:54] Speaker 01: exclude the contribution of non-accused technologies, features, and functionality. [00:16:00] Speaker 01: And instead of doing the ring bus, hit the entire ring domain. [00:16:05] Speaker 04: OK, but it didn't even quantify. [00:16:06] Speaker 04: Nobody's quantified what the difference is. [00:16:09] Speaker 01: No. [00:16:09] Speaker 01: But without a Delphite, taking the entire ring domain, you're going to have, it would necessarily increase the damages by some amount. [00:16:19] Speaker 01: No one's quantified that precise amount. [00:16:21] Speaker 01: Both of his errors. [00:16:23] Speaker 01: both of his errors make the methodology unreliable. [00:16:27] Speaker 01: Both of his errors necessarily would have increased the amount of damages. [00:17:00] Speaker 00: Good morning, and please the court. [00:17:02] Speaker 00: At the risk of starting with the capillary, I'd like to start where Mr. Lee left off, which was the 579 damage estimate and the use of the ring bus, allegedly, instead of using, I guess it was the ring domain as opposed to the ring bus. [00:17:16] Speaker 00: I think that's not an error in the slightest. [00:17:18] Speaker 00: And the answer of believing why will be at two places in the appendix. [00:17:22] Speaker 00: The first is at 2722. [00:17:23] Speaker 00: And this is Dr. Conti, who is our expert, explaining what he had asked Dr. Navaram to do. [00:17:29] Speaker 00: He says, you want the fraction of power used by the ring domain. [00:17:33] Speaker 00: That means the ring bus and some of the little attached things to it. [00:17:37] Speaker 00: And then you ultimately would give the measure of the benefit of the 7-9 patent. [00:17:41] Speaker 00: So he's clearly talking about the ring domain. [00:17:43] Speaker 00: And then I know that Mr. Lee points to the fact that there's other places where he talks about the ring bus. [00:17:49] Speaker 00: But if you look at page 18085 and 18086, [00:17:54] Speaker 00: Dr. Conti makes clear that when he says ring bus, he actually means domain. [00:17:59] Speaker 00: And he says the CLR domain is often called the ring bus. [00:18:03] Speaker 00: So he's actually talking about the domain, not the bus. [00:18:05] Speaker 00: This is not a mistake. [00:18:06] Speaker 00: And it actually makes perfect sense in terms of what they're trying to do. [00:18:10] Speaker 00: Because Intel didn't have a non-infringing alternative, we came up with our own to narrow things down. [00:18:16] Speaker 00: And one of the things we did is look, you could avoid infringement by not ramping up and down the ring bus, which is the whole domain. [00:18:25] Speaker 00: You don't have to change the frequency for that. [00:18:27] Speaker 00: And so if you find the benefit of just doing that, the ring bus, then you're going to narrow damages. [00:18:32] Speaker 04: I'm sorry. [00:18:33] Speaker 04: I'm not understanding what you're saying. [00:18:34] Speaker 04: Are you saying that in your view, the ring bus and the ring domain are the same thing? [00:18:39] Speaker 00: Yes, if you look at 1808.5, Dr. Conti said the CLR domain. [00:18:45] Speaker 00: Oh, that's 1808.5. [00:18:49] Speaker 00: The very first page of 5. [00:18:53] Speaker 00: You look at the bottom, and it says, second line from the bottom, the CLR domain, often called the ring bus. [00:19:00] Speaker 00: So if he's talking about the domain, the ring bus, he's using these things interchangeably. [00:19:04] Speaker 00: And he also goes on to explain why you would distinguish between just the bus and the domain, because he says, it runs on a single voltage power frequency domain. [00:19:14] Speaker 00: And then he goes on, on the next page, and explains that Intel not only doesn't design their processors, [00:19:19] Speaker 00: does design their processes for an entire domain, but it wouldn't be commercially acceptable to try and distinguish between the two. [00:19:27] Speaker 00: So he's actually saying when you're doing the non-infringing alternative, you're gonna look at the entire domain. [00:19:34] Speaker 04: Sending it out, but if I quickly move on to the other issue, which is Dr. Anogh Ram's... So if I understand what you're saying is that he didn't separate the two in making the analysis, but it's not possible to separate the two? [00:19:50] Speaker 00: He doesn't separate the bus from the domain because it doesn't make sense because the frequency and the voltage for those are going to change in parallel on any commercially acceptable processor. [00:20:00] Speaker 00: So the advantage of the patent [00:20:02] Speaker 04: Okay, where is the testimony that it doesn't make any difference in terms of power usage? [00:20:07] Speaker 04: Which of the two you consider? [00:20:10] Speaker 04: Where is there testimony that it doesn't make any difference in terms of the power calculation whether you use the bus or the entire domain? [00:20:18] Speaker 00: No, I don't think that's what I was trying to say, Judge Dyck. [00:20:20] Speaker 00: I was trying to say that you wouldn't vary the bus without the domain, because you do not have a commercially acceptable product. [00:20:29] Speaker 00: And because the non-infringing alternative is to not vary the ring bus. [00:20:37] Speaker 00: It's not to vary only the bus. [00:20:39] Speaker 04: So what you're saying is that because the ring bus is an indispensable part of the ring domain, it's OK to use the ring domain power consumption? [00:20:47] Speaker 00: You use the ring domain because that is the non-affringing alternative. [00:20:50] Speaker 00: You would actually have to loop them together. [00:20:52] Speaker 00: No, no. [00:20:52] Speaker 04: I'm not understanding what you're saying. [00:20:54] Speaker 04: Is what I said correct or not correct? [00:20:56] Speaker 00: I think it is correct in the sense that the non-infringing alternative is not to just ramp down the