1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:58

01:31

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS LLC * October 21, 2020 

 *

VS. * CIVIL ACTION NOS. 

 *

DELL TECHNOLOGIES INC. ET AL * W-20-CV-473 thru 482, 485, 486 

BEFORE THE HONORABLE ALAN D ALBRIGHT

TELEPHONIC SCHEDULING CONFERENCE

APPEARANCES:

For the Plaintiff: James L. Etheridge, Esq.

Ryan Scott Loveless, Esq.

Travis Lee Richins, Esq.

Etheridge Law Group, PLLC

2600 E. Southlake Blvd., Suite 120-324

Southlake, TX 76092

Mark D. Siegmund, Esq.

Law Firm of Walt Fair, PLLC

1508 N. Valley Mills Drive

Waco, TX 76710

For the Defendant: Barry K. Shelton, Esq.

Shelton Coburn LLP

311 RR 620 S, Suite 205

Austin, TX 78734-4775

Benjamin Hershkowitz, Esq.

Brian Rosenthal, Esq.

Gibson, Dunn & Crutcher LLP

200 Park Ave.

New York, NY 10166

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. 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 1 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

01:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

2

(October 21, 2020, 1:31 p.m.) 

MS. WALLACE: Court calls Waco Case 20-CV-473, 474, 475, 

476, 477, 478, 479, 480, 481, 482, 485 and 486, WSOU 

Investments versus Dell Technologies Inc., et al for scheduling 

conference. 

THE COURT: If I could hear announcements from counsel, 

please. 

MR. SIEGMUND: Good afternoon, Your Honor. This is Mark 

Siegmund for plaintiff WSOU, and with me today I have Mr. Jim 

Etheridge from the Etheridge Law Group, Ryan Loveless and 

Travis Richins all from the Etheridge Law Group. 

THE COURT: And who will be speaking? 

MR. SIEGMUND: Myself and Jim, Your Honor. 

THE COURT: Okay. Good to hear from you. 

And for defendants? 

MR. SHELTON: Good afternoon, Your Honor. This is Barry 

Shelton of Shelton Coburn LLP. Today we have two client 

representatives. First is David Kuznick from Dell Technologies 

and Danielle Coleman from VMware, and speaking today for the 

defendants will be Brian Rosenthal from Gibson Dunn, and also 

here today is Benjamin Hershkowitz from Gibson Dunn. 

THE COURT: Very good. Well, I always try to welcome 

folks who are either in-house or clients who have taken the 

time to attend. I very much appreciate it. 

So I'm happy to take up whatever the issues are. 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 2 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:32

01:32

01:32

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:33

01:34

01:34

01:34

01:34

01:34

01:34

01:34

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

3

MR. ETHERIDGE: Well, Your Honor, this is Jim Etheridge 

speaking for WSOU. Maybe the first one to take up is a fairly 

easy one. It relates to foreign discovery. You might remember 

we had a pretty thorough discussion of this at our CMC with 

Huawei on Friday, and the result from the Court was that we 

would go ahead and start foreign discovery with regard to 

inventors and the entities and that the process could start, 

although discovery wouldn't start till after the Markman. 

After that call we had a meet and confer with Mr. Shelton who 

was also on that CMC and inquired if we took the same position, 

and we told them that we do. We're fine with that. After 

that -- afterwards we got more correspondence from him 

basically really extending the reach and the scope of that 

discovery in addition to just the inventors and the entities 

through which the -- you know, the patents had passed, wanted 

discovery of inventors from other patents that are not in this 

suit. Dell's position is that that's relevant because they 

were incorporated by reference. He wants discovery of any 

foreign firms whose name appears in any of the prosecution that 

would be foreign law firms. He goes deeper and asks for 

discovery of any prosecuting attorneys whose names appear in 

any of the prosecution file references and then also discovery 

of any person that's signed a document in the chain of title, 

and that's again separate from, you know, discovery on the 

entity, and then finally discovery of all entity names that 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 3 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:34

01:34

01:34

01:34

01:34

01:34

01:34

01:34

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

01:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

4

appear anywhere in the chain of title even if they're not the 

signatory parties. 

So we stand by the decision last week of the Court that I 

think it's fine to start discovery with regard to inventors and 

the actual entities who had an ownership in the patents as they 

were transferred. Our concerns are with this broad ranging 

discovery is it's just not proportional to the needs of the 

case, and subpoenaing law firms and lawyers probably is going 

to not result in very much and probably are going to be picking 

up work product and privilege objections and taking up the time 

of the Court prior to the Markman. 

And also just having looked back at what the Court has 

permitted before, you know, discovery's always been somewhat 

limited. So I just kind of remind you of the analogy, if you 

give a mouse a cookie, then, you know, they continue to ask for 

more and more. It just doesn't seem like there's much to be 

found from trying to depose a person who signed a document in 

the chain of title because that person might have some 

information about the licensing of the patents when none of 

that evidence exists, and it seems like a fishing expedition. 

