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)

720

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

CADDO SYSTEMS, INC., *

511 TECHNOLOGIES, INC. *

* June 8, 2022

VS. *

* CIVIL ACTION NO. W-20-CV-245

*

MICROCHIP TECHNOLOGY *

INCORPORATED *

BEFORE THE HONORABLE ALAN D ALBRIGHT

TRIAL PROCEEDINGS

Volume 3 of 5

APPEARANCES:

For the Plaintiffs: Timothy Devlin, Esq.

Alex Chan, Esq.

Veronica McCarty, Esq.

James Lennon, Esq.

Devlin Law Firm, LLC

1526 Gilpin Avenue

Wilmington, DE 19806

For the Defendant: Travis Jensen, Esq.

Jason K. Yu, Esq.

Evan Brewer, Esq.

Orrick, Herrington & Sutcliffe LLP

1000 Marsh Road

Menlo Park, CA 94025-1015

Claudia Wilson Frost, Esq.

Orrick, Herrington & Sutcliffe LLP

609 Main, 40th Floor

Houston, TX 77002

Jeff Quilici, Esq.

Orrick, Herrington & Sutcliffe LLP

300 West 6th Street, Suite 1850

Austin, TX 78701

Darryl Adams, Esq.

Brian Banner, Esq.

Slayden Grubert Beard PLLC

401 Congress Ave., Ste. 1650

Austin, TX 78701

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 1 of 368
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

01:27

01:27

08:28

08:28

08:28

08:28

08:28

08:28

08:28

08:28

08:28

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

721

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.

(Hearing begins.)

THE BAILIFF: All rise.

THE COURT: Good morning, everyone. You

may be seated.

My understanding is there's an issue to

take up.

Mr. Adams?

MR. ADAMS: Your Honor, I think we have

one or several pieces of good news for you this

morning, Your Honor. You maybe could use some good

news on a -- is it Wednesday? I'm not even sure.

THE COURT: It's sort of like telling a

prisoner who's being beaten --

(Laughter.)

THE COURT: -- good news. We're going to

stop beating you in 15 minutes.

MR. ADAMS: There you go. And it's

probably a very good analogy, Your Honor.

THE COURT: Thank you so much for

stopping.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 2 of 368
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

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:29

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

722

(Laughter.)

MR. ADAMS: So, Your Honor, Microchip has

decided that it is not going to put on an invalidity

case. And so in consideration of the jurors and

Kristie, we are not going to read 17 substantially

similar claims into the record a second time.

So the beating is stopping, Your Honor.

At least with respect to 17 claims.

THE COURT: Listen. I feel badly now

about joking because what you just said brought a

little tear to my eye. And so it's -- which means

we'll finish more quickly as well. So that's a good

thing.

MR. ADAMS: That's correct, Your Honor.

And the second piece of good news, which

your clerk may have passed on, is we don't have any

evidentiary or demonstrative objections to address this

morning.

There is an issue that just came up about

an exhibit getting into evidence, and we're going to --

it just came up. We're going to meet and confer about

that. So possibly later in the day we'll try to iron

that out.

But for now you can bring the jury in, as

far as we're concerned, Your Honor.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 3 of 368
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

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:30

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

723

MR. DEVLIN: So on -- I totally agree

with everything we just heard.

On that piece of evidence coming in, we

will be resting our case after Mr. Blok. And so we

would just request that once we get that worked out,

we'd be able to then --

THE COURT: Sure.

MR. DEVLIN: -- insert that evidence by

motion.

There's another very small issue, Your

Honor, but it -- one of those things that I feel

obligated to raise.

This has to do with timekeeping. And

there's going to be a video that they're going to play

today of some deposition testimony. These videos are

cut and kind of prepared a couple days before. And --

THE COURT: Let me interrupt you to say

this.

MR. DEVLIN: Yeah.

THE COURT: My sense is if the

defendant -- you all are dropping your invalidity case?

Did I understand that correctly? Because I -- I don't

want to say it out loud because I'm afraid I

misunderstood you.

(Laughter.)

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 4 of 368
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

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:31

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

724

THE COURT: But if that's true, we are

going to substantially shorten the trial, correct?

MR. ADAMS: Correct, Your Honor.

THE COURT: If we are going to -- with

that being said, I'm -- you all should not be nearly as

worried about the time.

If your concern, Mr. Devlin, is timing,

you all have given me back probably four hours -- two

hours minimum, maybe more, without an invalidity case.

So we'll be fine in getting the case

finished.

MR. DEVLIN: Okay. Thank you, Your

Honor.

THE COURT: And so...

I don't know if y'all had the good

fortune to ever try anything in front of Paul Luckern,

who was an ITC judge, who was a legend. He was a

million years old when I was in front of him, and

he'd been on -- and he was cantankerous. He would get

angry at things, and he would give the lawyers a really

hard time.

But then realizing he was on the record,

he would finish after everything by saying, but I just

want the record to be clear, you're all doing a great

job. You're great lawyers. You're all doing a great

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 5 of 368
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

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:32

08:33

08:33

08:33

08:33

08:33

08:33

08:33

08:33

08:33

08:35

08:35

08:35

08:35

08:35

08:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

725

job, and I can't thank you enough.

And so he would be slamming the bench and

screaming at us, but he would -- on the record it would

say, but you're all doing a great job. And he was a

phenomenally great -- I think I had three or four

trials in front of him. He was just a phenomenal,

phenomenal ITC judge.

Well, that's great news. I'll go out.

If you -- are you all ready to go right now? Is your

witness ready to go? And we're going to take him up on

cross?

MR. DEVLIN: That's right, Your Honor.

MR. ADAMS: Yes, Your Honor. We're

prepared.

THE COURT: Then I'm just going to walk

back. If you'll bring him in, I'm just going to walk

back, line the jury up, and we'll come right back in.

THE BAILIFF: All rise.

(Recess taken.)

THE BAILIFF: All rise.

THE COURT: Please remain standing for

the jury.

(Jury entered the courtroom.)

THE COURT: Thank you. You may be

seated.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 6 of 368
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

08:35

08:35

08:35

08:35

08:35

08:35

08:35

08:35

08:35

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

08:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

726

Ladies and gentlemen of the jury, I don't

think I thanked you all yesterday for coming back as

robustly as I should have. So let me make up for that

this morning. Welcome back. And I look forward to the

third day of trial.

Counsel, if you wish to cross-examine

this gentleman.

CROSS-EXAMINATION

BY MR. BREWER:

Q. Good morning, Mr. Blok.

A. Good morning.

Q. First question today: You're being paid $520

an hour for your testimony; is that right?

A. I believe that's right.

Q. And in your role as a damages expert, you

assume that Microchip infringed these patents?

A. That's correct.

Q. But you have no competent opinion about

whether they actually infringed the patents, right?

A. I'm not offering any opinion on infringement.

Q. If there is no infringement, there's no

damages?

A. That's correct.

Q. The fact that Microchip later may call a

witness, or a damages expert I should say, to rebut

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 7 of 368
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

08:36

08:36

08:36

08:36

08:36

08:36

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

08:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

727

your testimony does not mean that Microchip believes

that it's infringed these patents, right?

A. I understand that.

Q. So your role as a damages expert is to attempt

to determine a reasonable royalty; is that fair?

A. That's fair.

Q. And a reasonable royalty must be closely tied

to the invention?

A. I would agree with that.

Q. When an accused product like microchip.com or

the Forum website has both patented and unpatented

features, Caddo only gets damages on the patented

features, right?

A. It gets damages on the use made of the

invention.

Q. And that's the patented features, right?

A. That's correct.

Q. And if a non-patented feature adds value to a

product or a website, you have to remove that from your

damages calculus?

A. You have to take that into consideration.

Q. When you say take that -- you -- is it

included?

A. Well, every case is different. And so if

you're talking about -- if there's a quantifiable

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 8 of 368
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

08:37

08:37

08:37

08:37

08:37

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:38

08:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

728

adjustment in every instance, then no, that's not

correct.

Q. But generally speaking, you don't get damages

on a non-patented feature; is that right?

A. I would say generally that's correct.

Q. And would you agree that it would be wrong to

calculate a reasonable royalty based on infringement

that's outside the United States?

A. I believe that's correct.

Q. That means that products sold outside the

United States shouldn't be counted for damages?

A. In some instances. It depends on where the

infringement takes place.

Q. And if the infringement is outside the United

States, there's no damages?

A. If the infringement is outside of the U.S.,

for my purposes that's correct.

Q. Okay. And it's the burden of the plaintiff to

prove any damages it seeks by a reasonable certainty;

is that right?

A. I believe that's correct.

Q. And a plaintiff can't get damages on

speculative -- they can't get -- let me say that again.

A plaintiff can't get speculative damages,

right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 9 of 368
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

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:39

08:40

08:40

08:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

729

A. For the most part, I would agree with that.

Q. Now, you talked a little yesterday with

Mr. Lennon about this hypothetical negotiation.

Do you recall that?

A. I do.

Q. And in this hypothetical negotiation, cards

are up, everybody knows what's going on, everyone has

full disclosure; is that accurate?

A. That's correct.

Q. And you consider at this hypothetical

negotiation what a patent owner would accept to grant a

license?

A. That's correct.

Q. And you also consider what Microchip would be

willing to pay to get the license?

A. That's correct.

Q. And unlike traditional arm's length

negotiation between, you know, unrelated parties

outside of this case -- outside of a case -- you assume

full disclosure in this hypothetical negotiation?

A. You assume that all parties have perfect

information, is the way I put it.

Q. So full disclosure here would include

knowledge of all of Caddo's licenses?

A. That's correct.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 10 of 368
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

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:40

08:41

08:41

08:41

08:41

08:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

730

Q. And it would include the value that Caddo

placed on its patents, right? 

A. That's correct. 

Q. So we're talking about these licenses. 

Just to be clear, at a high level, a license

gives permission for someone to use a patent; is that

right? 

A. I would agree with that. 

Q. And what a patent owner is willing to accept

in a license fee is a good indication of the value they

place on that patent; is that right? 

A. I would agree with that. In some instances. 

Yes. 

Q. We've heard a few times in this case already, 

I think, that Caddo had already licensed these patents

to several other companies before it sued Microchip, 

right? 

A. In regards to settlements of a litigation, 

that's correct. 

Q. And you went through those yesterday with

Mr. Lennon? 

A. I did. 

Q. You talked about a license that Caddo gave to

A. I did. 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 11 of 368
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

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:41

08:42

08:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

731

Q. A license that Caddo gave to 

A. That's correct. 

Q. 

A license that Caddo gave to

A. I did. 

Q. " however it's pronounced. 

And then a license that Caddo gave to 

A. That's correct. 

Q. And a license that Caddo gave to

A. That's correct. 

Q. And you concluded that only that

was relevant here, right? 

A. Based on the information I reviewed, that's 

correct. 

Q. And so when you calculated your damages for

this case, you only used the license; 

is that fair? 

A. To arrive at my royalty rate, that's correct. 

Q. Now, part of the reason for that is that you

say that the license is different from

those other licenses; is that right? 

A. It's the only license in the record that I've

seen that gives any indication of a royalty rate. 

Q. One of the reasons I think you gave yesterday

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 12 of 368
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

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:42

08:43

08:43

08:43

08:43

08:43

08:43

08:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

732

for distinguishing the license and all

those other licenses were these clauses denying

liability.

Do you recall that? 

A. I remember going through it. Not necessarily

distinguishing between -- as far as the liability

aspect, but we did go through several clauses. 

Q. And you went through these clauses that said, 

for example, denies liability, right? 

A. That is correct. 

Q. And the fact that, in your view, 

doesn't include that clause is relevant, right? 

A. No. I believe that also

denied liability. The issue goes to the assumption of

validity and infringement at the time of the

hypothetical negotiation.