bus, because that's not going to be a commercial. [00:21:02] Speaker 04: Well, I forget about non-infringing alternative. [00:21:04] Speaker 04: It doesn't have to be a non-infringing alternative. [00:21:07] Speaker 04: If it's part of something which is non-infringing, you ordinarily would think that you have to separate the power consumption from one feature and other features in it. [00:21:17] Speaker 00: I should be clear. [00:21:18] Speaker 00: What we're trying to do, which we're saying, what is the advantage of having the invention versus not having the invention? [00:21:25] Speaker 00: And if you can avoid infringement in a particular way, and the way you could avoid infringement is by not changing the frequency for the ring domain, that would be a non-infringing alternative. [00:21:36] Speaker 00: And so when you're trying to calculate the advantage, it's the infringing alternative versus the non-infringing alternative. [00:21:42] Speaker 00: Having the ring domain voltage, or excuse me, frequency go up and down versus not having it go up and down. [00:21:48] Speaker 03: Mr. Lepton, why wasn't it an abusive discretion [00:21:55] Speaker 03: Intel is licensed under FinChan and DLSI is an affiliate of FinChan. [00:22:04] Speaker 00: Yeah, so I should also mention that the patent covers the cores and the bus and the ring, so ramping up all three. [00:22:12] Speaker 00: So it's not like you're actually having a non-infringing, you're covering actually infringing uses, infringement. [00:22:19] Speaker 00: In terms of the license defense, it seems to me that there's two independent reasons why there was no abuse of discretion there. [00:22:26] Speaker 00: And the first is that Intel never suggested below that it wanted the district court to actually adjudicate that license defense. [00:22:32] Speaker 00: It's repeated request. [00:22:33] Speaker 00: Time and again was to say this court, the court below, can't actually adjudicate it. [00:22:37] Speaker 00: What we want you to do is we want you to add the defense, sever, and stay so that we can adjudicate the defense elsewhere in Delaware, first in the Chancery Court, later in the District Court in Delaware. [00:22:50] Speaker 02: Both those options are now exhausted. [00:22:52] Speaker 00: Yeah, they're now exhausted. [00:22:54] Speaker 00: And the District Court just do. [00:22:55] Speaker 02: Although, conceivably, if the issue went back, there's a certification option after the development of the factuary. [00:23:01] Speaker 00: So I'm sorry. [00:23:03] Speaker 02: Certification to the Delaware Supreme Court after developing that defense. [00:23:06] Speaker 00: Potentially. [00:23:07] Speaker 00: But remember, there's two rationales the district court gave. [00:23:09] Speaker 00: One is that look at time. [00:23:11] Speaker 00: They're claiming that you should put that aside. [00:23:12] Speaker 00: OK. [00:23:12] Speaker 00: And then the other rationale the district court gave, which is independent, is that it was futile to add the defense. [00:23:17] Speaker 00: Right. [00:23:18] Speaker 02: So why is it futile? [00:23:19] Speaker 02: Why is it futile? [00:23:20] Speaker 02: I guess I've read the six or seven cited seemingly relevant chancery, and I guess one Delaware Supreme Court decision that seems [00:23:31] Speaker 02: don't provide a clear answer. [00:23:33] Speaker 00: It seems to me that what provides the clear answer is actually that FinGIN license and the FinGIN and also the nature of the what they filed as their amendment. [00:23:46] Speaker 02: the question of the meaning of the license wasn't really litigated. [00:23:50] Speaker 02: I mean, you may have arguments about why the license doesn't end up covering this, or maybe it's not attractive, or something, but that wasn't litigated. [00:24:03] Speaker 00: If Judge Albright was saying that you have not shown control, which would be one way from getting out of the fact that these aren't binging licenses. [00:24:10] Speaker 02: But just by limiting his notion [00:24:15] Speaker 02: At least question. [00:24:18] Speaker 00: No, I don't think he's limited ownership because he says they're effectively strangers and that the LS in that They weren't strangers when the settlement was done, but no longer. [00:24:27] Speaker 00: Oh, they are strangers They effectively the owners of VLS I have the same advisor fortress, but that's like saying that you have the same lawyers I guess And why isn't that the factual question? [00:24:51] Speaker 00: Well, Your Honor, there's two things. [00:24:52] Speaker 00: First, if you look at the actual pleading, and this is on page, I think, 3,400 or so, their only allegation was that they came under ownership and control. [00:25:02] Speaker 00: And under this court's decision in Celgene, you can't just say ownership and control. [00:25:06] Speaker 00: You've got to have facts. [00:25:07] Speaker 00: And there's simply no facts in that proposed bleeding. [00:25:09] Speaker 00: So it was futile for that reason alone. [00:25:11] Speaker 00: If you just take a look at the agreement. [00:25:23] Speaker 00: There's two things that make it clear that they could not possibly prevail here. [00:25:27] Speaker 00: And one is that they don't have anything approaching evidence of common ownership control. [00:25:32] Speaker 00: There's no common ownership is shown. [00:25:35] Speaker 00: And where is the common control? [00:25:36] Speaker 00: The only suggestion is that the owners of VLSI, these pension funds, are advised by the same company, Fortress, that was involved in finging. [00:25:46] Speaker 00: But that doesn't show it. [00:25:48] Speaker 00: And then there's also the statement that, oh, gee, perhaps there's a fact that VLSI has board members there. [00:25:53] Speaker 00: But the Supreme Court in Best Foods says, even if you have overlapping board members, it's assumed that they change their