So I would suggest we have the same scope and range that we 

concluded that the Court permitted in Huawei and that we stop 

it there before the discovery gets incredibly expansive. 

THE COURT: I'll hear from defendants. 

MR. ROSENTHAL: Your Honor, it's Brian Rosenthal. Thank 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 4 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:35

01:35

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:36

01:37

01:37

01:37

01:37

01:37

01:37

01:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

5

you. Good to talk to you today. 

Yes. So just factually I don't think it makes much of a 

difference, but we didn't start with a request for assignees 

and inventors and then once we got that, asked for more. 

That's not at all what happened. We sent two or three weeks 

ago a list of all of the foreign discovery that we wanted to 

pursue in this case. And that included assignees, inventors, 

and it included both that have prosecuted the patents and it 

included some of the other categories that are -- that Jim just 

mentioned a moment ago. 

We've always from the beginning of that correspondence 

sought all of that. What happened on Monday when we had our 

meet and confer is that we said, look. We understand that the 

Court ruled on Friday that foreign discovery can proceed as far 

as the procedures can be begun as long as the discovery itself 

does not take place until after the Markman hearing, and so we 

assume that you all are okay and that we can proceed on that 

basis. And the response that we got was, well, we're okay with 

that with respect to the assignees and the inventors. We're 

not okay with that with respect to the other categories. We 

did not understand that there was any sort of discussion of the 

metes and bounds of what would and would not be included in the 

foreign discovery on Friday's hearing in the Huawei case. Mr. 

Shelton was on that call. I was not. But we understood that 

the question was one about timing. Foreign discovery requests, 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 5 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

6

can they be in fact begun at this point as long as the 

discovery itself does not take place until after the Markman 

hearing. So I don't see any reasonable distinction or any 

meaningful distinction between foreign discovery that we need 

to take. That takes a long time. It's a lot of countries 

we've got to go to. Whether that discovery is of an assignee 

or whether that discovery is of, you know, a former assignee, 

one of the companies in the chain. So from a timing 

perspective, our understanding is the whole point of this is 

foreign discovery takes a long time. If we wait until May to 

start those requests, there's no chance that we're going to get 

that information in time to use it for the trial. And that's 

the reason to start it now. 

With respect to the categories of information that we're 

looking for, you know, the fact that there are a lot of 

different categories of the product of a fact that we've got 

12 cases here, each of which are totally different patents in 

totally different families, most of the time came from totally 

different companies that were acquired by various Alcatel 

companies, there's all kinds of different history. This is not 

a straightforward situation where you got two or three patents 

that were, you know, developed out of an R&D department in 

France and we're just looking to get some information from the 

companies from which the development occurred, that's not this 

case. This case is -- and these cases have to do with lots of 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 6 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:38

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

7

different companies that reside in lots of different places 

around the world, and these patents have moved around and moved 

around several times, and so they were -- you know, Nokia was a 

former owner of some of these patents. There were assignments 

that were granted. There were sales that were granted. Each 

and every one of those transactions has possibilities of having 

very important information. I can't tell you with certainty 

what each of those transactions will yield as far as 

information, but I think that it's certainly reasonable that we 

be permitted to pursue what those transactions look like and 

what went into them. That's the purpose of our discovery with 

respect to the former assignee. The prosecuting attorneys is a 

similar situation. We've got lots of different folks that were 

involved in the prosecution. And so we're interested in taking 

discovery from those folks. And then the inventors, there 

are -- there's a patent that incorporates what the '888 patent, 

which is one of the 12 cases, incorporates by reference another 

patent, and that patent has a number of inventors, and those 

inventors clearly invented subject matter very, very similar to 

that which is disclosed and claimed in the '888 patent. And so 

it is absolutely targeted. We're not taking discovery or 

seeking to take discovery of every inventor of every patent 

that's incorporated by reference by any means. It's one very 

narrow focused set of inventors that we believe that discovery 

is likely to yield something important here. And so from our 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 7 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:40

01:40

01:40

01:40

01:40

01:40

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:41

01:42

01:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

8

perspective, it's reasonable, it's targeted, it's related to 

the lawsuit, and what we are asking for is just the ability to 

start that process now rather than waiting until May. 

THE COURT: Anyone else for any of the defendants? 

MR. ROSENTHAL: I'm certainly happy to have anybody else 

speak, but I intended to speak on behalf of both VMware and 

Dell. 

THE COURT: Okay. Very good. 

I'll hear from -- any response from the plaintiff, and 

including in that response, if I could hear an explanation or 

representation of how the additional efforts, if any, by the 

defendants to get this stuff started will cause additional 

burden on behalf of the plaintiff at this time that wouldn't be 

fair. 