And so as I stated before, the plaintiff would

be in a better bargaining position at the hypothetical

negotiation than an assumption -- or in a license that

was entered into where the parties are disputing

liability. 

Q. You didn't mention the no liability clause for

the license yesterday, did you? 

A. I don't remember if we discussed that one or

not. 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 13 of 368
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

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:43

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

733

Q. Let's take a look at the

license, because I think there's a few things about it

you didn't tell the jury yesterday. 

A. Okay. 

MR. BREWER: Mr. Thompson, can you please

pull up JTX-18, Page 1?

BY MR. BREWER:

Q. You see that there on the screen? 

A. I do. 

Q. This is the license, isn't it? 

A. Yes. It is. 

Q. And in that third clause there -- you see that

third "whereas" clause? 

A. I only see the first two. Okay. 

Q. Oh, sorry about that. 

A. I see it. 

Q. It says: Licensee has denied liability in the

litigation? 

A. That's correct. 

Q. That's the same clause that was in the

other -- 

A. That's one of the clauses that was in the

others. 

Q. Right. Right. Right. 

Now, the other reason you gave that the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 14 of 368
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

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:44

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

734

license is different and more probative

is that it contains a royalty rate, right? 

A. It provides an indication of how the

compensation was arrived at for this license. 

Q. A royalty rate and the extent of use, I think

is what you said? 

A. Well, that's correct. 

Q. And that, in your view, is damages in this

case, isn't it? 

A. Well, I think it's an important consideration

when trying to determine the royalty rate, that you

understand exactly how that lump-sum payment was

arrived at. 

Q. The royalty rate and the extent of use, so the

revenues, that is damages for infringement, right? 

That's your opinion? 

A. Well, I think that that is how the parties

arrived at the amount under the

agreement. Yes. 

Q. And then you took that and you applied it

here, right? 

A. I utilized the percent. That's correct. 

Q. That's really the linchpin of your analysis, 

isn't it, the percent from this license times

revenues? 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 15 of 368
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

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:45

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:46

08:47

08:47

08:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

735

A. I don't know if I would refer to it as the

linchpin, but it's a component of the formula that I

gave.

Q. There's another provision in here that I think

you left out yesterday.

MR. BREWER: Mr. Thompson, can you please

pull up Section 4.4 of this license?

BY MR. BREWER:

Q. Can you read that second sentence to yourself,

please, starting with "the parties agree."

That sentence says that this agreement does

not represent a payment of damages for infringement; is

that right?

A. That's correct.

Q. It says the foregoing -- that there's "no

representation made that the foregoing consideration

represents a payment of damages for the infringement

alleged in the litigation"?

A. I agree that that's what that says.

Q. And you're asking this jury to award Caddo

$30 million based on this agreement, and you left out

yesterday the fact, clear as day, this says it does not

represent the payment of damages for infringement?

A. Did we pull up this liability clause? No.

But this is a very different liability clause

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 16 of 368
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

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:47

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

736

than the ones that we identified yesterday.

Q. But it says it's not the payment for damages

of infringement. And you're saying we should just take

this license, this one license, ignore all the others,

and use this to calculate a $30 million royalty?

A. No. What I'm saying is, is that the best

evidence that we have in our record of a royalty rate

is the royalty rate that was agreed to by parties that

are similarly situated.

Q. Which they said was not representative of

payment of damages for infringement; is that right?

A. That's correct. But they did not say that

it's not representative of a reasonable royalty like

the other agreements do.

Q. Didn't you testify earlier that damages for

infringement is a reasonable royalty?

A. I think that I testified that damages for

infringement are a royalty.

Q. It's got to be reasonable, right?

A. That's correct.

MR. BREWER: Now, let's -- Mr. Thompson,

please turn back to Section 3.1.

BY MR. BREWER:

Q. Because I think you left something else out

important about this license.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 17 of 368
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

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:48

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

737

You pointed out the percent, but you didn't 

point out that paid Caddo for

this license; is that right? 

A. I would agree that they paid , but I 

believe that we showed this entire paragraph. 

Q. But you didn't note that they paid to

use these patents, did you? 

A. I don't remember if we specifically mentioned

the . 

Q. This license doesn't include any limitations

on the use of these patents, does it? 

A. It's limited to use by . 

Q. Right. But can use these

patents as much as it pleases; is that fair? 

A. Through the expiration date of the patent. 

That's correct. 

Q. And they paid for that -- for those rights, 

they paid right? 

A. That's correct. 

Q. Are you aware that

A. I am. 

Q. It's fair to say that is not a 

small company; is that right? 

A. Well, it depends. If you include their

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 18 of 368
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

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:49

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

738

affiliates, I would agree they're not a small company. 

Q. I mean, they bought WebMD for $2.8 billion. 

They must be a pretty big company, right? 

A. Well, like I said, I think that there's a 

difference between , the company, and

the affiliates that they purchased. 

So if you're referring to as a 

company, then they're relatively small. 

Q. You're telling me a small company can afford

to buy another company for $2.8 billion? 

A. Well, it depends on the affiliates, and that's 

what I'm saying. If you're including their affiliates, 

then I would agree with you. 

Q. At the end of the day, 

for these patents, correct? 

A. That's correct. 

Q. And you say Microchip owes 30 million, right? 

A. That's correct. 

Q. None of Caddo's fees for the licenses you

discussed yesterday come anywhere near 30 million, do

they? 

A. I would agree that they're not, you know, 

close to $30 million. 

Q. And I think you discussed four more licenses

yesterday. We talked about them a minute ago: 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 19 of 368
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

08:50

08:50

08:50

08:50

08:50

08:50

08:50

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

08:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

739

.

Does that sound right? 

A. That's correct. 

Q. And I didn't notice yesterday if you mentioned

how much each of those paid for these patents. 

A. I don't remember if we discussed that or not. 

Q. Why don't we take a quick look? 

MR. BREWER: Mr. Thompson, can you pull

up Joint Exhibit 17, please? 

And turn to Section -- well, let's look

at the first page. 

BY MR. BREWER: 

Q. This is the license, isn't it? See in that

first paragraph? 

A. That's correct. 

MR. BREWER: Can you turn to Section 3.1, 

please? 

BY MR. BREWER:

Q. The amount of payment there is ; is

that right? 

A. I see that. 

Q. So for these patents? 

A. That's correct. In the settlement. 

MR. BREWER: Can we please turn to

JTX-15, please? 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 20 of 368
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

08:51

08:51

08:51

08:51

08:51

08:51

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

08:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

740

BY MR. BREWER:

Q. Now, this is the license, correct? 

A. That's correct. 

MR. BREWER: Section 3.1, please. 

BY MR. BREWER:

Q. Amount of payment, 

Does that sound right? 

A. That's correct. 

MR. BREWER: JTX-16, please. 

BY MR. BREWER: 

Q. This is the 

, right? 

A. Yes. It is. 

MR. BREWER: Section 3.1, please. 

BY MR. BREWER:

Q. Amount of payment, , correct? 

A. That's correct. 

MR. BREWER: JTX-21, please. 

BY MR. BREWER:

Q. This is the license. 

Does that look right? 

A. Yes. It does. 

MR. BREWER: Now, can we turn to Section

1.1, please? 

BY MR. BREWER:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 21 of 368
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

08:52

08:52

08:52

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:53

08:54

08:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

741

Q. Payment correct? 

A. That's correct. 

Q. We'll turn back to the license in a 

minute, but that's, what, less than the

30 million that you say that Caddo owes -- that

Microchip owes Caddo? 

A. Approximately. 

Q. So what we have here is a record of Caddo

agreeing to license its patents in the real world for

much less than you say Caddo -- Microchip owes Caddo in

this case, correct? 

A. In the settlement of litigation, I would agree

with that. 

Q. I don't want to make you do the math, but if

you were to add up all those licenses, 

 

 

 

Q. For these patents? 

A. That's correct. 

Q. And Microchip owes $30 million. That's your

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 22 of 368
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

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:54

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

742

opinion, right?

A. Based on the hypothetical negotiation, that's

correct.

Q. Let's talk about the idea of apportionment.

You mentioned that in your report, but I don't think

you used that word yesterday. Apportionment means

really that in the hypothetical negotiation you have to

figure out what the patent adds and discard everything

else, right?

A. And I believe we talked about it in the form

of incremental value yesterday.

Q. Sure. And you'd agree that it's particularly

important to do this apportionment when the patents

relate to one of many features incorporated into a

website?

A. All cases are different, but I do believe

apportionment is important.

Q. Particularly where the patents relate to only

one of many features on a website?

A. I would agree that apportionment is important.

Q. And the contribution of the patents, Caddo's

patents, has to be considered relative to all the other

features and all the other functionalities provided by

Microchip, right?

A. They should be focused on the incremental

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 23 of 368
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

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:55

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

743

value provided by the patents.

Q. Are you agreeing with what I was saying? I'm

not sure.

A. Yes. But the way I discussed it yesterday was

based upon the incremental value.

Q. Fair.

So is it fair to say that your analysis must

only consider the benefits from the patents?

A. The benefits provided by the patents, yes. I

would agree.

Q. Now, no one in this case is claiming that the

patents are used in making Microchip's products, are

they?

A. I would agree with that.

Q. And your royalty analysis is based on the sale

of Microchip's products, correct?

A. It's based upon the use made of the website

and the sale of its products.

Q. But you don't have any damages based on the

use of a website. You have damages based on the sale

of products, correct?

A. That's the ultimate result of the use of the

website, based upon my understanding of the benefits.

Q. You'd agree that you can use the Microchip

website without buying anything, correct?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 24 of 368
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

08:56

08:56

08:56

08:56

08:56

08:56

08:56

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

744

A. I would agree with that.

Q. And you'd agree that there's a lot that goes

into making a semiconductor, wouldn't you?

A. I would agree with that.

Q. And that's what Microchip makes, right?

A. Amongst other products, but --

Q. Yeah. Amongst other products. That's right.

A. -- generally.

Q. So you'd agree that when you make a

semiconductor, there's design costs, right?

A. I would agree.

Q. There's manufacturing costs?

A. I would agree.

Q. Research costs?

A. Yes.

Q. Distribution costs?

A. Yes.

Q. Marketing costs?

A. Yes.

Q. Administrative costs?

A. Yes.

Q. And Microchip wants to make a profit on its

products, right?

A. Yes.

Q. They should make something, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 25 of 368
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

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:57

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

08:58

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

745

A. That's correct.

Q. It's not charity.

And so a reasonable royalty needs to be

focused on the incremental value the patents add.

That's what you said?

A. That's correct.

Q. If a patent incorporates some technology

that's licensed, you have to factor that out, right?

A. In some instances. Not all instances.

Q. Well, in the hypothetical negotiation, the

party's not going to pay for something that's already

licensed; is that right?

A. I would agree with that.

Q. You don't expect them to pay twice?

A. Again, every situation is different. So I

wouldn't expect a company to pay twice for the same

technology.

Q. You talked a little yesterday about foreign

sales. And we talked a little earlier today too. It's

your understanding that all the Microchip servers are

in the United States?

A. That's my understanding.

Q. So it doesn't matter if any of those sales are

to foreign customers for your analysis?

A. Again, it's my understanding that the active

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 26 of 368
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

08:58

08:58

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

08:59

09:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

746

infringement takes place in the U.S.

Q. But if you're wrong and, in fact, those

Microchip servers are not in the United States, they're

outside the United States, your opinion's wrong, isn't

it?

A. My royalty base would change, but I wouldn't

say my opinion is wrong.

Q. Your numbers would be wrong?

A. My numbers would have to change. The royalty

base would have to change. But my opinion of a royalty

rate in this matter would remain unchanged.

Q. But your numbers would be -- the numbers that

you showed us yesterday, if you're wrong about where

the servers are, those numbers are wrong. Those would

not represent a reasonable royalty in this case?

A. I would agree that the total damages would

change.

