Exhibit 1

 

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07:34

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

608

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC *

DBA BRAZOS LICENSING * February 23, 2023

AND DEVELOPMENT *

*

VS. * CIVIL ACTION NOS.

*

DELL TECHNOLOGIES INC., * W-20-CV-480/481/486

DELL INC., EMC CORP *

AND VMWARE INC. *

BEFORE THE HONORABLE ALAN D ALBRIGHT

JURY TRIAL PROCEEDINGS

Volume 3 of 3

APPEARANCES:

For the Plaintiff: Jonathan K. Waldrop, Esq.

Marcus A. Barber, Esq.

John W. Downing, Esq.

Darcy L. Jones, Esq.

Heather S. Kim, Esq.

ThucMinh Nguyen, Esq.

Kasowitz Benson Torres, LLP

333 Twin Dolphin Drive, Suite 200

Redwood Shores, CA 94065

Hershy Stern, Esq.

Julianne Laporte, Esq.

Kasowitz Benson Torres LLP

1633 Broadway

New York, NY 10019

Paul G. Williams, Esq.

Kasowitz Benson Torres LLP

1349 West Peachtree Street, NW

Suite 1500

Atlanta, GA 30309

Gregory Phillip Love, Esq.

Steckler Wayne Cherry & Love PLLC

PO Box 948

Henderson, TX 75653

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07:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

609

Mark D. Siegmund, Esq.

Melissa Samano Ruiz, Esq.

Steckler Wayne Cherry & Love, PLLC

8416 Old McGregor Road

Waco, TX 76712

For the Defendant: Brian Rosenthal, Esq.

Benjamin Hershkowitz, Esq.

Gibson, Dunn & Crutcher LLP

200 Park Ave.

New York, NY 10166

Jaysen S. Chung, Esq.

Y. Ernest Hsin, Esq.

Gibson Dunn & Cruthcher LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105

Casey J. McCracken, Esq.

Nathaniel R. Scharn, Esq.

Emily M. Whitcher, Esq.

Gibson, Dunn & Crutcher LLP

3161 Michelson Drive

Irvine, CA 92612

Veronica Smith Moye, Esq.

Gibson, Dunn & Crutcher LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Barry K. Shelton, Esq.

Winston & Strawn LLP

2121 N. Pearl Street, Suite 900

Dallas, TX 75201

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)

679

it is now apparently.

And my only point of telling you all this

is when this witness appears, he'll be sworn just like

the other witnesses that you'll have in this case. The

fact that he is appearing remotely should not impact

your opinion about his credibility, just like the

witnesses who are here in person or who might appear by

deposition.

You are the judges. You assess the

credibility one way or the other of anything that he

says. Take it into consideration. But don't -- he is

of equal dignity appearing by Zoom as he would be here

live.

So we'll take about a ten-minute recess.

We'll get the Zoom set up and then we'll go on with

that.

THE BAILIFF: All rise.

(Jury exited the courtroom.)

THE COURT: You may be seated.

Are you able, Mr. Rosenthal, while

they're setting up, to make your motions?

MR. ROSENTHAL: Yes, Your Honor.

THE COURT: Okay.

MR. ROSENTHAL: So, Your Honor, we are

going to file, if we haven't already, but we are going

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

680

to file, momentarily, a paper version of the motion.

The motion that we're making is a Rule 50(a) motion and

it will include a number of different bases.

But I want to focus any oral argument on

really one basis that I think makes this a little bit

of a different case than an ordinary case. And that is

that the plaintiff in this case has not put on any

evidence with respect to several critical limitations

of the singular claim that is at issue in this case.

So as the Court is well aware, we're

dealing with one apparatus claim, Claim 13, and that

apparatus claim -- and I'm happy to put it up on the

screen, although I think you remember it.

THE COURT: Yeah.

MR. ROSENTHAL: It has two and only two

structural elements. There is a processor module and

there is a switching module coupled to the processing

module. I think it's called a processor module. I

misspoke.

And as you know, we had a rough go of it

with the direct testimony, but we have very, very

carefully reviewed the transcript. We have searched

for the word "processor module." We have searched for

the word "switching module." We have searched for the

word "coupled" to make sure that we're not

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

681

misunderstanding what was said.

But because Dr. McClellan did not have

certain opinions and explanations in his report, the

Court correctly excluded any testimony about certain

things that --

THE COURT: I remember.