MR. ETHERIDGE: Well, a couple of things, Your Honor. 

One, again, we're not arguing about the inventors. Quite a bit 

of time that Mr. Rosenthal just spent was talking about 

inventors. That's a given. And also entities that actually 

own the patents. We're talking about is every single 

prosecuting attorney whose name happens to appear on a 

prosecution, and that is also discovery from persons that just 

sign a document in the chain of title separate from the actual 

entity. And then the last one is just discovery from entity 

names that happen to appear in the chain of title that aren't 

even signatories. So I guess what I'm saying is I think as 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 8 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:43

01:43

01:43

01:43

01:43

01:43

01:43

01:43

01:43

01:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

9

this stuff comes up, we're going to get into discovery disputes 

pre-Markman. A lot of this stuff is going to be privileged, 

attorney work product -- 

(Clarification by the reporter.) 

MR. ETHERIDGE: I think we're going to get into taking up 

the Court's time with motions to quash and disputes about 

whether or not something is attorney/client privilege from a 

prosecuting attorney, and I don't think we need to get into 

those issues until after Markman. 

THE COURT: Well, I don't think -- and maybe I'm missing 

it. I'm just being dense maybe. I don't think the defendants 

are asking to take any of this discovery now. They're simply 

trying to get it arranged so that it may commence as quickly as 

possible. And if I'm misunderstanding it, please let me know.

MR. ETHERIDGE: Well, a great part of this discovery is in 

Canada. I've never had any problem getting discovery in 

Canada, and I guess the practical question is, let's say that 

you -- the right to a particular prosecuting firm who's willing 

to send them something, are we then putting our hand up and 

saying that's okay. Don't send it until after Markman? What's 

going to stop these people from engaging in letter writing back 

and forth and we will get into discovery de facto, and the only 

reason this is happening because of kind of the foreign 

exception that you have in your court, and I understand that 

and we understood your struggles with, you know, Chinese source 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 9 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:43

01:43

01:43

01:43

01:43

01:43

01:43

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:44

01:45

01:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

10

code and such, but that's just not the situation here. And I 

guess I'm seeking a little bit more understanding of what that 

means there will be no discovery until after Markman. This is 

just writing a letter or a subpoena to somebody in Canada. 

Will they be informed -- must they be informed, you do not have 

to comply with this until after Markman, or how does that 

process -- I don't understand how you -- how we say the process 

starts now, but there is no discovery until after Markman. 

MR. ROSENTHAL: Your Honor, may I address that? It's 

Brian Rosenthal. 

THE COURT: Of course. 

MR. ROSENTHAL: I think it's the same answer to that 

question as is the answer with respect to assignees and 

inventors. We're talking about a process question here. And 

the process is the same, and we're not just dealing with 

Canada. We're dealing with the Netherlands and Germany and 

Finland, France. There's a lot of different countries. These 

patents came from a lot of different places. 

But as far as what is a mechanism that we use to ensure 

that the discovery is not taken in advance, that's just 

communication. And, by the way, Canada is not quick right now. 

We understand from other matters that things are moving very 

slowly due to COVID. And I don't expect that that's going to 

be an easy process. But the simple answer, we'll just tell 

every one of these folks, including the inventors and the 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 10 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:45

01:45

01:45

01:45

01:45

01:45

01:45

01:45

01:45

01:45

01:46

01:46

01:46

01:46

01:46

01:46

01:46

01:46

01:46

01:46

01:47

01:47

01:47

01:47

01:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

11

assignees and these other categories of people that have 

relevant information that we would like for them to produce the 

requested information after April 29th or after April 30th. 

THE COURT: Let me interrupt for a second. So it seems to 

me that plaintiff has two choices here. And I may be 

deferential to them with what -- so it seems to me that 

probably what the plaintiff cares a great deal about is me 

setting these cases for trial and keeping them on track to get 

them tried. And my sense is that what the defendants are 

attempting to do is to get things lined up so that when Markman 

takes place and the balloons go up and discovery can commence, 

it can commence quickly. It seems to me that if I restrict 

what the defendants want to do in terms of what I'll call that 

preliminary gating or preparing for discovery to commence 

quickly, it seems to me that if the plaintiffs want me to have 

the defendants hold off on that, then the risk should be that 

if we delay doing that and we then encounter problems -- the 

defendants encounter problems getting discovery that I were to 

determine they're entitled to that that would -- that might 

require me to extend the period of discovery and push back the 

trial. So when I say I want to be somewhat deferential to the 

plaintiff here, I don't mean to sound biased. I try and keep 

everything as even as possible, but it seems to me -- it seems 

to me -- well, it absolutely is correct that defendants are 

going to be allowed to do discovery that I think is

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 11 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:47