Q. Let's talk for a second about the Forum

website. You understand the purpose of that Forum

website is so that customers can talk to each other?

A. Amongst other things.

Q. The Forum website doesn't sell anything, does

it?

A. I'm not sure if it does, directly or not.

Q. Do you know if you can purchase anything on

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 27 of 368
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

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:00

09:01

09:01

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

747

the Forum website?

A. The Forum -- I'm sorry. I thought you were

saying foreign.

Q. I'm sorry.

A. Sorry. I don't believe that you can purchase

on the Forum website.

Q. It's a discussion board, you'd say; is that

fair?

A. That's correct. About Microchip products.

Q. And in your damages model, you've got this

$30 million, right?

A. That's correct.

Q. Only the Forum is accused from 2014 to 2018;

is that right?

A. That's my understanding.

Q. So if you break down your 30 million, is it

fair to say that about 17 million is attributable to

the Forum during 2014 to 2018?

A. I don't know the exact number, but it would be

approximately half.

Q. Okay. Let me ask you a few questions about

noninfringing alternatives.

A noninfringing alternative is a, like,

substitute technology that the accused infringer, at

the hypothetical negotiation, could have used, and in

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 28 of 368
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

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:01

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

748

so doing would not have infringed, right?

A. And provide the same or similar benefits to

that of the patents-in-suit. That's correct.

Q. And so the existence of a noninfringing

alternative affects the willingness of the accused

company to pay for a license, right?

A. I think that it's a factor that would be

considered at the hypothetical negotiation.

Q. Right. And what this really means is that if

the accused infringer can switch to some other

alternative that doesn't infringe, they're not going to

pay very much for these patents?

A. I'm not sure that you can generalize like

that. It depends upon the availability of that

alternative. It depends on the cost of that

alternative. So there's a lot of factors that goes

into that noninfringing alternative analysis.

Q. Sure. That's fair.

But if you've got an available alternative,

say it's, you know, $1,000 a year, and Microchip could

switch to that, that would affect what they're going to

be willing to pay, right?

A. I would agree with that.

Q. In determining damages, in your opinion, you

assumed there were no noninfringing alternatives?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 29 of 368
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

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:02

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

749

A. Based upon my conversations with Mr. Sherwood,

I understand that there are no noninfringing

alternatives that would be acceptable that would

provide the same benefits.

Q. But you have no independent opinion?

A. I do not offer an independent opinion. That's

correct.

Q. So you just relied on Mr. Sherwood?

A. That's correct.

Q. Okay. And your damages opinion would change

if Mr. Sherwood's wrong, wouldn't it?

A. As I sit here today, I don't know if it would

or not. Again, it depends upon the availability of

those noninfringing alternatives and how much it would

cost Microchip to switch to those alternatives.

Q. Right. But Mr. Sherwood told you that they

don't exist, so you didn't -- that didn't go into your

calculus?

A. That's correct.

Q. But if he's wrong and they do exist, your

calculus isn't right?

A. Well, again, it may or may not be. I don't

know. It depends upon --

Q. You don't know?

A. -- how much it costs to implement those

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 30 of 368
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

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:03

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

09:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

750

alternatives.

Q. You're aware that Mr. Tittel -- you haven't

heard from -- the jury hasn't heard from him yet. But

you're aware that, in this case, Mr. Tittel, who's

Microchip's technical expert, disagrees with

Mr. Sherwood about noninfringing alternatives?

A. I understand that.

Q. Do you recall that one of those noninfringing

alternatives that Mr. Tittel opines about is the

redesigned microchip.com website?

A. I believe that's correct.

Q. You were here for Mr. Sherwood's testimony

yesterday?

A. Yes. I was.

Q. And you recall that he put up -- I'm sure

everyone recalls -- a chart with two columns and some

checkmarks?

A. I do.

Q. One of those columns was the Forum website,

and one of those columns was the old website; is that

right?

A. That's correct.

Q. He didn't have a column on there for the

redesigned website, right?

A. Not that I remember.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 31 of 368
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

09:04

09:04

09:04

09:04

09:04

09:04

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

09:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

751

Q. Let me turn back just for a moment to that

timeline we were talking about. From 2014 to 2018,

only the Forum website's accused, correct?

A. That's correct.

Q. And given the fact that you've told the jury

that Microchip owes Caddo $30 million, it's fair to say

that you think that these patents are pretty valuable?

A. Based upon my understanding of the benefits

provided by the patents-in-suit, that's correct.

Q. They provide a lot of benefits.

A. I'm sorry.

Q. They provide a lot of benefits. I'm sorry, I

interrupted you.

A. Yes.

Q. You listed them out on your slide?

A. Yes.

Q. Microchip Direct. We talked about -- a little

bit about that. Everyone's talked a little bit about

that. That's the e-commerce website, correct?

A. I think that's the actual portal to check out.

Yes.

Q. That's where you buy Microchip products?

A. That's where you actually complete a sale.

That's correct.

Q. The Microchip Direct website has never been

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 32 of 368
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

09:05

09:05

09:05

09:05

09:05

09:05

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:06

09:07

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

752

accused; is that right? 

A. That's my understanding. 

Q. That doesn't have this Active Path; is that

right? 

A. That's my understanding. 

Q. So Microchip had, in plaintiffs' view, this

valuable technology back in 2014, correct? 

A. That's correct. 

Q. And they never put it on their e-commerce

website. That's also correct? 

A. Are you referring to Microchip Direct? 

Q. Correct. 

A. That's correct. 

Q. We mentioned earlier that your $30 million

damages figure is about

 -- the total of what Caddo's been paid for these

patents from other companies; is that right? 

A. I think you limited it to certain licenses

that we've discussed today. I think that they've

collected more than you've mentioned. 

So I wouldn't say it's 

 that accurate? 

A. Somewhere in there. 

Q. And you agreed earlier that if you add up the

licenses that you considered: 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 33 of 368
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

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:07

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

753

 

A. That sounds about right. 

Q. Your reasonable royalty is built on two key

facts: 5 percent and the $215,000 a day; is that fair? 

A. That's correct. 

Q. If the jury were to determine that your use of

that $215,000-a-day figure was unreliable, that would

mean that your damages model is unreliable, right? 

A. I think that the jury, if they ultimately

decide that the royalty base is not correct, then they

can adjust the royalty base. 

Q. And the second fact is that 5 percent. That's 

the second part of your analysis, correct? 

A. That's correct. 

Q. If the jury determines that that 5 percent

doesn't reflect the value of these patents, your

damages model fails, doesn't it? 

A. Again, if the jury decides that the royalty

rate should be something different, then they have the

ability to make that determination. 

MR. BREWER: No further questions. 

REDIRECT EXAMINATION

BY MR. LENNON:

Q. Good morning, Mr. Blok. 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 34 of 368
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

09:08

09:08

09:08

09:08

09:08

09:08

09:08

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

09:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

754

A. Good morning.

Q. I'm going to try and talk a little slower

today. I apologize for the speed with which I spoke

yesterday. I was a little nervous.

Where do you understand infringement to have

occurred in this case?

A. It's my understanding that infringement occurs

in the U.S.

Q. Okay. Is it your understanding that the web

servers for the microchip.com website reside in the

United States?

A. That's my understanding.

Q. Okay. And you recall the presentation that

referenced the $215,000, which I believe you just spoke

to Microchip's counsel about. You recall that $215,000

number, right?

A. I do.

Q. Do you remember what currency symbol preceded

that 215 number?

A. Dollar.

Q. Okay. Wasn't a foreign currency symbol?

A. That's correct.

Q. Okay. For all the licenses that you

considered, do you have any idea of the extent of use

that was made of the accused features, other than in

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 35 of 368
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

09:09

09:09

09:09

09:09

09:09

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

09:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

755

the license? 

A. No. And that's what we had discussed

yesterday. 

Q. Okay. And in the license

example, your understanding is that by specifying a 

royalty rate in that agreement, that it was indicating

an incremental value, or what we've also now heard

described as an apportionment, of the value of the

accused technology relative to other nonaccused

technology; is that right? 

A. That's correct. Because that agreement was

focused on the specific patents and the value provided

to , which is similar to what is alleged

for Microchip as well. 

Q. Okay. And that -- so the percentages that are

in that agreement refer to that

incremental value; is that right? 

A. That's correct. 

Q. Okay. Do you recall seeing in Mr. Jordan's 

report a reference to there being 120,000 customers for

Microchip, roughly? 

A. I do. 

Q. Do you recall that Mr. Jordan's report

referenced that there were tens of thousands of posts

on the Forums page? 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 36 of 368
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

09:10

09:10

09:10

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:11

09:12

09:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

756

A. I do.

Q. Doesn't that indicate that the Forums pages

get a robust use from their $120,000 (sic) customer

base?

A. I would say that that's evidence of robust

use.

Q. You were asked just now about the redesigned

website. And the statement, I believe, was that the

redesigned website is alleged to be a noninfringing

alternative, right?

Do you -- can you remind us what's the date at

which, in the hypothetical negotiation, you're supposed

to assess whether or not there are any available and

acceptable noninfringing alternatives?

A. In March of 2014.

Q. Okay. There was also reference that the

microchipdirect.com website might be a noninfringing

alternative or doesn't include the accused features.

What's your understanding as to whether or not

the microchip.com website has the same information

that's on Microchip -- I'm sorry. Let me rephrase that

question.

Is it your understanding that

microchipdirect.com does not have the same amount of

information, the same types of information about the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 37 of 368
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

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:12

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

757

Microchip products as is on the microchip.com website? 

A. That's correct. It's my understanding that

the microchip.com website does not have the same

information as Microchip Direct. 

Q. I think I mentioned $120,000 customer base. I 

think maybe you understood what I was getting at. It's 

120,000 customers, not $120,000 worth of customers, 

right? 

A. That's correct. 

Q. Thank you for bearing with me on that

clarification. For the record. 

And so I believe part of this -- the Q&A that

you just went through, there was a suggestion that

maybe you've calculated the number improperly by

relying on the $215,000-a-day revenue number. 

Do you recall that? 

A. I do. 

Q. Okay. I want to step through some of the

things that we talked about yesterday in light of that

supposition and your statements yesterday that you

believe that your calculation was conservative. 

Do you recall that? 

A. I do. 

Q. Okay. So there were two reasonable royalty

rate percentages in the agreement?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 38 of 368
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

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:13

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

758

MR. LENNON: And, Mr. Gooden, could we

pull up J-18? 

I believe -- 

BY MR. LENNON: 

Q. So this is the agreement, 

right? 

A. Yes. It is. 

Q. All right. 

MR. LENNON: And if we could look at the

next page of this agreement. The amount of payment. 

BY MR. LENNON: 

Q. Can you just remind us what the two

percentages are that are specified here? 

A. Sure. The parties agreed to a royalty rate of

 

 

; is that

right? 

A. That's correct. 

Q. And why did you do that? 

A. Because it's conservative. 

Q. Okay. Now, also I believe yesterday we talked

about information that you received after you issued

your report. And I believe -- 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 39 of 368
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

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:14

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

09:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

759

MR. LENNON: If, Mr. Gooden, you could

pull up DTX-467.

BY MR. LENNON:

Q. Do you recall looking at this document

yesterday, Mr. Blok?

A. I do.

Q. Okay. And I offered that the total in here,

of sales, was 315.9 million.

Do you recall that discussion yesterday?

A. That's correct. For the first column -- or

the second column, microchip.com, source.

Q. And based on knowing how many days that would

be covered by this period, 853 days, you would --

figured out how much that would be per day?

A. It's approximately $370,000 a day.

Q. And that -- in comparison to the $215,000 a

day, what does that tell you about your calculations?

A. That the $215,000 a day is conservative.

Q. Thank you. So the --

MR. LENNON: I'm sorry to do this. Could

you jump back to J-18 again real quick?