MR. ROSENTHAL: You remember. And so --

it's hard to forget.

So here's the things that are missing.

There was no testimony about what the processor module

is in our device. All that was said was that we

receive traffic, and we do, you know, things with that

traffic. There was no testimony about what the

processor module is.

There was also no testimony about what

the switching module is. And the only thing, by the

way, in the expert report that he could have said is

that the switching module is the link scheduler.

There's one, e.g., switching module. That's what -- he

could have said that. He didn't. He didn't say

anything.

And he certainly didn't say anything

about whatever he thinks the processing module is and

whatever he thinks the switching module is being

coupled together.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

682

The only testimony that he gave that even

relates to those limitations was when counsel asked him

those leading questions and said, do you agree that

this limitation is met? Yes.

Do you agree that this limitation is met?

Yes.

Did you look at source code to confirm

that? Yes.

Did you look at documents? Yes.

And that's not testimony on which the

jury can base a conclusion of infringement.

So the other thing that I want to note

about that is these aren't just a couple of random

limitations.

As the Court is well aware, there was a

ex parte reexamination on this patent. Claim 1, which

is a method claim for doing the same thing, was

invalidated.

Claim 13 is an apparatus claim for doing

the same thing. It was held valid on the sole basis,

the examiner said, just because of these structural

limitations. They're not in the prior art.

So this is literally the only thing

holding this claim together. And the expert and WSOU

put on zero evidence of the only two limitations of

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

683

this structural claim.

So this is why I think we're in the rare.

And we understand the Court's practice is often to

reserve on these sorts of things. This is really one

of those cases where we ought not to be sending this

case to the jury. There's nothing for them to decide.

There's no evidence on which they could base a

conclusion of infringement.

The last point I want to make, Your

Honor, is on a different element of the claim. The

last element of the claim talks about processing the

packets such that packets that are destined for an

egress node that is congested or handled differently

with a different priority than packets that are sent to

a non-congested node.

Again, we looked really carefully at the

testimony last night because we have it so quickly.

And there was zero testimony other than, "yes. I think

that element is met," that showed how priorities are

changed.

The witness testified about how he

thought bandwidth was changed or that it is handled

differently, but never did he explain how the

priorities are changed. In fact, he testified that the

priority is set based on traffic type, which is exactly

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

684

how the product works.

But he never -- and look. If he had

said, but here's why I think that means changing the

priority, that's, you know, that's fine. He didn't.

He just didn't.

He -- and I understand that he was in a

difficult position because he hadn't offered those

opinions, but it's just not in the record.

And so, Your Honor, we move for judgment

under Rule 50(a) that there is no infringement. We

also have bases that are going to be addressed in the

papers, but I would really like just to focus on that

part.

THE COURT: And for the record, I think

it was raised through my law clerk, the issue that you

all -- the defendant has an issue on 101.

MR. ROSENTHAL: We do. You're right.

THE COURT: But on that, I'm going to

wait to decide that until -- setting aside what we're

going to do right now, I'm not going to take up the 101

right now. I'll take that up at the end of trial.

MR. ROSENTHAL: I figured as much. That

is in our papers. We also addressed -- just so you're

not surprised, we also addressed the standing because

our appellate folks believed that we ought to put that

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

722

between every endpoint, so it's collecting node

information.

And then he struck that -- that last part

of that answer was stricken as an objection by

Mr. Rosenthal, but I wanted to make sure the Court was

aware of that citation in the record as well.

THE COURT: Anything else, Mr. Rosenthal?

MR. ROSENTHAL: No, Your Honor.

(Off-the-record bench conference.)

THE COURT: The Court is going to grant

the motion for directed verdict.

The plaintiff will have an opportunity to

file a written response to the defendants' motion. You

all can do whatever normal back-and-forth pleading

there is, and then we will -- because we'll need to get

a written order up for it.

So that takes care of the case. I will

talk to the jury and let them know that we have

resolved the case.

And I thank you for being here.

(Hearing adjourned.)

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11:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

723

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 26th day of

February 2023.

/s/ Kristie M. Davis

KRISTIE M. DAVIS

Official Court Reporter

800 Franklin Avenue

Waco, Texas 76701

(254) 340-6114

kmdaviscsr@yahoo.com

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