01:47

01:47

01:47

01:47

01:47

01:47

01:47

01:47

01:47

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

01:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

12

appropriate, and I will tell you that it sounded to me like 

there was some of the discovery that they're seeking -- the 

defendants are seeking that might not require a witness. I 

mean, there might be more efficient ways of doing it, but, you 

know, I don't know that we have any way of knowing that. I can 

tell you on the record that I have personally on this side of 

the bench encountered issues specifically as -- I think it was 

Mr. Rosenthal said specifically with -- dealing with witnesses 

from Canada. That really is a problem. It's a problem for 

Americans to be allowed to go there. It's a problem for them 

to be allowed to come here. So let me turn this over to -- let 

me -- I do -- it did sound to me like there was a lot of 

discovery there that might be done more efficiently but that we 

don't know at this time whether that will be possible or not. 

So let me hear from the plaintiff with respect to -- I will 

give you some of the reigns at this time about how you want me 

to restrict what the defendants are allowed to do with the 

understanding that if -- if we -- if I don't allow them to do 

it now and they need to do the discovery later and it will take 

them longer to do it than what we'd originally envisioned under 

the discovery order, then that's when we might take care of it. 

So what are your thoughts on that? 

MR. ETHERIDGE: Well, a couple of things there, and you're 

right. We do not want to delay the trial. But a couple of 

thoughts there, and I had brought it up before. For example, 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 12 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:49

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

13

if they send a -- let's think about the mechanics there. If 

they send us to Fina to a firm who says, fine. We'll comply. 

We're going to send you all our files. What's the mechanics 

that we have at that point? Do we -- how do we object? Do we 

file motions to -- I mean, do we file motions to quash and -- 

and if we even know about the correspondence, right? I had 

brought that up last week. Our experience in the past is it's 

very important -- this is about obtaining discovery that's 

going to be in the case and both sides should do that. We 

should not be forced to run this -- to issue the same subpoenas 

ourselves, and -- and I -- so that we know what it is that's 

going to be produced and when. I guess part of that could be 

that maybe we -- it's teed up and it's ready to go, but we know 

what those things are and then we be given, say, a two- or 

three-week period after Markman to file our objections, our 

motions to quash. Something like that would put it on -- 

square on the footing of the other -- that would put it square 

on the footing of the other domestic discovery if you want to 

call it that. Otherwise, I'm just concerned that some of 

these -- some of this information might get turned over and we 

have to deal with it. I mean, my understanding of no discovery 

had to do with not entangling the parties in unnecessary costs 

and delay prior to the Markman. And it seems like we've just 

kind of stepped right back in it here. And I'm just looking 

for what the mechanics are and not wanting to take up the 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 13 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:51

01:52

01:52

01:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

14

Court's time over discovery disputes before they need to be. I 

guess if you say that you're giving us the reigns, maybe what 

the answer there is that it's made clear in these subpoenas 

that discovery -- that the production is not to happen until 

two to three weeks after Markman, and that gives us an 

opportunity to object and that also we're just copied on the 

correspondence so we know what it is that's going to be 

produced. Or else we would have to file motions to quash on 

many, many subpoenas just being overbroad, but if we knew what 

it was that was going to be produced, we can meet and confer 

and narrow it and get an understanding of what that is. That's 

some of the ideas. I'm trying to work through the mechanics. 

THE COURT: Is it something that you think -- and I'll ask 

both sides this. It sounds to me like that's something maybe 

you could sit down and come to an agreement with defense 

counsel as to how they will react in those situations, and it 

seems to me that if, for example, the -- well, let me hear from 

Mr. Rosenthal. My sense of what you're sending out is a 

subpoena now, but I guess the plaintiff is correct that if you 

send out -- I'm making up a number, a hundred subpoenas that 

unless he cross-subpoenas immediately or unless he objects 

immediately, then he might have waived his right to do so, and 

I -- and I will tell you that that is one of the things that I 

do try to avoid in discovery taking place before the Markman. 

I'm very sympathetic to the defendants' concern about getting 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 14 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:52

01:52

01:52

01:52

01:52

01:52

01:52

01:52

01:52

01:52

01:52

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

15

the discovery it needs from foreign folks, but I don't want 

that kind of preliminary getting ready to go to eat up the rule 

and to require the plaintiff to spend as much time on this 

discovery now as they would if it happened later. Mr. 

Rosenthal, do you have a resolution for that? 

MR. ROSENTHAL: Yes, Your Honor. I think that -- first of 

all, I think that the parties can work this out. I mean, we 

have a very simple goal, but it's not at all intentioned with 

the goals of the rule or the goals that Mr. Etheridge talked 

about. Our goal is that we don't get stuck trying to take what 

we think is relevant, important discovery from foreign sources 

with not enough time to do it. And our goal is advanced by 

allowing us to proceed now with the preliminary steps that need 

to be taken in order for that discovery to have a chance of 

coming in during the discovery window. We are absolutely fine 

setting a date for production of any information, witnesses, 

documents for sometime after the hearing, and if it helps to 

have a buffer -- 

(Clarification by the reporter.) 

