EXHIBIT 2

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

JENS H.S. NYGAARD * March 22, 2021 

 *

VS. * CIVIL ACTION NO. W-20-CV-234 

 *

FEDERATION INTERNATIONALE * 

 DE L'AUTOMOBILE, ET AL * 

BEFORE THE HONORABLE ALAN D ALBRIGHT

MARKMAN HEARING (ZOOM)

APPEARANCES:

For the Plaintiff: Ahmed J. Davis, Esq.

Fish & Richardson PC

1000 Maine Ave. SW, Ste 1000

Washington, DC 20024

Brian Gregory Strand, Esq.

Danielle Joy Healey, Esq.

Fish and Richardson PC

1221 McKinney St - Ste 2800

Houston, TX 77010

W. Thomas Jacks

Fish & Richardson P.C.

111 Congress Avenue, Suite 810

Austin, TX 78701

For Defendant Federation Internationale de l'Automobile:

Claudia Wilson Frost, Esq.

Jeffrey Lance Johnson, Esq.

Orrick, Herrington & Sutcliffe LLP

609 Main, 40th Floor

Houston, TX 77002

Travis Jensen, Esq.

Orrick, Herrington & Sutcliffe LLP

1000 Marsh Road

Menlo Park, CA 94025-1015

Jeff Quilici, Esq.

Orrick, Herrington & Sutcliffe LLP

300 West 6th Street, Suite 1850

Austin, TX 78701 

Case 6:20-cv-00234-ADA Document 265-2 Filed 01/24/22 Page 2 of 10
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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

2

For Defendants Formula One Management Ltd, Delta Topco Ltd, 

 Formula One World Championship:

Timothy S. Durst, Esq.

Harrison Rich, Esq.

Douglas M. Kubehl, Esq.

Baker Botts L.L.P.

2001 Ross Avenue, Suite 600

Dallas, TX 75201-2980

For Defendant Red Bull: Deron R Dacus, Esq.

The Dacus Firm, P.C.

821 ESE Loop 323, Suite 430

Tyler, TX 75701

Edgar Haug, Esq.

Roman Khasidov, Esq.

Mark A. Chapman, Esq.

Haug Partners, LLP

745 Fifth Avenue, 10th Floor

New York, NY 10151

For Defendant Dallara Automobili S.P.A.:

Brian S. Jones, Esq.

Bose McKinney & Evans LLP

111 Monument Circle, Suite 2700

Indianapolis, IN 46204

Court Reporter: Kristie M. Davis, CRR, RMR

PO Box 20994

Waco, Texas 76702-0994

(254) 340-6114

Proceedings recorded by mechanical stenography, transcript 

produced by computer-aided transcription. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

39

when your expert prepares his or her report and wants to say 

that the defendants' products infringe this element because -- 

and that the reason why is it has everything that you have 

identified in your buttressing, let me tell you, you're not 

going to -- it's not going to hurt you for your expert to say 

the reason we think they infringe is because what they do reads 

on our preferred embodiment. 

And so I'm not anticipating an 02 Micro issue here just 

because you say that it doesn't infringe because it does that. 

That, to me, is probably your best argument for what it's 

worth. And I don't care what your arguments are. That's not 

my role. 

But I'm just saying that my reduction, as it were, of 

the preliminary construction to plain and ordinary meaning in 

no way prevents you, the plaintiff, from arguing that the 

products infringe because of exactly the way you read the plain 

and ordinary meaning to be. 

So with that being said, the Court is going to adopt the 

construction of plain and ordinary meaning for this claim term. 

The next claim term is "second linearly extending 

structural unit" and "the second structural units." 

I'll start with the defendants since Mr. Davis has already 

told me that they are in agreement -- or the plaintiff is in 

agreement with my construction. 

MR. RICH: Yes, Your Honor. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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This is Harrison Rich from Baker Botts on behalf of the 

defendants. 

THE COURT: Yes, sir. 

MR. RICH: And we disagree with the Court's construction. 

So we would like to have a discussion about it. 

May I proceed, Your Honor? 

THE COURT: Oh, of course. I didn't make that clear. 

Yes. Of course. 

MR. RICH: Okay. So, Your Honor, the next terms are 

related terms that appear in Claim 2. And the two terms are 

"second linearly extending structural unit" and "the second 

structural units." 

And the Court adopted a plain and ordinary meaning for the 

preliminary construction. And defendants are going to stand on 

their briefing as to the indefiniteness issue for this term. 

But we do want to discuss the plain and ordinary meaning 

construction in light of the mismatch between the singular and 

plural usage of these terms. 

So with that preview, I want to take a quick look at Claim 

2. We've highlighted the two terms that we're discussing here 

on Slide 44. And I want to start with the second recitation of 

the claim term, "the second structural units." 

That recitation is unquestionably plural because it ends 

in S. And it's introduced with the article "the," meaning we 

have to look earlier in the claim for the antecedent. And when 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

41

we do that, we see that the antecedent is "second linearly 

extending structural unit." That's a singular recitation. 

So the problem here is we have a plural recitation of the 

term, referring back to a singular recitation of the term. 

Now, we understand from the briefing that plaintiff views 

the plain and ordinary meaning of both of those two terms to 

require plural second structural units. 