BY MR. LENNON:

Q. Now, you were just asked about the liability

clause in here: Whereas, licensee has denied liability

in the litigation.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 40 of 368
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

09:15

09:15

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

09:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

760

So that's different than the context of this

case where you're asked to assume that patents are

valid and infringed, right? 

A. That's correct. 

Q. In the hypothetical negotiation. Okay. 

So what does this mean for Caddo's bargaining

position in the agreement compared to

what it would be in the hypothetical negotiation? 

A. And this is what we were explaining yesterday. 

In the hypothetical negotiation, that assumes that the

patents are valid and infringed. That puts the

plaintiff or the licensor in a better position. 

And so this would represent a conservative

royalty rate, if there is an -- or if there's no

assumption of liability. 

Q. So, again, what does that mean for your

calculation in this case? 

A. That it would be conservative. 

Q. Okay. 

MR. LENNON: And, Mr. Gooden, if you

could pull up the -- I believe it's the next one. 

Section 4.4 of this agreement. 

BY MR. LENNON:

Q. So, again, this denial of liability, what does

this mean to you in terms of assessing the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 41 of 368
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

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:17

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

761

agreement compared to the hypothetical

negotiation when you have a party who has denied

liability, yet specified a reasonable royalty rate

based on an extent of use? 

A. Well, as I stated yesterday, all settlement

agreements take into account litigation risks. And so

having this type of clause is not uncommon in these

types of settlement agreements. Which also means if

you're relying on those agreements, then they're a 

conservative representation. 

And if you have a royalty rate that the

parties agree to, then that tells you the extent of use

of -- that was considered by those parties at the time

that they entered into the agreement. 

Q. And if the jury gets to the damages part of

this case, would they have assumed that the patents

were valid and infringed in order to arrive at a 

damages number in this case? 

A. Yes. 

Q. And is that what you're doing here with your

analysis? 

A. That's correct. 

Q. Okay. 

MR. LENNON: Mr. Gooden, could we go back

to Clause 3.1 of this agreement? 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 42 of 368
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

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:18

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

762

BY MR. LENNON:

Q. Inside here there's a reference after the

 

 

Do you see that? 

A. I do. 

Q. Do you have any recollection as to what the

allegation of use was in the litigation that's in

this -- contemplated by this agreement? 

A. It's my understanding that the alleged use is

the same use that Microchip is alleged to have used the

patents-in-suit on their website to sell products. 

Q. This isn't -- this isn't -- this lawsuit

though -- well, just to be clear on the record, you're

not saying that this license agreement relates to the

microchip.com website, right? 

A. No. I'm not. 

Q. You're saying it's a use of website

technology? 

A. That's correct. 

Q. Okay. Do you know which website? 

A. I do not remember offhand. 

Q. Okay. That's fine. 

And then sticking with your points about your

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 43 of 368
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

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:19

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:20

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

763

conservative estimate here. When you were calculating

your damages numbers, you were just looking at

e-commerce revenues, not total revenue of Microchip; is

that correct?

A. That's correct.

Q. Okay. Do you recall seeing in Mr. Jordan's

report that the e-commerce revenues represented less

than 10 percent of Microchip's total sales?

A. I believe that's correct. But I'm -- I don't

remember if he was referring to U.S. sales or total

e-commerce sales.

Q. Okay. Nonetheless, you would acknowledge that

e-commerce sales is not the full universe of Microchip

sales, right?

A. That's correct.

Q. And in fact, you can make use of the accused

technology in this case without going to Microchip

Direct and purchasing a product; is that correct?

A. That's correct.

Q. So, for example, an engineer wants to purchase

something and they call their sales agent, purchasing

agent. That's not covered in the e-commerce context,

right?

A. That's correct.

Q. So that engineer could be using the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 44 of 368
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

09:20

09:20

09:20

09:20

09:20

09:20

09:20

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

09:21

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

764

microchip.com website to find information about the

product that they wanted to buy and then tell someone

else to purchase the product, either through a sales

rep over the phone or because they have a bulk

contract, right? And that wouldn't be covered in your

damages calculation, would it?

A. No. It would not.

Q. Even though that would be -- still be an

infringing use, using the microchip.com website?

A. That's correct.

Q. Are you aware of any printed catalogs? Have

you seen any printed catalogs or any other way to look

up information about products of Microchip other than

the website?

A. I have not seen any.

Q. Okay.

MR. LENNON: Your Honor, I have no

further questions.

MR. BREWER: No further questions.

THE COURT: You may step down, sir.

Thank you.

THE WITNESS: Thank you.

THE COURT: Could I have counsel up here

for just a second, one counsel per side?

(Bench conference.)

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 45 of 368
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

09:21

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

765

THE COURT: So you're done?

MR. DEVLIN: We're going to rest.

THE COURT: I'd like to keep going. Can

you -- Mr. Devlin, will you agree at our break we'll

allow the defendants to make any motions they care to?

MR. DEVLIN: Of course. Yeah.

THE COURT: And I --

MR. DEVLIN: For the record, Your Honor,

I think I mentioned this before, but just to get it on

the record, we have an agreement that the willfulness

case will be held open through Ms. Mahar. So there'll

be no motion on that even at the break. And that's

been agreed between the parties.

And then we mentioned that exhibit --

MR. JENSEN: Yeah. I think as long as we

just put that on the record, you rest your

case-in-chief except as to willfulness, that -- that's

fine.

THE COURT: Right now --

(Simultaneous speakers.)

MR. JENSEN: Perfect. Yeah. We're in

agreement.

MR. DEVLIN: So when I say we rest, Your

Honor, it's with that proviso. I didn't want to say

that in front of the jury.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 46 of 368
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

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:22

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

09:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

766

Thank you.

THE COURT: And then is your first

witness ready to go?

MR. JENSEN: Yeah.

THE COURT: That's what we're going to

do.

MR. DEVLIN: All right. Thank you.

THE COURT: I'm going to ask you to call

your next witness, and you can announce.

MR. DEVLIN: Great. Thank you.

(Bench conference concludes.)

THE COURT: Mr. Devlin, would you call

your next witness?

MR. DEVLIN: Your Honor, plaintiff rests

its case-in-chief. We do have a couple of exhibit

issues, which we're happy to deal with on the break, if

the Court will allow.

THE COURT: Let's do that.

MR. DEVLIN: Thank you, Your Honor.

THE COURT: Is the defendant ready to

call a witness?

MR. JENSEN: The defense is ready, Your

Honor. We call Ms. Nanci Mahar as our first witness.

(The witness was sworn.)

DIRECT EXAMINATION

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 47 of 368
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

09:23

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:24

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

767

BY MR. JENSEN:

Q. Good morning, Ms. Mahar.

A. Good morning. Is this volume okay?

Thank you.

Q. I got the head nod, so I believe so.

Could you please state and spell your name?

A. Nanci Mahar. N-a-n-c-i M-a-h-a-r.

Q. Have you ever testified in court before,

Ms. Mahar?

A. No.

Q. Are you nervous at all?

A. A little bit.

Q. Ms. Mahar, where do you work?

A. Microchip Technology.

Q. How long have you worked there?

A. Since 2000.

Q. And what is your current title?

A. Senior marketing manager of the web team.

Q. And what office -- or maybe I should say,

pre-coronavirus, what office did you work out of?

A. Chandler, Arizona.

Q. Is that where Microchip is headquartered?

A. Yes. It is.

Q. So I'd like to learn a little bit more about

you, but before we do that, I want to ask some

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 48 of 368
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

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:25

09:26

09:26

09:26

09:26

09:26

09:26

09:26

09:26

09:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

768

questions about Microchip as a company, all right?

When was Microchip founded?

A. I believe Steve Sanghi, the former CEO,

started it up in the late 1980s with a couple other

guys and built it up from there.

Q. Approximately how many people work in the

Chandler headquarters that you mentioned?

A. About 5,000.

Q. And company-wide, roughly, you know, how many

employees are there?

A. Yeah. We've grown to almost 20,000.

Q. Does Microchip have a design center located in

Austin?

A. Yes. We do. I believe there's one or 200

people there.

Q. What type of individuals work there, or what

type of work is done there?

A. Yeah. Engineering primarily.

Q. On that topic, what is Microchip's line of

business? What is it that you guys do?

A. Semiconductors. We make the little chips.

Q. At a high level -- I think this was touched on

just a few minutes ago with Mr. Blok, but at a high

level, what goes into developing and manufacturing the

semiconductor products that Microchip makes?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 49 of 368
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

09:26

09:26

09:26

09:26

09:26

09:26

09:26

09:26

09:26

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

769

A. So there's a lot of research and development.

We have a lot of engineering that goes into it, as you

might expect. There's a lot of fabrication and

testing. And, of course, there's marketing and

business administration, overhead, things like that.

Q. What sorts of applications are Microchip's

products used in?

A. Yeah. We're in Keurig®. Probably you guys

use that, right? Dyson vacuum, Maytag®, GE

refrigerators, for example, Genie garage door openers,

that kind of stuff.

Q. Is Microchip a website company?

A. No.

Q. Is Microchip in the business of designing and

developing websites?

A. No.

Q. But Microchip has some websites, correct, as

we've heard?

A. Yes. Yes. Everybody does.

Q. I think my grandmother launched her blog, so

you can subscribe.

Would it be fair to say that the Microchip

websites that we've been discussing are in service of

Microchip's broader semiconductor business?

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 50 of 368
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

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:27

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

770

Q. Okay. So you're not a company like Microsoft,

for example, that designs and develops software

applications?

A. No. Huh-uh.

Q. What types of customers typically purchase

Microchip products?

A. Other electronic companies, mostly

business-to-business.

Q. Do those companies typically purchase just one

or two microchips?

A. No. Actually we have large purchases of our

products.

Q. Can you give me an example of a company or two

that would be an example, kind of a representative

example, of someone who purchases from Microchip in,

let's say, I'll call it in bulk?

A. Yeah, yeah. So Honeywell would be one. NEC,

those kind of big companies.

Q. Are there any automotive companies that

purchase chips from Microchip?

A. Oh, yeah. And, you know, automotive is kind

of an interesting industry because there's a long -- we

call it a design in-time. It can take up to 18 months

before our product gets put into one of their designs.

And when they put them into a design, then it's for a

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 51 of 368
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

09:28

09:28

09:28

09:28

09:28

09:28

09:28

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

09:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

771

long-term contract like five years. So...

Q. So taking that example you gave of, you know,

a car company, for example, that wants to put some

of -- Microchip chips in their vehicle, would they

typically just go to the website and place a $5 million

order?

A. Oh, no. They'd work with our field

salespeople, or they'd work with a distributor.

Q. And why would they do that instead of just

going to the website and buying -- placing a bulk

order?

A. They'd want to negotiate price, obviously.

But they also want to negotiate terms like delivery.

Q. Is that an issue today with the supply chain

and the coronavirus?

A. Yes. We're part of the silicon chip shortage

for the vehicles. So I apologize.

Q. But Microchip does sell products online, to be

clear, correct?

A. Yes.

Q. Okay. And how are those online sales made?

A. Through Microchip Direct.

Q. Okay. And what is the URL for that website?

A. Microchipdirect.com.

Q. And is that a separate website from

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 52 of 368
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

09:29

09:29

09:29

09:29

09:29

09:29

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

09:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

772

microchip.com?

A. Yeah. It's completely separate. Separate

code, separate developers, separate management,

separate servers.

Q. So I have some more questions about the

websites. We'll get into that.

But I'd like to turn back now to your

background a little bit.

Oh, you know what? One more small line of

questions I almost forgot.

How long have you been with Microchip?

A. Since 2000.

Q. Since 2000. How big was Microchip back in

2000 when you joined?

A. Oh, I think worldwide we had 3,000 employees

instead of the almost 20,000 we have now. So it's

grown a lot.

Q. And since the 2014 time frame, because that's

the relevant date in this case, how has Microchip

grown, if at all, since that time?