hats. [00:25:59] Speaker 04: Oh, but you're asking us to dive into the facts. [00:26:02] Speaker 04: you know, futility requires some clarity that there's no possibility of prevailing here. [00:26:09] Speaker 04: And, you know, I understand your calmly arguing, but you're suggesting that we look at the facts here and say, well, you know, they alleged control, but there really isn't any. [00:26:21] Speaker 00: And beyond that, Your Honor, there's also the fact that it has to be a license that could be given without any compensation to a third party. [00:26:29] Speaker 00: Under this agreement, and NXP is a third party, that if they were around at the time of this agreement, they would have to be compensated. [00:26:36] Speaker 00: It is absolutely clearly futile. [00:26:37] Speaker 00: But at the very least, there's no abuse of discretion in saying, yes, I waited for the Chancery Court to rule. [00:26:43] Speaker 00: That came and left. [00:26:44] Speaker 00: That's what you asked me to do. [00:26:46] Speaker 00: Now you're asking me to wait for the District Court in Delaware to rule on it. [00:26:49] Speaker 00: I'm not going to hold up the judgment that long. [00:26:52] Speaker 00: I'm done here. [00:26:52] Speaker 00: I've done my job. [00:26:53] Speaker 00: I'm going to enter judgment. [00:26:54] Speaker 00: It's now a full year after the verdict. [00:26:56] Speaker 00: No abuse and discretion saying, that's it. [00:26:59] Speaker 00: I'm not going to wait any further. [00:27:00] Speaker 00: And that kind of docket control is at the core of a district court's discretion, how long it's going to wait for other things to happen. [00:27:06] Speaker 00: And it turned out to be especially true because if you'd waited for the district court in Delaware to rule, Intel settled that without getting the issue resolved. [00:27:13] Speaker 00: So we'd still be waiting for a resolution from another court. [00:27:16] Speaker 02: Was the request to sever or quit it [00:27:24] Speaker 02: so it would become a separate case and the judgment in the existing case would be final. [00:27:32] Speaker 00: I don't think that was the intention. [00:27:34] Speaker 00: And that's certainly not the way it was treated. [00:27:36] Speaker 00: And nobody argued it that way. [00:27:38] Speaker 00: It was treated as if it's severing it apart from the defense and just raising it later once you realized what happened in the other courts. [00:27:45] Speaker 00: And even when there was a hearing in November of 2021, when we already know what the Delaware Chancery Court has done, [00:27:52] Speaker 00: They were still saying, look, what you're going to do here, Judge, is the right remedy is to allow the motion to amend and then wait for the decision of the federal district court in Delaware early next year. [00:28:02] Speaker 00: And then they asked the district court to enter judgment based on what the district court in Delaware did. [00:28:06] Speaker 00: So it's all a process of saying, wait, wait, hold up the motion. [00:28:10] Speaker 04: So the motion for leave to amend was made when in relation to the trial date? [00:28:14] Speaker 00: The motion to leave to amend was three months before the scheduled trial. [00:28:17] Speaker 00: And it was three months after they had learned, after they... So why isn't three months enough time to prepare? [00:28:24] Speaker 00: Well, as the district court pointed out, and he was in control of the docket, the expert discovery had closed, summary judgment motions had already passed, and they had all passed during the time of delay. [00:28:34] Speaker 00: And Intel wasn't asking to raise it at the trial. [00:28:37] Speaker 00: Intel was still saying, hey, Judge, you cannot actually adjudicate this. [00:28:40] Speaker 00: We have to adjudicate in Delaware. [00:28:42] Speaker 00: Let's just go ahead with trial. [00:28:44] Speaker 00: I will do days in Delaware, and I will come back to you later and ask you to enter judgment in accordance with that. [00:28:48] Speaker 04: I do feel like I'm confused. [00:28:51] Speaker 04: When they made the motion for leave to amend, they obviously were no longer making the argument about its leave to the Delaware Chancery Court, right? [00:29:00] Speaker 00: No, no. [00:29:01] Speaker 00: They were very clear, Your Honor, that it was a combination of leave to amend and to stay and sever. [00:29:06] Speaker 00: They were saying, this will not affect the trial date, because we're going to sever it and stay it. [00:29:11] Speaker 00: And we're going to wait for Delaware to handle that, and we'll go ahead with our trial. [00:29:14] Speaker 00: And that's actually very clear in their filing. [00:29:16] Speaker 00: It's a very brief filing. [00:29:17] Speaker 02: I would like to- I know you want to switch off the time. [00:29:32] Speaker 00: Yes. [00:29:32] Speaker 00: So I think that the doctrine of equivalence argument, we made it was down to just a single, single limitation. [00:29:39] Speaker 00: And if you turn to page 36 of our brief, I think that's going to show you what the difference is. [00:29:44] Speaker 04: Where's the witness's testimony about this? [00:29:47] Speaker 04: What page have you been? [00:29:49] Speaker 00: So the witness's testimony is [00:30:03] Speaker 00: Inclusory is around 2707, 2706, 2694. [00:30:07] Speaker 00: It's in that range. [00:30:12] Speaker 00: And he was explaining just a single limitation. [00:30:14] Speaker 04: His question was five pages? [00:30:16] Speaker 00: Five pages for a single limitation. [00:30:17] Speaker 00: And you can tell. [00:30:18] Speaker 00: Which page does that start at? [00:30:21] Speaker 00: That would start at 2694, I believe. [00:30:27] Speaker 04: Which volume is that? [00:30:33] Speaker 00: But if you also turn to page 36 of the brief, I can explain exactly what his testimony was. [00:30:40] Speaker 00: Because he's starting with one limitation, just