Now, I've excerpted the relevant parts of plaintiff's 

brief on Slide 45. At the top of this slide we see that the 

plaintiff equated the third aspect of the invention to Claim 2, 

which is the claim that these terms appear in. 

And then in the section where these terms were being 

argued, plaintiff stated that the plural usage is correct when 

dealing with the third aspect, which they equated to Claim 2. 

And that's consistent with everything else that the

plaintiff cited in the argument on these terms. All of the 

intrinsic evidence that plaintiff cited was plural usage of 

"second linearly extending structural units." 

We see here on Slide 46 these are the figures that 

plaintiff cited in the briefing. Figure 22 on the left, we've 

highlighted the second structural units blue. Those are shown 

in plural. 

And on the right we cited -- plaintiff cited Figure 26A. 

And, again, we've highlighted blue, "the second linearly 

extending structural units." And those are again shown in 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

42

plural here. 

Same with the detailed description citations in 

plaintiff's brief. 

All of those parts of the specification that were cited 

show plural second structural units. There are no instances in 

the cited parts of the specification where a singular second 

linearly extending structural unit is disclosed. So we 

understand that plaintiff has argued that the plain and 

ordinary meaning of these two terms refers to plural second 

linearly extending structural units. 

Now, if plaintiff is going to walk away from its assertion 

that the plural usage is correct for these terms, we'd like to 

hear that now because we need to be in a position to prepare 

our defenses on these terms. 

Otherwise, we're going to proceed with the understanding 

that these two terms require plural usage, as plaintiffs stated 

in the briefs. 

THE COURT: Mr. Davis? 

MR. DAVIS: Yes, Your Honor. Thank you for the 

opportunity to respond. 

I think what our expert, Mr. Syson, said and what we cited 

in our brief was that a person of ordinary skill in the art 

would understand these terms to mean "unit" or "units." So it 

could be singular or plural. 

And the figures that were shown just a moment ago are 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

43

embodiments from the patent. Obviously, the fact that they're 

embodiments doesn't mean that the claim should be limited to 

that. We acknowledge that there -- unfortunately, it does 

appear there has been a typographical error. But we think, 

based on our expert's testimony, that a person of ordinary 

skill in the art would read it that way.

An additional point that I will raise, Your Honor, is that 

looking at the claim as a whole, the inventor chose to claim 

that in describing the first linear extension, as saying there 

are at least three. 

If, in fact, what counsel is suggesting is that there 

should be uniformity in how the claim is interpreted if these 

were meant to be purely plural, then one would have expected 

the claims to say at least two. 

That's not what the claims say. They started with "unit," 

singular. And the position we have taken and advocated for is 

that it would mean "unit" or "units." 

We think the Court's construction -- certainly we don't 

think that this is indefiniteness -- indefinite. And we think 

that the Court's proposed construction, plain and ordinary 

meaning, is the right one. 

THE COURT: Well, I understand -- here's the problem. 

What I don't want to have at trial is a situation where you all 

are arguing over what the plain language means and doesn't 

mean. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

44

So here's what I'm going to do on this one. I'm going 

to -- I don't -- we did not find it indefinite. I'm not going 

to find it indefinite. 

But here's what we're going to do -- here's my invitation: 

When the plaintiff proffers to the defense counsel its 

infringement contentions and takes a position with regard to 

infringement with respect to whether or not these claim 

elements are met, if there is an issue that defendants believe 

exists over -- which is a Markman issue, meaning you believe 

that the position that the plaintiff's expert or experts have 

taken is not the plain and ordinary meaning, as it should be 

understood in terms of the patent, then I want the defendants 

to come back at that time, and I will look and see if I find 

that the plaintiff -- that the plaintiff's expert's

construction -- sorry -- opinion based on its construction and 

use of the plain and ordinary meaning of this claim term, 

"second linearly extending structural unit" and the "second 

structural units," is appropriate or not. 

And if it is, then I will -- if I find -- if you come to 

me at that stage, I'll make a determination either that the 

plaintiff's expert is correct or, at least not correct, meaning 

there's infringement, just correct in terms of the use of the 

claim term. And I will allow, if you proceed to trial, with an 

understanding that the plaintiff's interpretation of plain and 

ordinary meaning is correct. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

45

Obviously, if I find that the plaintiff has taken a

position that I determined not to be the plain and ordinary 

meaning, given the difference between a "second linearly 

extending structural unit" on the one hand and the use of the 

word the "second structural units" on the second, then I will 

make my determination at that time that the plaintiff's 

application of plain and ordinary meaning is incorrect. 

I don't know if that will mean the filing of a motion for 

summary judgment or what, but I think we're not -- we won't go 

to trial on this if the defendants don't want to, with the 

parties having a different position on what is meant by "second 

linearly extending structural unit" and whether it's singular 

or plural. Once we have the infringement opinions, I will make 

my determination at that time as a matter of law. 

So I think that resolves this claim term and leaves us 

with the final one, which begins with "wherein the 

strengthening member has..." And, again, Mr. Davis told me 

earlier that the plaintiff is copacetic with the Court's 

preliminary construction. Therefore, I will hear from counsel 

for the defendants as to why they believe it's indefinite. 

MS. FROST: Good morning, Your Honor. It's Claudia Frost. 

I'm going to argue this term for the defendants. 

And in the brief time we have left, I'm going to focus on 

the limitations that are set out on Slide 53 if I can get that 

put up. 

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