A. Yeah. During that time we had a strategy of

acquiring companies. So we would acquire a company,

and then -- Microchip's the kind of company not to say

that we bought you, so you're coming over with us. We

say, you know, we're merging with you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 53 of 368
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

09:30

09:30

09:30

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:31

09:32

09:32

09:32

09:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

773

So we have an inclusive kind of language we

use internally so that the people that are coming on

from the other company really feel welcomed in our

groups.

And so we had like -- as I recall, there were

many, many acquisitions during that time frame.

Q. Could you mention maybe some of the, I don't

know, larger ones? Or at least the ones that you

recall?

A. Yeah. We had one that was called Supertex. I

believe they did a lot of analog products which is --

okay. So you have microcontrollers and you have

analog, just another type of silicon chip.

And there were other acquisitions that were

kind of smaller. IIS, they did some -- I believe some

more analog products, maybe some power management.

There were larger acquisitions like Micrel,

Atmel, Microsemi. And those took a lot longer to

integrate, but they brought us complementary products

to what we already offer.

Q. All right. Just at a high level, how do

Microchip's revenues today compare with what they were

in 2014, before, you know, these various acquisitions

that you mentioned?

A. Yeah. They've almost tripled. It's like

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 54 of 368
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

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:32

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

774

three times. And I know that because I serve up the --

when you're a public company, you have to file

documents with the SEC about your earnings. And so we

have these 10-Ks. So I went and looked at those 10-Ks.

Just kind of as a normal course of business, I kind of

keep track of things.

And yeah, we've tripled.

Q. And remind me, again, Ms. Mahar, what is your

current title? Maybe I neglected to ask. If I did, I

forgot. What is your title?

A. Senior marketing manager for the web team.

Q. And how long have you been in that particular

role?

A. Since April of 2018.

Q. And I want to ask you about that role in a

minute. But first let me get maybe kind of a thumbnail

sketch of the positions you have held since joining the

company. I think you said that was back in the year

2000?

A. 2000.

Q. Okay. And have you been there ever since?

Were there any gaps where you went somewhere else?

A. No. I've worked at Microchip the entire time.

Q. Okay. Why have you stayed around so long?

A. Well, a lot of it has to do with the culture.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 55 of 368
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

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:33

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

775

The company's a really great place to work.

Q. And during that, I guess, you know, roughly

22 years, what positions have you held? And I don't --

if you were somewhere for a few months or something,

just kind of bigger picture.

A. Yeah. Yeah. I started in promotions. That

was my original bachelor's degree, was in marketing.

So I started in promotions. And that led into making

wire diagrams, which is really just putting block

squares on a piece of paper and working with a

developer.

And then I moved into the web development

team. I was there until about 2012. And I ran

Internet projects and -- with, you know -- over time I

got to be on bigger and bigger projects, and I got to

be known as somebody who would deliver on time with my

projects. So I had a pretty good reputation.

And then I moved over to the SharePoint site,

which is -- Microsoft SharePoint's another application

that companies use. And I worked on that for a little

bit. I really didn't like that technology.

So then I went over to the MarCom team. I

write technical documents for them and made changes.

And then I came back to the web team.

Q. So at a high level, the first, I think it was

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 56 of 368
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

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:34

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

09:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

776

10 or 12 years you said, that was kind of a website

role, some promotions-related stuff. There was a

period of time where you were not working on

website-related projects. And then rejoined, I think

you said, in April of 2019?

A. 2019. Yes.

Q. 2019.

A. 2019. Thank you.

Q. Very good.

So you mentioned you were kind of working on a

website or part of a website team in those -- that

first decade or so. What website was that? Because

we've talked about several different websites. What

website were you involved with?

A. Microchip.com.

Q. Microchip.com. Okay.

When you kind of rejoined the web team in

2019, how did that come about? Why did you come back?

Did you apply for that position?

A. No. Actually, my current boss, Ross Ayotte,

he approached me and asked me to come back. And they

had this really big project to redesign the website and

wouldn't I please take that on? And I did.

Q. In your role as, I'll just call it the website

team lead, what are your primary responsibilities?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 57 of 368
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

09:35

09:35

09:35

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:36

09:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

777

A. Yeah. I'm primarily responsible for the

function, the usability, the uptime of the website.

Q. And I got the sense that there's a team of

people that work with you or -- I don't want to say

under you, but that are part of your team. How big is

that team?

A. We started out at about 20, 22 people. And

I've grown it to 34 people.

Q. And where are those team members located?

A. You know, we're really all over the world. We

have a large group in Chandler where I work. And then

we have another large group in India. And then there's

some other people throughout the world, in the

Philippines and Germany.

Q. Which reminds me, I meant to ask. Is the

microchip.com website available worldwide?

A. Yes. Actually it is.

Q. Is there like a separate URL if you're, you

know, in Germany or, you know, Spain?

A. No. Actually not at this time. Everything is

in English. But we're working on a project to expand,

to translate the website into other languages to make

it easier for other people to read.

Q. Do you have primary responsibility for the

microchipdirect.com website?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 58 of 368
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

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:37

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

778

A. No.

Q. Do you work with people who are responsible

for the Microchip Direct website?

A. Yes. They're my colleagues.

Q. And what -- kind of in your own words since

you're with the company, what is the

microchipdirect.com website?

A. It's our e-commerce portal. It's where people

go and purchase product.

MR. JENSEN: Mr. Thompson, could you just

pull up the microchipdirect.com website?

BY MR. JENSEN:

Q. And we're not going to spend much time on

this, but I do want to ask you a couple of questions

about it.

MR. JENSEN: And let's go to the

microchipdirect.com website.

Okay. Looks like it's up here. All

right. Very good.

BY MR. JENSEN:

Q. All right. Is this the microchipdirect.com

website, Ms. Mahar?

A. Yes. It is.

Q. And this is where customers can come to buy

Microchip products?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 59 of 368
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

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:38

09:39

09:39

09:39

09:39

09:39

09:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

779

A. Yes.

Q. If the Microchip Direct website crashed or was

offline for some reason, could customers purchase

products on microchip.com?

A. No.

Q. Conversely, if microchip.com crashed and

wasn't working, could customers still place an order on

Microchip Direct?

A. Yes.

Q. Okay. And what do you see kind of at the top

of the page, underneath the URL? And it has some text

there. It says: What can we help you find today?

A. Yeah. That's the search field where you can

type in a product name and search for a product.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you type

in --

BY MR. JENSEN:

Q. Or, Ms. Mahar, what's something that he could

type in there just so we can see how that --

A. PIC10F200, it's P-I-C-1-0 --

Q. Okay. Just pause right there for a moment.

So what are we looking at here? What

happened?

A. So it's doing a look-ahead for products on the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 60 of 368
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

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:39

09:40

09:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

780

website.

Q. Okay. Is that similar to functionality like

on Google's website, that it'll try to, you know,

predict or guess -- I don't want to say guess, but

predict what you're looking for?

A. Yes.

Q. Okay. Very good.

And is that how customers can locate products

on the purchasing website?

A. Yes.

Q. Or I should say one way, not the only way?

A. One way.

Q. One way. Okay.

And why is it that the search bar on this

website is sort of front and center, right? It's the

top -- it's the very first thing on the purchasing

website.

A. Right. One of the things that we've learned

over time, especially over the pandemic, is that search

is very, very valuable.

And I don't know about you, but I go to

Amazon -- or I use a search engine like Google, but I

go to Amazon a lot, and I'll search to find a product

and then I would purchase it, right? So...

MR. JENSEN: And, Mr. Thompson, you can

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 61 of 368
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

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:40

09:41

09:41

09:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

781

take that down.

BY MR. JENSEN:

Q. The first time I saw this, Ms. Mahar, it

struck me as a little bit odd that there were kind of

two different, you know, Microchip websites, right?

If I want to buy something from Apple, I might

go to apple.com and buy something there.

So why is it -- why does Microchip have these

two distinct websites?

A. Right. So we consider our online sales

another channel. It's kind of like our distribution

channel. And we don't want to compete with our

distributors on our main microchip.com website, so we

have a separate website for purchasing.

Q. Do you know when the Microchip Direct website

was kind of implemented, or when did it get put on the

Internet?

A. Yeah. I believe it was back in 2005ish.

Q. Okay. But it certainly would have been there

in 2014?

A. Yes. Absolutely.

Q. Okay. And do you have primary responsibility

for the Forum website that we've heard about in this

case?

A. No. I don't.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 62 of 368
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

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:41

09:42

09:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

782

Q. Do you work with people who are responsible

for the Forum website?

A. Yes.

Q. And in your own words, what is the Forum

website?

A. It's a discussion platform. People can go

there and talk about our products.

Q. And we'll come back and have some more

questions later on about the Forum website, but I'd

like to ask some questions about what's been referred

to throughout the trial as the old website or the

original website.

And you've been here the -- this whole week,

the entire time?

A. Yes.

Q. Okay. What is the purpose of the

microchip.com website?

A. It's informational, to share information about

our products.

Q. Is the microchip.com website only available in

the United States?

A. No. It's not.

Q. Is it available in Europe?

A. Yes.

Q. How about South America?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 63 of 368
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

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:42

09:43

09:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

783

A. Yes.

Q. Mexico, Canada?

A. Yes. Yes.

Q. Okay. And perhaps there's, I don't know, some

one-off countries where it's not, you know --

A. Yeah.

Q. -- available for political reasons or

something. But in general, it's a worldwide website?

A. That's right.

Q. Okay. If someone in Europe, for example,

visited microchip.com, would their request to load the

website be serviced by a server in the United States or

a server in Europe?

A. No. If we had everybody come back to the

United States, it would take down the website. So we

serve up our website international on servers all

around the world.

We go -- you -- if you were in Taiwan or

Norway, you would go to a server in that or near that

country. It just makes the website load faster. And

that was a big problem we had before.

Q. Do you work with any other vendors or

companies to help provide these servers throughout the

world?

A. Yeah. We have a third party that does that.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 64 of 368
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

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

09:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

784

Q. Who is that third party?

A. Akamai.

Q. And do you have a sense of how many servers do

they have? Is it one or two or...

A. No. I believe I read on their website that

it's over 200,000 servers worldwide.

Q. And if somebody in Spain was loading the

website, would it load faster or slower if that website

used a server in Spain versus a server in the United

States?

A. So if they went to a server in Spain, it would

load very quickly. If they had to come back to the

United States, there would be several paths, and it

would take a lot longer to load the site if they came

back to the U.S.

Q. Is that one reason why Microchip has

servers -- I call them Microchip's, but Akamai on

behalf of Microchip has servers located throughout the

world?

A. Yes.

Q. It increases the page load speed?

A. Yes.

Q. Makes it faster?

A. Yes.

Q. Are you -- do you have an understanding of the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 65 of 368
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

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

09:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

785

difference between kind of hosting the website or a

server that hosts a website and what it would be to

maintain a website?

A. Yes.

Q. Okay. Could you explain that, please?

A. Yeah. So we have servers in Chandler where we

maintain our source code, and then we copy it out to

Akamai's servers, and we host it out there so that it

goes faster to the user.

Q. Okay. And the latter of those two things,

where the code is maintained -- well, let me take a

step back.

Microchip has some servers in the United

States; is that correct?

A. Yeah. On the east coast, west coast.

Q. Okay. So somebody in the U.S. wanted to visit

microchip.com, that page would be served up by a server

in the U.S.?

A. Yeah.

Q. Okay. So you're not saying that we don't have

servers in the U.S., correct?

A. Correct.

Q. You do?

A. Yes.

Q. But you also have servers outside of the U.S.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 66 of 368
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

09:44

09:44

09:44

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

09:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

786

for other areas of the world?

A. Yes.

Q. Okay. You mentioned, I think, someone by the

name -- and I may get the pronunciation off here, but

Ross Ayotte?