MR. ROSENTHAL: We are very happy and only anticipated 

setting a date for production of any information, whether it's 

documents or witnesses, for after the Markman hearing, and 

we're happy to build in a buffer of a week or two or whatever 

it is that we agree with plaintiffs is appropriate so that they 

have an opportunity, and we also agree that their failure to 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 15 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:54

01:55

01:55

01:55

01:55

01:55

01:55

01:55

01:55

01:55

01:55

01:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

16

raise any motion practice or objections prior to the Markman 

hearing will not constitute a waiver for those objections as 

long as they're made promptly thereafter and we can set some 

kind of a time line so that there's no surprises. 

So I actually think that that's a fine solution. It gives 

us what we need, which is the runway that is necessary, as 

everyone knows, to get discovery from foreign sources. And it 

serves the goal of not burdening the Court and the parties with 

discovery disputes before the Markman hearing. We never 

anticipated that we would be doing that. Our goal is simply to 

get the process started as it would be with assignees and 

inventors with respect to these other areas. 

THE COURT: Let me hear from plaintiff's counsel. What -- 

assuming we build a buffer in here that would allow you to both 

cross-subpoena, if you decided to wait until after the Markman 

and to file your objections, does that satisfy you? 

MR. ETHERIDGE: Yeah. It does. And there's actually more 

than just the parties, right, involved here. There's these 

third parties. For example, if a law firm or a lawyer, because 

they're actually talking about subpoenaing individuals, is 

subpoenaed and he believes his information's attorney/client 

privilege, you know, what's the mechanism for him to object or 

file his motion to quash? And I think what we'd have to do is 

in all the notices to these people to tell them that they have 

until whatever the date of the Markman is but some time period 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 16 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:55

01:55

01:55

01:55

01:55

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:56

01:57

01:57

01:57

01:57

01:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

17

after that to file their motions and that we anticipate 

production being made, you know, whatever it is, 21 days after 

that. I think that that would probably work, and then we -- 

we'd just need to make sure that we're copied on the 

communications so that we know who -- and I don't just mean the 

subpoena because often what we've seen before is there's a 

whole litany of communications back and forth narrowing the 

scope, saying, produce this, don't produce that, and then when 

we get the production, we have no idea. Is this totally 

responsive to the subpoena, or is this something that was 

negotiated? And historically we've had to move to compel those 

communications and they have been compelled. Often they 

come -- to your point, they come late in the game and they can 

cause delay because things are missing, but I do think we can 

work with them on these dates. It sounds like they're willing 

to do that and happy to give that a shot together. 

THE COURT: Well, I feel a little bit like Dr. Phil. 

We've gotten together and we talked this through and we all 

feel warm towards each other and we'll be able to make this 

work. So I'll tell you what. Why don't we break now? You 

all -- while we're in a happy mood -- and see if you all can 

come up with sort of a structure for all that to take place. 

Again, if you can't, if you come across something that you both 

think it's willing to, you know, go up the hill and die for 

because it's to support your client, then I am sympathetic to 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 17 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:59

01:59

01:59

01:59

01:59

01:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

18

that. I had clients for a lot of years and I'll be happy to 

reset the hearing on very short notice because it won't last 

very long. But you all get together. I think my general 

thoughts are I definitely want to give the defendant every 

opportunity now to contact the folks that they need to contact 

and essentially allow those people to know that discovery is 

going to be initiated. That being said, I don't want -- I 

don't want either party to be over burdened by actually 

conducting discovery during the phase that I think should be 

dedicated to handling the Markman issues. But I'm always 

going -- to be clear, I think I've got lawyers on both sides of 

this case who know me intimately. I am always available to try 

and resolve any differences that you all might have and, you 

know, to make this work out, but that's for both sides. I 

think it certainly works well to let -- I'll make up a name. 

You know, it could be -- I'll just make up a name -- Microsoft 

Japan. If -- you know, let them know now what's coming. That 

will give them an opportunity to get any concern they might 

have about any attorney/client issues squared away. I'll allow 

the plaintiff to decide after the Markman which folks he wants 

to cross-subpoena, but I can't imagine there would be so much 

stuff the plaintiff would want that it would overly burden any 

third party. My guess would be it might just be filling in a 

couple things and at least be -- in fact, let me add one thing 

I think the defendants ought to put in whatever they send, 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 18 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

01:59

01:59

01:59

01:59

01:59

01:59

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

02:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

19

which is that after May or whatever the date is you all decide 

the exact date, you might let them know that they might be 

getting a cross-subpoena that will ask them for some additional 

documents, not many, that will probably be relevant to issues 

that are involved in this litigation. That way -- 

MR. ROSENTHAL: Makes sense to us, Your Honor. 