one. [00:30:44] Speaker 00: And that is that the first master device provides a request to change the clock frequency. [00:30:48] Speaker 00: And the only variation from that is the first master device, the core, which is core one or core two, is now going to do it in combination with p code. [00:30:58] Speaker 00: It's not going to do it itself. [00:30:59] Speaker 00: It's going to have the assistance of P code. [00:31:00] Speaker 03: And how about receiving the request? [00:31:02] Speaker 03: Isn't that part of it? [00:31:03] Speaker 00: Pardon? [00:31:04] Speaker 03: Receiving the request. [00:31:05] Speaker 00: And receiving the request will be the PCU decision instructions. [00:31:08] Speaker 00: And that actually is, if you take a look at the claim, [00:31:13] Speaker 00: It says, a programmable proc controller having an embedded computer program therein, the computer program including instructions to receive the request. [00:31:22] Speaker 00: So instructions can receive the request. [00:31:24] Speaker 00: And what receives the request here is PCU decision instructions. [00:31:27] Speaker 00: And if you look at the document next to that diagram on page 36, this is an Intel document making clear that when one module, the P code, is talking to the PCU instructions, [00:31:39] Speaker 00: What's coming is actually a request. [00:31:41] Speaker 00: It says, the third step is to request higher or lower frequency. [00:31:46] Speaker 02: You've got something in the red brief? [00:31:47] Speaker 00: Yes, page 36. [00:31:48] Speaker 00: If you look at the request, it's the P code. [00:31:54] Speaker 00: It's making a request to the PCU decision instructions. [00:31:56] Speaker 00: So it's making a request to instructions, which is precisely what the claim calls for. [00:32:01] Speaker 00: And it says that the request is to higher or lower the frequency. [00:32:05] Speaker 00: So it's a request, according to the Mintel's document right here, and also on page 20, page 45 of the appendix, the district court points out that the code also calls it a request. [00:32:14] Speaker 00: So it's a request, even though it's a module in the PCU talking to another module in the PCU. [00:32:21] Speaker 02: shift, maybe a large shift, but where is the testimony where Dr. Conte says, here's why this difference from the literal infringement isn't substantial? [00:32:34] Speaker 00: So that's on page 2707, Your Honor. [00:32:37] Speaker 00: And he says it's just a difference where an engineer draws this data line. [00:32:41] Speaker 00: And that makes perfect sense, because you could have put, this is all on a single shift, Your Honor. [00:32:45] Speaker 00: This is all on a single line. [00:32:46] Speaker 04: We're on that page. [00:32:47] Speaker 04: Pardon? [00:32:48] Speaker 04: We're on that page. [00:32:52] Speaker 02: Minus 12 to 15, I think. [00:32:55] Speaker 00: Yes, I think that sounds right. [00:33:00] Speaker 00: At this time, we're looking at, yes, page lines 14 to 15. [00:33:04] Speaker 04: So basically, it's half a page on why it's insubstantial. [00:33:12] Speaker 00: Yes, Your Honor, and it's very clear that it's insubstantial when you look at the chart. [00:33:16] Speaker 00: Because remember, this chart right here on page 36, this is actually just a single chip. [00:33:20] Speaker 00: It's all on the single device. [00:33:22] Speaker 00: And so it's a matter of drawing lines between whether you're going to call the P code and move it and say it's going to be part of the core, which we call the master device, or whether you're going to call it part of the PCU. [00:33:31] Speaker 00: And it's just a choice between the two. [00:33:33] Speaker 00: And I know Mr. Lee says, oh, that's a big difference whether you call the P code part of the PCU or to call the P code part of the Corps. [00:33:41] Speaker 00: But it actually isn't. [00:33:42] Speaker 00: And that's not an argument they made to the jury or made below. [00:33:45] Speaker 03: But is one item supposed to meet two claim limitations? [00:33:51] Speaker 00: I'm not sure I follow one item following two claim limitations, but I think the answer is the claim notation of receiving. [00:33:58] Speaker 00: Yes. [00:33:59] Speaker 00: So what receives it, and if you look at the claims, it's clear. [00:34:02] Speaker 00: It says there's a computer program including instructions to receive. [00:34:06] Speaker 00: So it's the instructions that receive. [00:34:09] Speaker 00: That was a computer program with instructions to receive. [00:34:11] Speaker 00: The instructions receive. [00:34:12] Speaker 00: Here, the PCU decision instructions receive. [00:34:16] Speaker 00: and what makes the request. [00:34:17] Speaker 00: The P code makes the request. [00:34:19] Speaker 00: Another module within it. [00:34:20] Speaker 00: So it's two things. [00:34:23] Speaker 04: That's not, you know, that kind of detail is not in your expert's testimony. [00:34:29] Speaker 04: That's the problem. [00:34:30] Speaker 04: I mean, it's supposed to be linking testimony. [00:34:34] Speaker 04: That testimony doesn't say that. [00:34:37] Speaker 00: Well, the testimony does explain that it doesn't make any difference, because it's just a line drawing choice. [00:34:41] Speaker 00: And he had the diagram up, and he was explaining to the jury that, look, this is all one chip. [00:34:47] Speaker 00: It's just a matter of whether you put the P code here, or you put it down there, whether you describe the request as the core at making the request, or you make a request in connection with the P code. [00:34:58] Speaker 02: So you said we had the diagram up. [00:35:00] Speaker 02: How do we know that? [00:35:02] Speaker 00: That's just for memory, Your Honor. [00:35:03] Speaker 00: I don't know if I can point that question, send the diagrams up. [00:35:06] Speaker 00: But I also would like to respond to Mr. Lee's suggestion