A. Uh-huh.

Q. Is that correct?

A. Right.

Q. Okay. And he was the individual that

recruited you to lead the redesign?

A. That's right.

Q. Okay. So I'd like to ask you some questions

about the microchip.com website as it existed prior to

the redesign.

A. Okay.

Q. And first off, what was the state of affairs

of the microchip.com website in the fall of 2018?

A. Oh, it was in critical repair. The code was

very fragile. When we tried to put new code on the

site, the database would crash, meaning that the

website would not render properly on the Internet.

The page load speed was, you know, at that

time I believe it was about 12 seconds, you know, I

mean, really slow to load a page before you see

something. And the Internet industry believes that 2

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 67 of 368
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

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:46

09:47

09:47

09:47

09:47

09:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

787

to 3 seconds is the right amount of time to load a

page.

So it was -- it was fragile. It was horrible

to work on the system. And it was really challenging

for our customers.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you

bring up Joint Exhibit 104, please?

BY MR. JENSEN:

Q. All right. Ms. Mahar, do you recognize this

document?

A. Yes.

Q. What is it?

A. It's a presentation that the person that had

my job before me, Grace Ramon -- she was my

predecessor -- she created a presentation on why we

needed to reengineer the website.

Q. And why did you have a copy of this document

in your files?

A. Ms. Ramon left the company in the spring of

2019, and we had a transition phase where she gave me

her documents, and we kind of went over everything.

Q. Why did she prepare it?

A. She prepared it in order to request funds for

redesigning the website from management.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 68 of 368
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

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:47

09:48

09:48

09:48

09:48

09:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

788

Q. And I meant to ask one more question when we

were talking about the worldwide operation of the

website, which is: When, let's say, someone in Spain

wants to visit the website, the person that's

navigating that website would be in Spain?

A. Yeah.

Q. Okay.

A. Yeah.

Q. Very good.

Let's see.

MR. JENSEN: Mr. Thompson, could you turn

to -- well, let me back up.

BY MR. JENSEN:

Q. Let me ask one other question. When was this

presentation prepared, just kind of rough time frame?

A. I believe the fall of 2018.

Q. Okay.

MR. JENSEN: Could we go to Slide 14,

Mr. Thompson?

BY MR. JENSEN:

Q. What is shown on this slide, Ms. Mahar?

A. It's showing the -- on the image on the left,

it showed the existing website at the time, how fragile

and crumbling the website was. Kind of depicts that

there was a lot of work. And obviously, you can't

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 69 of 368
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

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:48

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

789

repair something that is that bad.

And then on the right side, it shows the

website as we would want it to be, modern, sleek, fast,

reliable, stable, all of those good things.

Q. How much time would be required to build a new

website from the ground up?

A. Well, it depends on the size of the website.

You know, smaller ones don't take that long, but this

is a huge website, has a lot of pages and a lot of

documents. So it takes about a couple years.

Q. Did Microchip ultimately redesign its website?

A. Yes.

MR. JENSEN: Mr. Thompson, you can take

that down.

And -- well, let me -- since there's been

some confusion about getting exhibits into evidence,

let me offer that into evidence. That is Joint

Exhibit 104.

MR. DEVLIN: No objection.

THE COURT: It'll be admitted.

MR. JENSEN: And, Mr. Thompson, could you

please pull up Joint Exhibit 101?

BY MR. JENSEN:

Q. And, Ms. Mahar, do you recognize this

document?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 70 of 368
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

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:49

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

790

A. Yes. I do. It was a web proposal from DRL,

and it explains what we needed to do to fix the site.

Q. And what is the date on this document?

A. October 16, 2018.

Q. And who prepared it?

A. Cody Miller.

Q. Okay. And he's associated with what company?

A. Dynamic Range Labs. He's the CEO. He doesn't

really get involved in the project or the day-to-day,

but he is the founder of that company.

Q. And did Microchip solicit proposals or bids

from a number of different companies to assist with the

redesign?

A. That's our typical practice.

Q. Okay. And DRL was the company that was

ultimately selected for this particular project?

A. Yeah.

Q. Okay.

MR. JENSEN: All right. Let me move that

into evidence as well, Joint Exhibit 101.

MR. DEVLIN: No objection.

THE COURT: It'll be admitted.

BY MR. JENSEN:

Q. And one thing I'd like to do, Ms. Mahar, is to

try and help put kind of some of these events in the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 71 of 368
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

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:50

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

791

context of a timeline --

A. Yeah.

Q. -- I think would be helpful.

Did you prepare a slide --

A. I did.

Q. -- to help with that? Okay.

MR. JENSEN: Mr. Thompson, could you

bring up the timeline slide? And we'll place a couple

of these data points on the timeline.

BY MR. JENSEN:

Q. So what time period are we looking at here on

your timeline, Ms. Mahar?

A. 2018 to 2020.

Q. Okay. And in roughly what time frame was the

decision made to redesign the website? Or at least it

was under consideration?

A. Right. In order for Grace to have made the

presentation that she did, she had to have a lot of

discussions with business users, developers, managers,

and be able to pull all the information together. So

it started sometime around the mid of 2018.

Q. Okay.

MR. JENSEN: And could we pull up the

first couple of points there?

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 72 of 368
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

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:51

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

792

Q. So we just looked at this web proposal from

DRL, Joint Exhibit 101. And that was in kind of late

2018, October time frame?

A. Yes.

Q. Okay. And the other, the old house/new house

document we looked at, that was roughly what time

frame?

A. Early in 2019.

Q. Okay. And that kind of old house/new house

image, was that the only presentation in which that

figure appeared?

A. No. It kind of resonates with you.

Q. Okay.

A. So it appeared a lot.

Q. So it might have been used a little bit

earlier; it might have been used a little bit later as

well. But certainly in that kind of rough late 2018,

early 2019 period?

A. That's right.

Q. Okay. So let's stick with this -- kind of

this time frame we're looking at here, the fall of

2018. You know, you mentioned that a redesign project

would take a significant amount of time?

A. Yes.

Q. Were there any changes that Microchip made to

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 73 of 368
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

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:52

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

793

the website, you know, maybe smaller changes or

quick-fix type changes in this fall 2018 time period?

A. Yes. We made some cosmetic changes to the

website. We also made the change to get rid of a left

navigation. So on web pages you might have a lot of

links on the left side. We repurposed that to be a

horizontal format with some drop-downs.

Q. Okay. And prior to the fall of 2018 -- well,

let me follow up on that. You said there's a left

navigation, and it was sort of repurposed, I think you

said, into a --

A. Yes.

Q. -- a different horizontal menu path; is that

correct?

A. Yes. That's right.

Q. Okay. And is that the feature that we've

heard about in this trial that's accused?

A. Yes.

Q. Okay. So prior to fall of 2018, did the

microchip.com website even have the accused -- what's

been called the breadcrumb?

A. No. It did not.

Q. Okay. Very good.

Were any of the changes made in this kind of

fall 2018 time period intended to be permanent? Or

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 74 of 368
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

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:53

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

09:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

794

were they more in the nature of a temporary fix?

A. Yeah. They were a temporary fix. Very much a

Band-Aid until we could go through the process of

redesigning the website. It takes a long time, so we

tried to give some changes that might hold us over for

a little while.

Q. Okay. So notwithstanding some of these, you

know, cosmetic changes that were implemented in the

fall of 2018, was it still necessary to undertake this

wholesale redesign project?

A. Yes. Absolutely. I think you could tell from

those images that it needed to be rebuilt.

Q. What was the -- well, let me ask you this:

Was there an internal kind of name -- I'll call it a

code name, but --

A. Yeah. We called it coat of paint. Kind of

a -- just a way to kind of refer to the house. You

know, sometimes you just put a little paint on it and

kind of make it feel and look a little better, but it

doesn't really address the underlying problems.

Q. Okay. So what were some of those fundamental

underlying problems that remained to be fixed?

A. Yeah. Every time we tried to move out a code

change to change or update a functionality, the code

would break. The database would crash. We'd have to

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 75 of 368
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

09:54

09:54

09:54

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

09:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

795

rebuild the database. And we'd have to adjust all of

the code to kind of get it to work again. So it was

very challenging.

MR. JENSEN: Mr. Thompson, why don't we

switch from the timeline and go back to Joint

Exhibit 104, Page 6, please?

BY MR. JENSEN:

Q. And this is from that old house/new house

slide deck we were just looking at. And what was the

time frame of this document again?

A. The fall of 2018.

Q. Okay. Was this before or after these cosmetic

changes had been implemented?

A. I believe after.

Q. Okay. And what is shown on this slide? What

is this slide intended to convey?

A. Yeah. It shows the importance of having a

fast page load, the time it takes for a page to

display, for you to see it. So it's really the

importance of that.

Q. So this page load time problem and the other

issues you'd mentioned continued to exist after the

fall of 2018?

A. Yes. That's right.

Q. So adding the accused breadcrumb feature did

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 76 of 368
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

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:56

09:57

09:57

09:57

09:57

09:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

796

not solve any of these problems we're looking at on

this slide?

A. No.

Q. Okay. And so I think you mentioned that

Microchip retained DRL to assist with the website

redesign, correct?

A. That's right.

Q. Did they redesign the whole thing by

themselves? Or did they work with Microchip? What was

the -- was there a balance between the two? How did

that relationship work?

A. Yeah. It was such a large project that they

retained people, but we also used our whole team to

rebuild the website.

MR. JENSEN: Could we go back to the

timeline, please, Mr. Thompson?

BY MR. JENSEN:

Q. So while he's pulling that up, everything

we've been talking about here so far, all the events,

the redesign proposal, the website problems, et cetera,

was that before or after Caddo filed the lawsuit that

brings us here?

A. Oh, it was almost a year before.

Q. Did Microchip's decision to redesign the

microchip.com website have anything whatsoever to do

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 77 of 368
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

09:57

09:57

09:57

09:57

09:57

09:57

09:57

09:57

09:57

09:57

09:57

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

797

with this lawsuit?

A. No. It did not.

Q. Did DRL perform an assessment of the old

website -- I think you called it the coat of paint --

prior to undertaking the actual redesign work itself?

A. Yeah. They did. They did a great analysis.

Typically we call it discovery period. But yeah, they

did a great Phase 1.

MR. JENSEN: Mr. Thompson, could you

bring up Joint Exhibit 105, please?

BY MR. JENSEN:

Q. Do you recognize this document, Ms. Mahar?

A. Yes. I do.

Q. What is it?

A. It's the Phase 1 Deliverables from Dynamic

Range Labs. And basically it's their assessment of all

of the problems that involved the microchip.com

website. And it describes how we should address them.

Q. Okay. Do you know how long this document is?

MR. JENSEN: And perhaps Mr. Thompson can

help us and just flip to the end.

BY MR. JENSEN:

Q. We can see how many pages, since we don't have

the --

A. Yeah. I think it's a couple hundred pages.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 78 of 368
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

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:58

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

798

Q. A couple hundred pages of problems they

identified?

A. Yeah.

Q. Okay. All right. And who prepared this

document?

A. Dynamic Range Labs, DRL.

Q. And this was given to Microchip?

A. That's right.

Q. Were you in your current role at this time

when DRL provided this document?

A. Yes. This was right about the time that I

started managing the team.

Q. And so did you receive and review this

document in the normal course of business?

A. Yes.

Q. All right.

MR. JENSEN: And, Mr. Thompson, can you

turn to Page 50 of this document, please?

BY MR. JENSEN:

Q. And I'd like to call your attention,

Ms. Mahar -- I'm going to have to zoom in, but it's

kind of the -- I think it's Item No. 3 in the little

yellow box there.

A. Yes.

Q. Let's go up a little bit to the text. I think

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 79 of 368
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

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

09:59

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

799

there's two No. 3s, and they relate to each other.

A. Okay.

Q. Could you read -- just read the first sentence

of this paragraph?