THE COURT: And so does that work at least for the moment 

for everyone and with the understanding that if after you talk 

you're absolutely welcome to let me know that there are some 

issues you need to work out and we'll -- I'll keep massaging 

this until we get it done? 

MR. ETHERIDGE: That works for plaintiff, Your Honor. 

MR. ROSENTHAL: And for defendants. Thank you, Your 

Honor. 

THE COURT: There you go. Another successful therapy 

session in a half hour. So if only I could charge what Dr. 

Phil charges. 

So I hope you all have a wonderful day. Be safe out 

there. 

MR. SIEGMUND: Judge Albright. 

THE COURT: Yes, sir.

MR. SIEGMUND: This is Mark Siegmund. Not to break up the 

happy Dr. Phil session, but I think we might have had one more 

I think a relatively smaller issue to bring up with you if 

that's okay. 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 19 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:00

02:00

02:00

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:01

02:02

02:02

02:02

02:02

02:02

02:02

02:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

20

THE COURT: That will break up the Dr. Phil session, but I 

guess we've got to go ahead and take it anyway. 

MR. SIEGMUND: Yes, sir, Your Honor. So I believe Mr. 

Shelton brought this up in an e-mail to Hannah I think he sent 

yesterday about whether there are deficient amended -- we filed 

an amended complaint, and there are currently a -- there was a 

pending motion to dismiss in each of the filed cases. We filed 

an amended complaint I believe this past Monday. So we believe 

that the amended complaints are moot, and I cited the Court 

some case law in the e-mail I sent earlier, and if you want, I 

can share that with you, but I think Your Honor's aware of 

that. And so we think that this issue really is not even ripe 

to bring up to your attention. We haven't met and conferred on 

Dell's allegations of our deficient amended complaints. We 

haven't really met and conferred with them at all about that 

particular issue. So we don't really think it's ripe for the 

Court's review right now, but I wanted to bring that to your 

attention in case you wanted to take that up right now. 

THE COURT: Mr. Shelton, have you filed a motion to

dismiss with respect to the amended complaints? 

MR. SHELTON: Your Honor, this is Barry Shelton. Not yet. 

We will be amending the motions that had been filed before and 

refiling. And the issue that we wanted to bring to the Court's 

attention or make a request is that the Court set an expedited 

motion hearing on these motions to dismiss. I think the Court 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 20 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:02

02:02

02:02

02:02

02:02

02:02

02:02

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:03

02:04

02:04

02:04

02:04

02:04

02:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

21

probably remembers vividly the -- I believe it was the first 

time that you set I think eight cases or so, eight different 

cases that had pending motions to dismiss on January 31st. 

Let's just call that the De La Vega hearing. And that will go 

down in infamy in the Western District. And the reason why we 

wanted to bring this up is that the motions to dismiss, all 12 

of them that were filed in these cases, really are of the same 

merit in strength as the motion that was filed in the De La 

Vega case by Microsoft. And I think it was quite beneficial 

that Your Honor held, you know, a fairly early hearing on not 

just that -- that motion but the other I think it was seven 

cases back in January and we wanted to make that same request 

here. I know from my other cases that the Court has a growing 

stock of pending motions to dismiss, and we think that these 

cases would benefit greatly from the Court's expediting a 

motion hearing, and then that's all that we wanted to bring up. 

THE COURT: When you bring up the De La Vega case, is the 

concern writ large of your motions to dismiss that the 

plaintiff has not adequately tracked the claim elements as they 

did -- they failed to in that case in their pleading -- in 

their complaint and it's something you can specifically 

identify what's missing? Is it that type of motion? 

MR. ROSENTHAL: Your Honor, it's Brian Rosenthal. Perhaps 

I can speak to that. The answer is yes. It's more than a 

technical failing, and I don't want to argue the motion, but 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 21 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:04

02:04

02:04

02:04

02:04

02:04

02:04

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:05

02:06

02:06

02:06

02:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

22

the basic premise of the motion, there's -- the motions deal 

with both direct infringement allegations and indirect. The 

indirect allegations, they're just missing, you know, presuit 

knowledge. But with respect to the direct allegations, it is 

exactly that. The complaints, not all of them, but the ones 

that we moved on that issue, the complaints are just missing 

any allegation that in any way matches up with some of the key 

limitations. And we pointed this out to the plaintiff in a 

letter and we pointed it out in our original motion to dismiss 

on these patents, and then the amended complaints just changed 

a couple of words here or there or added a -- you know, a 

website printout but by and large didn't address that issue at 

all. And so these are motions in which there are elements that 

are simply totally missing from any evidence and in many cases 

the evidence that they do cite that they do rely on states even 

sometimes in the quotation that it doesn't do it in the manner 

claimed. So it's those sorts of arguments that are raised by 

these motions. 