that somehow it just makes a big difference because it's affecting what universe you're looking at in terms of cores when you're making a decision about how to allocate your clock speed. [00:35:19] Speaker 00: And that's actually true regardless. [00:35:23] Speaker 00: Well, I can point out that that is Dr. Conte's demonstrative. [00:35:27] Speaker 00: which is why I keep pointing to it. [00:35:29] Speaker 00: But it actually doesn't make a difference because remember, the PCU is either looking at core one and core two making the request, which is the literal infringement read, or it's looking at the associated P code from the two of them that are making the request to the PCU decision instructions. [00:35:45] Speaker 00: So the thing making the decision, the instructions, is always looking at multiple core requests. [00:35:50] Speaker 00: It's either looking at the request directly, core one and core two, or the request as it comes through the P code. [00:35:59] Speaker 04: Please address a comment that Judge Toronto made earlier about the damages calculation for the 373 and the technical inputs, which seems to me pretty clear that your expert relied on non-infringing products or features in making the calculation. [00:36:19] Speaker 04: because the C6 SRAM is the only infringing feature, and yet he used core C7 and package C7, one of which doesn't include the infringing feature at all, and the other one includes it only among other things. [00:36:45] Speaker 00: So I should be very clear exactly what happened, because I think this makes a huge difference. [00:36:50] Speaker 00: To the extent, there's a suggestion that he took a value for a core state, a core C7 state, and plugged it in what should have been a package state. [00:36:59] Speaker 04: No, no, no. [00:37:00] Speaker 04: He didn't do that. [00:37:00] Speaker 04: But what he did is he was looking at the Intel spreadsheet and figuring out which one was most comfortable. [00:37:07] Speaker 04: And instead of using the power usage for an infringing [00:37:12] Speaker 04: feature alone in making that calculation, he made the comparison based on a [00:37:17] Speaker 04: non-infringing product and a product which was only partially infringing. [00:37:23] Speaker 00: Judge, that's not actually correct. [00:37:25] Speaker 00: If you turn to page 1584 of the appendix, he was actually asked to clarify what he was looking at when he's choosing what he considers the most accurate model. [00:37:38] Speaker 00: 1584. [00:37:40] Speaker 00: And that's back in volume one. [00:37:46] Speaker 00: And he explained that what he's looking at is across this whole spectrum of numbers to confer that when he chose MobileMark and Nancy, these two Intel data sets, that he was choosing what he thought was the most important. [00:37:58] Speaker 00: And I should make it very clear that this is all Intel data. [00:38:02] Speaker 04: And what he is doing- I understand that. [00:38:04] Speaker 04: But in making his choice, the point of comparison he's making, by his own admission, [00:38:12] Speaker 04: was using Core C7, and that's not something that's infringing. [00:38:21] Speaker 00: What he did was, and remember, I mean, he probably does not say that the workloads he chose were not representative, and that's on page 194. [00:38:31] Speaker 00: It doesn't say there's a workflow that's better, and it doesn't say that any of the data is wrong. [00:38:35] Speaker 04: I don't understand what you're saying. [00:38:36] Speaker 04: My question is, he used Core C7 [00:38:39] Speaker 04: in choosing which values from the Intel spreadsheet to use. [00:38:43] Speaker 04: And that was a non-infringing product. [00:38:45] Speaker 00: He actually used all the core residencies, what he called the whole spectrum of numbers to confirm. [00:38:51] Speaker 00: And he did that for a reason, because he's trying to figure out which of all of these valid Intel models. [00:38:57] Speaker 00: And he chooses MobileMark, and he chooses Nancy. [00:39:00] Speaker 00: He says, OK, why am I not going to choose Anatoly? [00:39:03] Speaker 00: Why am I going to choose Nancy? [00:39:04] Speaker 00: And he ran to the [00:39:06] Speaker 00: And given that there's no argument that any of those are no good, that any of them are wrong, he's actually justified specifically when he used core C7. [00:39:15] Speaker 04: He testified that Core C7 is not right. [00:39:19] Speaker 00: And he used, in addition to Core C7, the whole spectrum of numbers. [00:39:22] Speaker 04: Because what he did is he said, no one's saying that- The whole spectrum of numbers of what numbers? [00:39:28] Speaker 00: Of what he did when he did his own real world tests. [00:39:30] Speaker 00: And he said, I have a bunch of options. [00:39:32] Speaker 00: If you look at a page, maybe I should slow it down. [00:39:35] Speaker 00: If you took it 3137, which is an image of Intel's power model, [00:39:41] Speaker 00: In the upper left-hand corner, you see these things. [00:39:44] Speaker 00: And so you select the actual infringing processor, right? [00:39:49] Speaker 00: And then you choose Resonancy and Workload. [00:39:52] Speaker 00: And the workload he selected is MN12, which is MobileMark, a well-known simulator of how people use computers. [00:39:59] Speaker 00: And he chose Nancy. [00:40:00] Speaker 00: And Nancy is an Intel engineer who ran these simulations on [00:40:06] Speaker 00: this infringing processor. [00:40:08] Speaker 00: So we're down to the infringing processor with MobileMark, and it's an Intel run with Nancy. [00:40:13] Speaker 00: And he says, and this is again on page 3141, and he wants to say, I want to make sure that Nancy is the right one to choose, that I shouldn't choose Anatoly, I shouldn't choose something else. [00:40:23] Speaker 00: And these are all Intel data. [00:40:24] Speaker 00: Intel doesn't say any one of them is wrong or not