A. So often across the Microchip website, the

navigation on a page doesn't match the top navigation.

Q. What does that mean? What is that referring

to?

A. It's referring to the secondary nav, what

we've been calling the breadcrumb, and how it relates

to the top navigation.

Q. So on the microchip.com website, there's a top

navigation menu, and it's got some drop-downs that a

user can navigate and make a selection?

A. That's correct.

Q. And at that point a so-called breadcrumb or a

menu path will appear underneath?

A. That's correct.

Q. Okay. And what is this observation saying

about the consistency of those two menus?

A. It doesn't -- it doesn't match. It's not

consistent. So you can look at the top navigation

there, and it has Products, Application, Design, Sample

and Buy, and About.

And none of those words appear in that second

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 80 of 368
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

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:00

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

800

level. It says Home, Security ICs, Crypto, and

Authentication. And so it doesn't match.

Q. And did DRL view this as a good thing or a bad

thing?

A. Bad thing. It was very confusing for our

customers. They didn't understand -- they didn't

understand it.

Q. How frequently did this mismatch occur?

A. On many pages.

Q. Did you ever personally observe this mismatch

that DRL observed?

A. Yes.

MR. JENSEN: You can take that down,

Mr. Thompson.

BY MR. JENSEN:

Q. And I take it you've -- well, let me take a

step back.

We've got a video, very short video, that I

would like to show for you.

MR. JENSEN: Could we pull up,

Mr. Thompson, Defendant's Exhibit 463?

And why don't you pause it there for just

a moment, Mr. Thompson?

So kind of maybe rewind it to the

beginning.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 81 of 368
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

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:01

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

10:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

801

BY MR. JENSEN:

Q. So what is it that's on the screen here? What

are we looking at?

A. The Google search engine.

Q. Okay. And what I'd like to do is just let's

watch this video all the way through.

A. Okay.

Q. All right. And then I'll come back and ask

you a couple of questions about it.

A. Sure.

(Video played.)

MR. JENSEN: Okay. Go ahead and you can

just hit pause there. That's all there is to it.

BY MR. JENSEN:

Q. So do you recognize the website that was shown

in this video?

A. Yes.

Q. Okay. And what website was that?

A. Microchip.com.

Q. Microchip.com.

And you're familiar with that website?

A. Very familiar. I've gone to a lot of pages.

Q. And what did we observe a user doing on the

website in this video?

A. Sure. They went to the top navigation and

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 82 of 368
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

10:02

10:02

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:03

10:04

10:04

10:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

802

selected Tools and something and then Encryption, and

then they went to MPLAB® Connect Configurator.

Q. Okay. And do you know if this video is from

the old website or the redesigned website?

A. It's actually both. We did a phased approach

in rolling out our website because it was so large. We

wanted to make sure that we could roll out a phase,

make sure it worked right, and then do the next section

and then the next section.

So what you saw was the redesigned homepage,

and then this is from the old website.

Q. And how do you know that this functionality

that we observed here was from the old website?

A. You can tell because this -- you guys call it

a breadcrumb -- this breadcrumb is available, the

colors are a little different, that kind of thing.

Q. Okay.

MR. JENSEN: And let's -- if you could

play it one more time, Mr. Thompson, and I might ask

you to pause it along the way because I want to take

careful note of the selections that are being made by

the user from the top navigation.

(Video played.)

MR. JENSEN: Just keep playing here.

(Video played.)

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 83 of 368
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

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:04

10:05

10:05

10:05

10:05

10:05

10:05

10:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

803

A. So it's Tools and Software.

BY MR. JENSEN:

Q. Tools and Software.

A. And then Embedded Software Center. And MPLAB®

Code -- Connect Configurator. Sorry.

Q. And in the resulting path, what are the links

in that -- the resulting path, Ms. Mahar?

A. Home, Internet -- or Interface and

Connectivity, USB, and then MPLAB® Connect

Configurator. It doesn't match the path that we just

took.

Q. Was this a one-off example?

A. No. This was very common.

Q. Why?

A. Because we manually typed in those links that

you see in that breadcrumb.

Q. And can you explain a little bit more, what do

you mean you "manually typed" them in?

A. Right. So I had a couple guys on my team,

Sean and Anthony. They -- bless them. They worked

really hard. They spent lots and lots of hours typing

in those labels and those links on what you see here.

That was a fixed path on that breadcrumb.

Q. And I think you said, you know, we implemented

these fixed paths.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 84 of 368
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

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:05

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

804

A. Oh, that's right.

Q. And is that the royal "we," like when my dad

says, we need to reroof the house?

A. Yeah. I have limited resources, so sometimes

I had to go in and type in the links as well.

Q. So you personally --

A. Yes.

Q. -- as the head of the website team, had to go

in and enter some of these fixed paths that resulted in

the mismatch?

A. That's correct.

Q. Okay.

A. I -- you know, we wear lots of hats when we

work for a company that makes stuff.

Q. And I think you mentioned earlier the website

has a lot of pages?

A. Yeah. We have, I don't know, 25,000 pages,

more or less. It's huge.

Q. And how much work was it to manually enter all

of these fixed paths that you mentioned?

Let's say a new link comes on and you need a

new fixed path. How much work was this to do?

A. A lot of work. We would get requests from

business users to, say, add a new page, and we'd have

to go into the code and type in the new name and type

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 85 of 368
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

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:06

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

805

in the new link, and then it would go out to

production. And if something changed, we'd have to go

back in and make the manual change.

Q. Was that an efficient use of resources on your

team?

A. No. I was really -- I was really kind of mad

about it because it -- you know, developers, they

should be building stuff. They should be working on

new functions, not putting links on pages.

Q. And what was DRL's recommendation as it

related to using this fixed-path approach that you have

described?

A. Yeah. They recommended that we get rid of it.

Q. Did Microchip follow DRL's recommendation?

A. Yes. We did.

Q. And how long had this functionality been in

place when DRL came to you and said, essentially, this

is no good and let's change it; let's fix it; let's do

it right?

A. Yeah. It was only a couple of months before

they recommended that we get rid of it.

Q. So this feature was implemented or added, I

think you said, in the fall of 2018. And then again --

MR. JENSEN: Maybe we can pull the

timeline up, please, Mr. Thompson.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 86 of 368
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

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:07

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

806

BY MR. JENSEN:

Q. So it was added late 2018. And we have the

document there where DRL said, hey, this is a problem.

That's April.

Roughly how long was this even live on the

Internet before the recommendation was made to take it

down?

A. Yeah. Just several months.

Q. Okay. And was all of this done again before

or after Caddo sued Microchip?

A. I believe over a year before.

Q. Okay. So all of these recommendations and the

decisions to replace this functionality were made more

than a year before you were sued?

A. That's right.

Q. And when did Microchip first learn of the

patents in this case?

A. March of 2020.

Q. Okay.

A. Yeah.

Q. And that's when the lawsuit was filed?

A. That's right.

Q. Did Caddo or 511 notify or provide any

advanced warning to Microchip that they had patents and

that they thought Microchip was using their patents?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 87 of 368
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

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:08

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

807

A. No. I really wish they would have.

Q. And you would have been made aware of that as

the head of the website team if there was a patent

laws- --

A. Absolutely.

Q. -- or a patent assertion of some kind?

A. Yes. Absolutely.

Q. Okay. So does the menu path that we saw in

the video for the old website depend on the selections

the user made to get to that web page?

A. I'm sorry. Could you --

Q. Yeah. We've got the wrong --

MR. JENSEN: We can take the timeline

down.

A. Thank you.

BY MR. JENSEN:

Q. It probably throws you off a little bit.

A. A little bit.

Q. Yeah.

Yeah. Does the menu path, the breadcrumb, so

to speak, on the old website depend on the specific

selections the user makes from the top navigation?

A. No. It doesn't.

Q. Was fixing this kind of broken approach to the

secondary navigation menu the only recommendation that

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 88 of 368
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

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:09

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

808

DRL made to Microchip?

A. Not by a long shot.

Q. Okay. And we saw -- we didn't go through it,

and we're not going to go through all 200 pages of the

recommendations.

A. Thank you.

Q. But I do want to ask about one other

recommendation that they had in particular.

MR. JENSEN: And before I forget, let me

move Defendant's Exhibit 463 into evidence.

MR. DEVLIN: No objection, Your Honor.

THE COURT: Be admitted.

MR. JENSEN: Mr. Thompson, could you

please pull up Defendant's Exhibit 430?

BY MR. JENSEN:

Q. And while he's doing that -- well, it came up

very quick.

All right. What are we looking at here,

Ms. Mahar?

A. We're looking at our Phase 2 kickoff agenda,

and it talks about the items that we wanted to discuss

on making changes to the website.

Q. And what's the date of this document?

A. November 4 to 6 of 2019.

Q. And it references basically a kickoff meeting?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 89 of 368
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

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:10

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

809

A. Yes.

Q. Okay. And this was preCOVID. So did this

meeting happen in person?

A. It did.

Q. Okay. And are you listed on the front page in

the first bullet as an attendee at this meeting?

A. Yes.

Q. Okay. And what was the purpose of this

meeting?

A. To discuss how we wanted to approach Phase 2

of making changes to the website, the microchip.com.

Q. And let's see.

MR. JENSEN: How long is this particular

document, Mr. Thompson?

A. I think it's about ten pages, if I recall.

BY MR. JENSEN:

Q. Okay.

MR. JENSEN: I think we can just stick on

the first page. Could you blow up for us, please,

the -- maybe those last two bullets at the bottom?

BY MR. JENSEN:

Q. And before I ask about that, who prepared this

agenda?

A. Dynamic Range Labs.

Q. Okay. And they provided it to you in

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 90 of 368
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

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:11

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

810

connection with the meeting?

A. That's right.

Q. Okay. And it had some of their

recommendations and topics for discussion?

A. Yes.

Q. Okay. And what is the recommendation or topic

that's here on the screen right now, the last bullet?

A. To update the breadcrumb to not include

drop-downs.

Q. So on the old website, I don't think it showed

it in the video, but if you had hovered over those kind

of menu links, what would have happened?

A. It would have shown a drop-down menu.

Q. Okay. A drop-down menu. Very good.

And what was DRL's recommendation -- in

addition to fixing the -- sort of the mismatch, what

was their recommendation as to having that drop-down

menu as part of the breadcrumb?

A. To get rid of it.

Q. Okay. Why?

A. Because it was a little confusing. There

really wasn't a lot of value in it. You have the top

navigation. You have the links right there on every

page. Why have a secondary one? They can just use

what's already there.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 91 of 368
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

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:12

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

811

Q. And with that in mind, let me just ask: Why

did Microchip kind of implement that feature in the

first instance, right?

In the fall of 2018, so as part of the coat of

paint, you said there was a left nav. You kind of

repurposed it, switched it. What was the reasoning

behind that?

A. It was kind of -- it was happening on some

sites in the industry, and so we thought we'd try it

out. It didn't end up to be very useful for us at all.

Q. Okay. Did Microchip implement this

recommendation to remove the drop-down menus --

A. Yes. We did.

Q. -- as part of the redesign?

A. Yes.

Q. Okay. Was that like a major part of the

redesign project?

A. No.

Q. Okay. That was done kind of together with the

wholesale --

A. Yes.

Q. Okay. The project as a whole?

A. Yes.

Q. All right. And we saw this --

MR. JENSEN: Could you pull up the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 92 of 368
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

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:13

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

10:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

812

timeline slide once again?

BY MR. JENSEN:

Q. Okay. So now we've got the -- kind of the

kickoff meeting that happened here, the recommendation

to remove the drop-down functionality.

And was that recommendation made and adopted

by Microchip before or after Caddo filed this lawsuit?

A. Before.

Q. Okay. The implementation of that -- when did

that start to occur? Sort of the rollout, all the work

was done, and it was actually starting to go live on

the Internet?