THE COURT: And when do you -- Mr. Shelton or Mr. 

Rosenthal, when do you intend -- when do you anticipate filing 

the motion to dismiss by? 

MR. ROSENTHAL: So this is Brian Rosenthal again. I 

expect the amended complaints were filed on Monday. I think we 

technically have two weeks, but I expect we'll be filing them 

next week. They're going to be very similar to the original 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 22 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

23

motions. Obviously we have to take into account the couple of 

small changes that were made. 

THE COURT: So -- oh, if someone's going to speak, please 

go ahead.

MR. SIEGMUND: Your Honor, I was just going to say I think 

they pretty much came out and said that their original motions 

are moot, and we are happy to respond and have a hearing on 

this issue. We just haven't had a chance to digest the letters 

that they sent to us. Like I said, they did file -- they did 

send us original letter on September 30th which led us to 

actually file our amended complaint. We disagree obviously 

that there were any issues, but we went ahead and took the 

conservative approach, amended our complaint. They sent us two 

new letters last night after working hours and this morning. 

So we really haven't had any time to digest those particular 

letters or any of those issues. So we think that their current 

motions are moot, and like -- it sounds like they are going to 

refile a motion to dismiss, and that's fine, and we'll respond 

in time, and then if the Court deems that a hearing's 

necessary, we obviously are more than happy to take that up, 

but I don't -- I don't think that this is a De La Vega issue 

because I was also a little bit involved in that as well, and I 

don't think these complaints are anywhere near the disaster 

that I think we can all agree that the De La Vega issue brought 

up. 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 23 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:07

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:09

02:09

02:09

02:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

24

THE COURT: Well, it wasn't a disaster for the defendants 

in that case. 

(Laughter.) 

MR. SHELTON: It was not, Your Honor.

MR. SIEGMUND: It was not. That is true, Your Honor. 

THE COURT: Well, here's where I'm at. I think y'all are 

missing each other a little bit in that if the question is do I 

find that the motions to dismiss -- current motions to dismiss 

are moot, the answer is -- if the plaintiff has filed amended 

complaints, then yes. I'm not going to take the time -- I will 

tell you now they're all denied. I'm not going to take up 

motions on -- in a complaint that is no longer the live 

complaint. However, I appreciate being alerted to the fact 

that there may be a motion to dismiss that is a gating motion. 

So I will put the burden on Mr. Shelton, and when the case is 

ripe, meaning all the back and forth between the parties has 

taken place, if you'll just let whoever it is that's handling 

this case, you know, know, we'll set it for a hearing 

relatively quickly, and by relatively quickly I mean within a 

couple of weeks, and I'll take it up and I will resolve it. So 

good heads up. I'm going to find that -- I'm going to find the 

current motions to dismiss are moot, but I'm also denying them 

without prejudice to the refiling of new motions to dismiss. 

Is there anything else we need to take up? 

MR. ROSENTHAL: Your Honor, I'm sorry. Your Honor, it's 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 24 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:09

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

02:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

25

Brian Rosenthal. That makes sense. I only have just a 

housekeeping issue to raise which is more by way of question 

and a little bit informative. I think the parties are zeroing 

in on a way to handle these 12 cases by grouping them into 

buckets which I understand is similar to how it's been done in 

some of the other cases by plaintiff. So I'm fully optimistic 

that we're going to get agreement on what those buckets will 

look like and we'll have those for Your Honor in the scheduling 

order that we propose. 

The question that I have is on the scheduling order

itself, I assume that what you're interested in is a proposed 

schedule that goes through Markman and that you'll deal with 

scheduling the rest of the case at that time, but just wanted 

to get clarity on that because I know that -- I certainly 

understand from some past cases that that's what you're looking 

for but just wanted to get some clarity. 

THE COURT: Well, my recollection, and, you know, maybe 

Mark Siegmund can correct me as a former clerk or Barry Shelton 

can because he has so many cases or maybe I'll go grab Josh, 

but my recollection is that we -- for Markman purposes we tend 

to do all the patents at once. Did I say something different 

in this case that we were going to split them up? I may have. 

I just don't remember.

MR. SIEGMUND: Your Honor, in this case because there are 

so many, we actually have two days for Markman and hence why 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 25 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:10

02:10

02:10

02:10

02:10

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:11

02:12

02:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

26

we're breaking them into buckets. So, for example, if we're 

going to take Bucket 1 on Day Morning 1, we can do that. That 

was our plan for you. 

THE COURT: But I was assuming the two days would be -- I 

mean, I knew that we had set aside two days. Did we decide 

that it was best to have a Friday for Bucket 1 or six and then 

wait and give more time for the second ones, or were we 

planning to do them -- all of them but it was to be over two 

days? I can't remember.

MR. SIEGMUND: Your Honor -- I'm sorry if I'm interrupting 

somebody. 