representative. [00:40:28] Speaker 00: And he says, what I'm going to do is I'm going to do my own task. [00:40:31] Speaker 00: And this is all a matter of just oververifying. [00:40:33] Speaker 00: We do my own test, and I'll take a look, and I'll see which one corresponds to my own test. [00:40:37] Speaker 00: And so he runs his own test, and he gets all the data that you see on 3132. [00:40:41] Speaker 00: And that includes core C7 state, and then system C7 states, also bold, 2 thirds the way down. [00:40:47] Speaker 00: There's two columns of that, and a whole bunch of other things. [00:40:51] Speaker 00: And what he just says is, look. [00:40:52] Speaker 00: And then he describes it on page 3141. [00:40:56] Speaker 04: So what you're saying is that in making these choices, he used his own data. [00:41:00] Speaker 04: But he also testified that he used non-infringing data. [00:41:05] Speaker 00: He used what he's looking at. [00:41:07] Speaker 00: He's looking at the residencies. [00:41:08] Speaker 00: And what residencies mean is when you run the computer, you're looking at the various states. [00:41:12] Speaker 00: He said it was core C7, right? [00:41:13] Speaker 00: Yes. [00:41:13] Speaker 00: He looks at that. [00:41:14] Speaker 00: He looks at core. [00:41:15] Speaker 00: He looks at package C7. [00:41:16] Speaker 04: So you're saying that it doesn't matter because it's only one of the things that he considered? [00:41:21] Speaker 04: It's not the only thing he considered? [00:41:24] Speaker 00: This is what he's trying to do. [00:41:26] Speaker 04: No, no, answer that question. [00:41:27] Speaker 04: Is that your argument that it's OK to use something that's irrelevant because it's only one of the things that he used? [00:41:34] Speaker 00: It's not irrelevant. [00:41:35] Speaker 00: I'll tell you the difference between core C7 and package C7. [00:41:38] Speaker 00: You'll see why. [00:41:38] Speaker 00: We would make sure that you're going to look at that. [00:41:41] Speaker 00: Core C7 simply means you have a single core that's taking a nap. [00:41:45] Speaker 00: Package C7 is you have a group of associated cores taking naps, core versus package. [00:41:51] Speaker 00: And so what he's going to do is he's going to take Nancy's numbers. [00:41:53] Speaker 00: He says, look, Nancy's number for poor looks a lot like my numbers for poor, he said. [00:41:58] Speaker 00: Nancy's numbers for package look like my numbers for package. [00:42:01] Speaker 00: Nancy's numbers for other things look like my numbers for things. [00:42:04] Speaker 00: Nancy's numbers most correspond [00:42:08] Speaker 00: to what I observed as real world results. [00:42:11] Speaker 00: And when you're looking at residencies, this is the various states the computer can be in. [00:42:15] Speaker 00: And he says, gee, all the states the computer can be in, Nancy looks like the real world in my view. [00:42:20] Speaker 00: And so when he does that, he's not choosing something that's a wrong input. [00:42:25] Speaker 00: He's simply saying, Nancy simulation looks like my simulation overall. [00:42:29] Speaker 00: And therefore, it's OK to choose the Nancy data set. [00:42:32] Speaker 00: But when Intel's not going to say Nancy's wrong, [00:42:35] Speaker 00: When Intel will not say Nancy's not representative, and their experts said, Intel won't say something comes with a different result, that isn't error. [00:42:42] Speaker 03: Thank you, Mr. Lamkin. [00:42:43] Speaker 03: We've given you plenty of extra time. [00:42:47] Speaker 03: Thank you. [00:42:47] Speaker 03: And I think we've evened up the Mr. Lin 11 minutes of the webinar. [00:43:06] Speaker 01: Let me make five points. [00:43:08] Speaker 04: Could you start with the last one while it's fresh in our minds? [00:43:13] Speaker 01: On Dr. Anivaram and what he did. [00:43:16] Speaker 04: And using core C7, package C7. [00:43:19] Speaker 01: Your Honor, I just don't think you can reconcile what Mr. Lampkin said with a record. [00:43:25] Speaker 01: If you look at page [00:43:30] Speaker 01: 3132, you'll see the results of the work that he did. [00:43:34] Speaker 01: And you'll see that he bolded two things, Core C7 and Package C7. [00:43:40] Speaker 01: You will see that they differ, one's 80% and one's 40%. [00:43:44] Speaker 01: He did that for a reason, because he used that residency data to basically determine the workload [00:43:54] Speaker 01: information he wanted to input into that Intel model. [00:43:58] Speaker 01: He chose 80% as the number, not 40%. [00:44:03] Speaker 01: So he actually took a higher number for a non-accused feature [00:44:08] Speaker 01: applied it to the accused feature and reached the conclusion that the accused feature would be used about twice as much as his own analysis would suggest. [00:44:19] Speaker 01: He did this all for a reason. [00:44:21] Speaker 01: The idea that there was no reason for him to do this and then he takes that [00:44:25] Speaker 01: Residency data, residency means how long you're using it, translates into workload. [00:44:30] Speaker 01: And when you look at the exhibit that we provided support with, the panel with, you'll see that they're both residency and workload inputs. [00:44:39] Speaker 01: You put those in and then the model does its work. [00:44:43] Speaker 01: It has all these algorithms. [00:44:45] Speaker 01: It tells you power consumption, lots of different things. [00:44:48] Speaker 01: By inputting [00:44:49] Speaker 01: workload fits twice as much as what his typical numbers say. [00:44:54] Speaker 04: But Mr. Lamkin is saying that he didn't just use Core C7 and Package C7 as the inputs to choose the right data from the Intel spreadsheet. [00:45:07] Speaker 04: He said he used his own data. [00:45:08] Speaker 01: Now, actually, Your Honor, if you look at, this is where I said I had trouble reconciling the argument with what occurred. [00:45:14] Speaker 01: If you look at appendix 1580 to 1581, he said he used that data to do the matching. [00:45:21] Speaker 01: He didn't make this argument about, I had lots of other data myself. [00:45:24] Speaker 01: He said, I used the data for core C7 to do the match. [00:45:29] Speaker 01: And that's why the number comes out twice as much. [00:45:33] Speaker 01: So let me do the other part of Dr. Antibarum that goes back to the beginning of Michelle Lampson's argument. [00:45:40] Speaker 01: And when you were asking about the difference between the ring bus and the ring domain, if you look at their brief carefully, [00:45:48] Speaker 01: they start to collapse the concepts of power and frequency. [00:45:54] Speaker 01: Yes, the ring domain and the ring bus might operate at the same frequency. [00:45:59] Speaker 01: But Dr. Anivaram was measuring power consumption. [00:46:03] Speaker 01: And when you consider Mr. Lampkin's argument, you'll notice that he's coming back to frequency. [00:46:08] Speaker 01: That's not what Dr. Anivaram was measuring. [00:46:11] Speaker 01: He was measuring power consumption. [00:46:14] Speaker 01: And when you're measuring power consumption, he has a problem. [00:46:19] Speaker 01: Because the ring domain, the full, [00:46:22] Speaker 01: component consumes more power than the ring bus. [00:46:27] Speaker 01: That's why Dr. Conkey said, measure the power consumption of the ring bus, not the ring domain, so you could start to isolate the contribution of the juice feature. [00:46:40] Speaker 01: So this question of frequency is just entirely irrelevant. [00:46:45] Speaker 01: It was made in the brief. [00:46:46] Speaker 01: It's not what Dr. Anabaram said. [00:46:49] Speaker 01: So on both [00:46:50] Speaker 01: both pets, Dr. Anivaram has mistakes, mistakes at their core that go translate into the amounts specifically. [00:47:01] Speaker 01: And I was reminded, rather, that there is in the record. [00:47:05] Speaker 02: This ring bus ring domain is embarrassed on the 759. [00:47:10] Speaker 01: 373. [00:47:11] Speaker 01: Yes. [00:47:15] Speaker 01: I was collapsing the two. [00:47:19] Speaker 01: The rain domain, rain bus issue, bears in 759. [00:47:24] Speaker 02: So you have two, what you say are two areas, two very focused Abunaram errors, one for each. [00:47:32] Speaker 01: Yes. [00:47:33] Speaker 01: So the error that, the error I was just addressing was for, yeah, the ring domain issue is for the 759. [00:47:40] Speaker 01: The other error that he made was for the 373. [00:47:44] Speaker 01: Both of them are critical for the analysis. [00:47:45] Speaker 01: Both of them have an effect. [00:47:47] Speaker 01: And you're honored to go to your question. [00:47:49] Speaker 01: At A 5372 to 73, there actually is information from our expert, Dr. Sylvester, about the effect of measuring just the ring, measuring the ring domain as opposed to just the ring bus. [00:48:05] Speaker 02: So that's a half. [00:48:06] Speaker 02: You said that was 8-5? [00:48:07] Speaker 01: 5372 to 5373, paragraphs 761 to 767. [00:48:16] Speaker 01: So that would be point one. [00:48:18] Speaker 01: Point two goes back to the Doctor of Equivalence. [00:48:22] Speaker 01: And some of the testimony that Mr. Lampkin cited to you at the beginning was the literal infringement testimony, not the Doctor of Equivalence testimony. [00:48:32] Speaker 01: And when they were providing their literal infringement testimony, it was here, the core is the master device, the PCU is the clock controller, all this software that he was referring to. [00:48:47] Speaker 01: They had them as two distinct devices. [00:48:49] Speaker 01: The jury didn't accept that argument. [00:48:52] Speaker 01: The testimony that goes to your question on is this equivalent to having the master device work with a portion of the PCU to be requesting the change in frequency is a 2707 to 2710. [00:49:09] Speaker 01: And the only [00:49:11] Speaker 01: The only advocated equivalence is what Judge Toronto cited, which was it's a design choice. [00:49:18] Speaker 01: Everything's a design choice. [00:49:19] Speaker 02: Well, there was a sentence before the design choice. [00:49:22] Speaker 02: Yeah, he said it just doesn't matter where the engineers draw the line. [00:49:26] Speaker 02: That's actually more specific. [00:49:28] Speaker 01: And the answer is it does. [00:49:30] Speaker 01: If you're going to say it doesn't matter. [00:49:33] Speaker 02: Why can't the jury conclude otherwise? [00:49:35] Speaker 01: Your Honor, because the jurisprudence of this court requires a little bit more than just saying it doesn't matter. [00:49:40] Speaker 01: You have to say why it doesn't matter and why the difference would be insubstantial. [00:49:44] Speaker 02: And the figure that was apparently part of the demonstrative doesn't indicate that? [00:49:53] Speaker 01: That's their figure. [00:49:54] Speaker 01: And everything that they were drawing boxes around are in the PCU, which for little infringement purposes, it was a completely separate component. [00:50:03] Speaker 02: So you have a complete separate power control unit. [00:50:06] Speaker 02: One of the documents calls it a package control unit. [00:50:09] Speaker 01: No, all of this software. [00:50:11] Speaker 02: I'm just asking about the accurate. [00:50:13] Speaker 01: It's the power control unit. [00:50:16] Speaker 01: Yes. [00:50:17] Speaker 01: Power control unit. [00:50:18] Speaker 01: All this software is in the power control unit, the separate component separate from the cores. [00:50:24] Speaker 01: And for a reason that I described earlier and [00:50:29] Speaker 01: They identified it as a separate component for little intervention purposes. [00:50:32] Speaker 01: Now, if you generously interpret Dr. Conti's testimony, he's suggesting to take some of that software and... Maybe I'm just confused about this. [00:50:43] Speaker 