(Simultaneous conversation.) 

MR. ETHERIDGE: I just checked. Those dates are 

April 29th and April 30th. So they're on a Thursday, Friday. 

And what remains is the Court has reserved those dates for us, 

and what remains is for the parties to decide the best way to 

present the issues to the Court and you can either call them 

buckets. I prefer -- I always think of bad things in buckets 

so I just prefer groupings. But that is the plan that we're 

working on. 

I guess I don't see there's any reason to stop at the 

Markman. I think the Court will issue a trial date. I think 

we should do the rest of the schedule. If something comes up 

that requires that to be modified, the parties are free to ask 

the Court to modify them. 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 26 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

27

THE COURT: Well, let me make clear. It is very 

unlikely -- this is the reason I asked the last question. It 

is very unlikely we would go to trial on 12 patents. I -- you 

know, for example, I've got VLSI versus Intel which had a bunch 

of patents and we've broken that up at the insistence of the 

plaintiff into three, even though I would have probably been 

happy with just two trials, but unlikely we'll do 12 patents in 

one trial. That will probably be at least two trials. And 

that's probably another reason for breaking them up into 

buckets or groups. Just -- I could see having two groups of 

patents, say, all together, say six patents and doing it at 

once, and that would help me figure out how to do the trials.

MR. ETHERIDGE: Well, right, Your Honor. And we discussed 

this in the Microsoft case. And we agreed that the buckets or 

the groupings, if you will, are for Markman purposes only. 

There's not going to be 12 trials on one patent or one trial on 

12 patents. That's for sure. The problem is is until we get 

to Markman and even afterwards there may be patents that fall 

out because of 101 issues. There may patents that fall out on 

IPR issues, and we just had this similar situation up with 

Judge Payne, and, you know, maybe three or four months out the 

cases in effect were consolidated for purposes of discovery and 

things like that, but three or four months out he asked the 

parties, hey. Tell me how we're going to try these. At that 

time we had -- and, you know, we came up with -- I think it 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 27 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:13

02:13

02:13

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:15

02:15

02:15

02:15

02:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

28

ended up being six or seven patents across three trials, but I 

don't think we have that visibility until -- you know, it's an 

ongoing process. And so I encourage the Court, let's get our 

schedule. Let's work toward it and let's see what happens in 

the Markman. Some things may fall out. There may be some 101 

motions that take things out. I'm pretty sure there are going 

to be IPRs filed, and as the case moves forward, we can see 

what that trial's going to look like. 

THE COURT: Okay. 

MR. ROSENTHAL: Your Honor, this is Brian Rosenthal. I 

couldn't agree more that the -- it's very likely that we're 

going to have patents dropping out. I expect that some of them 

will drop out before Markman. But I totally agree with the 

spirit of what Jim is saying which is that the case is going to 

change the nature, you know, of the -- and the scope of the 

case won't really be clear until at least the Markman or 

sometime thereafter, and so our thinking was only that let's 

make sure that we have all of the dates leading up to Markman 

in stone. Let's, you know, work as much as we can to get 

everything ready so that we can hit the ground running with 

respect to discovery, but then the setting of the remainder of 

the schedule seems to make most sense once we come to that 

point when we have a better sense of what the scope of the case 

is. That was our only suggestion. 

THE COURT: Okay. I think we're back to our Dr. Phil 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 28 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

02:15

02:15

02:15

02:15

02:15

02:15

02:15

02:15

02:15

02:15

02:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

29

moment where everyone's happy. And I think we probably ought 

to adjourn at this time while we're all feeling good about 

ourselves and how we've done in the case. 

So putting that at risk, is there anything else from the 

plaintiff? 

MR. ROSENTHAL: Not from defendant.

MR. SIEGMUND: Not from the plaintiff, Your Honor. 

THE COURT: Okay. Thank you very much. Have a safe day, 

and I look forward to seeing at least some of you hopefully in 

the near future. Take care. Bye. 

(Hearing adjourned at 2:40 p.m.) 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 29 of 30
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

30

UNITED STATES DISTRICT COURT )

WESTERN DISTRICT OF TEXAS )

I, Kristie M. Davis, Official Court Reporter for the 

United States District Court, Western District of Texas, do 

certify that the foregoing is a correct transcript from the 

record of proceedings in the above-entitled matter.

I certify that the transcript fees and format comply with 

those prescribed by the Court and Judicial Conference of the 

United States.

Certified to by me this 2nd day of October 2020. 

 /s/ Kristie M. Davis

 KRISTIE M. DAVIS

Official Court Reporter

 800 Franklin Avenue

Waco, Texas 76701

 (254) 340-6114

kmdaviscsr@yahoo.com 

Case 6:20-cv-00473-ADA Document 37 Filed 11/02/20 Page 30 of 30