02: I thought the absolutely typical way of saying [00:50:51] Speaker 02: literally required and say this is just a really small change. [00:50:54] Speaker 02: So the fact that it's mostly describing a literal infringement case [00:51:01] Speaker 02: and is departing from that, that's practically definitional of Doctrine of Equivalence. [00:51:07] Speaker 01: I don't think so. [00:51:08] Speaker 01: And this is the circumstance, in this case, where the master device is the core, the PCU is the clock controller, and there's a specific request described for little infringement purposes. [00:51:22] Speaker 01: Then you get to the Doctrine of Equivalence and they say, well, [00:51:25] Speaker 01: The master device is the core, but it's working with this software in the PCU. [00:51:31] Speaker 01: The request is different. [00:51:35] Speaker 01: They have to make the request different, because now the request doesn't occur until you get within the PCU. [00:51:41] Speaker 01: And the PCU is making the request to itself. [00:51:46] Speaker 01: It doesn't make sense. [00:51:47] Speaker 01: There's a reason it's done that way. [00:51:49] Speaker 01: And it's not enough, because if your honors articulation was sufficient, [00:51:53] Speaker 01: The doctor will come to this testimony, and most jury trials will take 60 seconds. [00:51:58] Speaker 01: And the Texas instrument cases and the other cases, the courts say no. [00:52:03] Speaker 01: This is an exception to the little one. [00:52:04] Speaker 01: This is on top of little infringement. [00:52:07] Speaker 01: You have to prove more, and they haven't done it. [00:52:09] Speaker 01: And when you haven't done it in a circumstance where the result is nonsensical, where the structure of the claim requires two components, and you have the second component both issuing the request and receiving it, and it's inconsistent with what you said in the file history, it cannot be that there's a doctoral equivalence argument. [00:52:29] Speaker 01: Fourth and fifth points. [00:52:32] Speaker 01: Mr. Lamkin said that the Delaware case was settled. [00:52:37] Speaker 01: That's not true. [00:52:39] Speaker 01: In the Delaware case, the magistrate judge found that there was reason to allow us to amend. [00:52:45] Speaker 02: I thought there was a settlement in December of 2022, and the case is gone. [00:52:49] Speaker 01: They dismissed their case with prejudice. [00:52:51] Speaker 01: That's what I mean by said. [00:52:52] Speaker 01: It was not settled. [00:52:54] Speaker 01: Oh, OK. [00:52:55] Speaker 01: It's gone, anyway. [00:52:56] Speaker 01: That's what they wanted to point out. [00:52:57] Speaker 01: You're correct. [00:52:58] Speaker 01: It's gone. [00:52:59] Speaker 01: And it's gone after two events. [00:53:01] Speaker 01: And I guess what I'm quarreling with is that the magistrate judge allowed the amendment. [00:53:05] Speaker 02: That seems not to have been appealed to the district judge. [00:53:09] Speaker 02: Is that right? [00:53:09] Speaker 01: Yes. [00:53:10] Speaker 01: And found that it was not futile. [00:53:14] Speaker 01: And would have allowed us to pursue it. [00:53:15] Speaker 04: Without explaining why it was not futile. [00:53:18] Speaker 01: Yes. [00:53:18] Speaker 01: It was not futile because the license agreement requires you can be controlled or ownership. [00:53:25] Speaker 01: And they understood that. [00:53:26] Speaker 04: Did the district judge explain this? [00:53:28] Speaker 01: Yes she said she she looked at it and said it wasn't futile. [00:53:31] Speaker 01: I can't remember precisely what she said on that issue but she dealt with the same futility arguments that were made to the district court in Texas. [00:53:39] Speaker 02: Am I remembering right without the sheets for the reasons stated in the oral hearing that we don't have a transcript because of course everything in the world is sealed. [00:53:49] Speaker 01: That's why I'm having trouble pulling the specifics now but [00:53:52] Speaker 01: The same arguments that were made to the district court in Texas were made to the magistrate judge in Delaware. [00:54:00] Speaker 01: Recall that this license agreement has a little bit of a conundrum. [00:54:03] Speaker 01: It says that the license agreement should be litigated and determined in the Delaware court. [00:54:09] Speaker 01: But it also says that if you're sued and you want to assert it as a defense, you can assert it as a defense. [00:54:15] Speaker 01: And all we're looking for is an opportunity to assert it as a defense. [00:54:21] Speaker 01: Last point, if I could, Your Honor. [00:54:25] Speaker 01: Quickly. [00:54:25] Speaker 01: On the license agreement itself, point A and point B. Point A is district court said that there was prejudice to VLSI because the trial had occurred. [00:54:41] Speaker 01: We moved three months before the trial occurred. [00:54:44] Speaker 01: This was in the middle of the pandemic. [00:54:45] Speaker 01: There were two mandamus petitions to this court to help determine the trial date. [00:54:51] Speaker 01: We moved, and we moved before the dispute resolution process had been completed. [00:54:57] Speaker 01: Second point is, the issue is not ownership. [00:55:00] Speaker 01: It's control. [00:55:02] Speaker 01: And we alleged common control, common board of directors, common management of the companies, [00:55:09] Speaker 01: There is no doubt that we've made the allegations, and we're just requesting an opportunity to fully discover all the facts which we think support our allegations. [00:55:20] Speaker 01: And it's a defense that has consequences here. [00:55:23] Speaker 01: It has consequences in the following cases in Texas. [00:55:26] Speaker 01: It has consequences in the following cases in California. [00:55:28] Speaker 03: Thank you, Mr. Lee. [00:55:30] Speaker 03: We thank both counsel and cases submitted.