A. Right. So I mentioned that we did this

project in phases. So we had Phases 2, 3, and 4. So

the pages started to roll out in June of 2020.

MR. JENSEN: All right. Mr. Thompson,

let's pull up, please, Defendant's Exhibit 344.

BY MR. JENSEN:

Q. And what is Exhibit 344, Ms. Mahar?

A. The User Interface Style Guide. It tells our

developers how to create the interface itself. It

talks about what fonts to use, what colors to use, how

to make buttons, what to put on the page itself as far

as a functionality.

Q. And who prepares this, the UI Style Guide?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 93 of 368
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

10:14

10:14

10:14

10:14

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

10:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

813

A. DRL.

Q. Okay. And why -- did they prepare that at

your request?

A. Yeah. So what we do is, we give this to all

of our developers so that they're making all of the

same -- the code all of the same way. So when we put,

you know, code from 20 or 30 different developers

together, it all looks the same.

Q. And these are internal developers at the

company or third parties or both?

A. Both DRL and Microchip developers.

Q. Okay.

MR. JENSEN: And before I forget, let me

move into evidence Defendant's Exhibit 430.

MR. DEVLIN: No objection.

THE COURT: It'll be admitted.

MR. JENSEN: And likewise, let me move

into evidence Defendant's Exhibit 344 that we're

looking at now.

MR. DEVLIN: No objection.

THE COURT: It'll be admitted.

MR. JENSEN: Mr. Thompson, please turn to

Page 7 of the style guide. And I'd like to ask you to

zoom in. I think it's on the lower left corner there.

Yeah. Under the heading Breadcrumb.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 94 of 368
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

10:15

10:15

10:15

10:15

10:15

10:15

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

10:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

814

Okay.

BY MR. JENSEN:

Q. What are we looking at here, Ms. Mahar, in the

style guide?

A. It tells the developers how to create the

breadcrumb. In this case it says that no breadcrumb

hover or drilldown like on the current site.

And --

Q. I'm sorry. Go ahead.

A. Sorry. And the last breadcrumb item looks

like the same, even though it is not clickable.

Q. I want to focus on the Item A there that says:

No breadcrumb hover drilldown like on current site.

A. Uh-huh.

Q. What was the current site at that time?

A. That was the old website.

Q. Okay. That was the old website. And what was

DRL saying here when they refer to this hover drilldown

capability?

A. It's kind of like what you're talking about

with the breadcrumb in this case, the alleged hover

over a breadcrumb, and you get a drop-down menu.

Q. Okay. So the hover drilldown, that's just

another way to say a drop-down menu?

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 95 of 368
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

10:16

10:16

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:17

10:18

10:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

815

Q. Okay. And was this recommendation and these

instructions to the, you know, the hover drilldown, the

drop-down, was going to be gone, was this distributed

to the Microchip website developers?

A. Yes. To all of the developers on the project.

Q. Okay. So was Microchip instructing its

developers to remove the hover drilldown, or the

drop-down menu, prior to Caddo filing this lawsuit?

A. Yes.

Q. Okay.

THE COURT: Counsel, about how much more

time do you have with her?

MR. JENSEN: I'm probably halfway, maybe

two thirds. If we -- to take a break?

THE COURT: That's why I was asking.

MR. JENSEN: You'll never get an

objection from me to that suggestion.

THE COURT: Ladies and gentlemen of the

jury, we'll stand in recess for about ten minutes.

Please remember my instructions not to discuss the case

amongst yourselves.

(Jury exited the courtroom.)

THE COURT: You may be seated.

Is there anything we need to take up?

MR. JENSEN: Nothing from us, Your Honor.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 96 of 368
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

10:18

10:18

10:33

10:33

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:34

10:35

10:35

10:35

10:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

816

THE COURT: Okay. Very good.

(Recess taken.)

THE BAILIFF: All rise.

THE COURT: Please remain standing for

the jury.

(Jury entered the courtroom.)

THE COURT: Thank you. You may be

seated.

BY MR. JENSEN:

Q. Welcome back, Ms. Mahar.

A. Thank you.

Q. Before the break we were talking a little bit

about the redesigned website.

A. Yes.

Q. Okay. And we looked at some documents that

indicated that as part of the redesign, Microchip was

removing this drop-down menu from the secondary

navigation bar --

A. Yes.

Q. -- is that correct?

Did Microchip, in fact, remove that drop-down

menu?

A. Yes. We did.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 97 of 368
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

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:35

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

817

bring up an Internet browser? And let's just go to the

microchip.com website.

BY MR. JENSEN:

Q. And is the current microchip.com website the

redesigned website?

A. Yes.

Q. Okay. So across the top of the website --

MR. JENSEN: And is this showing up for

the jury? I don't see it on the monitor.

All right. There we go. Very good.

BY MR. JENSEN:

Q. So what is it that we see across the top of

the website, kind of beneath the URL? Kind of next to

the Microchip logo?

A. Yeah. It's the top navigation.

Q. And that's the main menu?

A. Yes.

Q. Okay.

MR. JENSEN: And, Mr. Thompson, let's

just go ahead and navigate a path on that menu. We

could go to Products, Amplifiers and Linear, and

Comparator ICs, for example.

BY MR. JENSEN:

Q. And that brings up a new web page when the

selection is made?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 98 of 368
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

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:36

10:37

10:37

10:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

818

A. Yes.

Q. And can you read the path kind of that's

underneath the Microchip logo?

A. Products, Amplifiers and Linear ICs, and

Comparator ICs.

Q. Okay. And in this instance, on the redesigned

website, does that match the path that was navigated?

A. Yes.

Q. Okay.

MR. JENSEN: And let's -- Mr. Thompson,

if I could just ask you to hover the mouse over, let's

say, the Products item there.

BY MR. JENSEN:

Q. What happens?

A. There's no drop-down menu.

MR. JENSEN: Likewise, let's go over the

Amplifiers and Linear ICs.

A. No drop-down menu.

BY MR. JENSEN:

Q. Okay.

MR. JENSEN: Let's try another path,

maybe just one more example. Go to Products, Analog.

Well, that one doesn't seem to have any other -- let's

do one that's got a few more links. Go to Products,

Clock and Timing, and Atomic Clocks.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 99 of 368
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

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:37

10:38

10:38

10:38

10:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

819

BY MR. JENSEN:

Q. And the resulting path is Products, Clock and

Timing, Atomic Clocks; is that correct?

A. Correct.

Q. And that matches the selections that were

made?

A. Yes.

Q. Okay. Is there a drop-down menu when he

hovers over those links?

A. No.

Q. Is there any type of menu functionality

whatsoever?

A. No.

Q. Okay.

MR. JENSEN: Why don't you leave that

page up? I want to look at kind of one or two other

things on this. Let's -- why don't we just go back to

the home page? So click on the Microchip logo there.

BY MR. JENSEN:

Q. And let me ask you this: So without the

drop-down menu on that breadcrumb, how can users find,

you know, information on the microchip.com website?

A. Well, there's a couple mechanisms, but, you

know, there's the top navigation, the top menu.

But what we've learned over the pandemic is

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 100 of 368
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

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:38

10:39

10:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

820

that search is really important. So you'll see that

little spyglass just to the right of -- yep. That

opens up a search bar.

And like you guys, I'm sure, you go to Google

and you do a search on that search engine. Or you go

to -- I go to Amazon and I search and I buy something,

right? So...

Q. Okay.

MR. JENSEN: And let's see if we can just

exit out of the search window, please.

BY MR. JENSEN:

Q. And I see just kind of in the maybe middle of

the page, some logos, Get Design Help, Events,

et cetera?

A. Yes.

Q. Are each of those links as well?

A. Yes.

Q. And those could be used to navigate or find

information on --

A. Yes.

Q. -- on the web page?

So when a user visits the microchip.com page,

just like we have here, before they've clicked on

anything else, is there a breadcrumb on this page?

A. No. They haven't gone anywhere yet.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 101 of 368
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

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

10:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

821

Q. Okay. So that only exists if they navigate

the top menu?

A. Yeah. If they navigate through the site.

Q. Okay. And I see there's -- kind of looks like

a shopping cart there, kind of in the -- maybe the

middle, toward the right, where it says "Purchase

Products"?

A. That's right.

Q. So at this point there isn't even a breadcrumb

on the website, correct?

A. Correct.

Q. Okay. And somebody could click on the

shopping cart. And if they did, what would happen?

A. They would go to microchipdirect.com.

MR. JENSEN: Why don't we see if that's

the case, Mr. Thompson? Just go ahead and click on

that link.

BY MR. JENSEN:

Q. And it looks like it opened up a -- like a new

tab in the browser?

A. Yes.

Q. Okay. So if somebody followed that path to

arrive at Microchip Direct, they would not have even

navigated the top navigation menu, and there would have

been no breadcrumb on the site at all?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 102 of 368
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

10:39

10:39

10:39

10:39

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

10:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

822

A. That's correct.

Q. Okay.

MR. JENSEN: Let's close out of this tab,

please, Mr. Thompson. We'll go back to the main

Microchip site.

Or you can leave it up on the screen.

Just close the tab.

All right. And I'm sorry. I want to go

to the regular microchip.com site. My apologies.

Okay. And I see across that -- kind of

that top banner, there's on the far right side, looks

like -- I don't know if it's a link or not. Why don't

you hover over it where it says "Order Now."

A. Yes.

BY MR. JENSEN:

Q. Okay. And, again, at this point there's not

even a breadcrumb, let alone a breadcrumb with a

drop-down on the website?

A. Correct.

Q. Okay. So somebody could click the Order Now

button, and what would happen?

A. They would go to Microchip Direct.

Q. Okay.

MR. JENSEN: Let's just confirm that's

the case.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 103 of 368
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

10:40

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:41

10:42

10:42

10:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

823

Very good. So you can go ahead and close

that -- the current tab, Mr. Thompson.

I got it wrong again. Let's go back to

the regular Microchip site.

BY MR. JENSEN:

Q. We'll just look at one more thing. And in the

far top right corner of the page, what is the icon that

you see?

A. Next to the search, the little spyglass, is a

person, and that's how you can log into your account

and then where you get information about our products.

And then you can go to the shopping cart, is the third

icon.

Q. Okay. And what would happen if you click on

the shopping cart?

A. You'd go to Microchip Direct.

Q. Okay. I don't know that we need to do that

one. I think we've seen that enough.

What if somebody clicked on --

MR. JENSEN: Let's just scroll down in

the page a little bit, Mr. Thompson. Maybe up just a

little bit, the first -- yeah. AI is transforming

SSDs. Let's go ahead and just click on that, see what

happens.

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 104 of 368
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

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:42

10:43

10:43

10:43

10:43

10:43

10:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

824

Q. And in this instance, what appeared in that

secondary navigation path?

A. It's taking you to a blog about -- with

information about how artificial intelligence is

transforming these products.

Q. And is there something in that sort of

breadcrumb field where it says, I think, "About"?

A. Yes. It says "About" and then the name of the

article.

Q. Did Mr. Thompson navigate a menu structure to

make that appear?

A. No.

Q. Okay. He just clicked on a regular link on

the web page?

A. Yes.

Q. Okay. Very good.

MR. JENSEN: You can take that down,

Mr. Thompson. Thank you very much.

Mr. Thompson, could you bring up Joint

Exhibit 104, please?

And let's go to Slide 6.

And let -- maybe let's zoom in a little

bit on that.

BY MR. JENSEN:

Q. Have you seen this slide before, Ms. Mahar?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 105 of 368
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

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:43

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

825

A. Yes. I have. It's part of a presentation

that Grace made that talks about the changes that we

need to make on the website.

Q. Okay.

MR. JENSEN: And I'd like to zoom in -- I

mean, it's really, really tiny down there. I think

it's the footnote in the bottom left of the slide, I

mean, in something like 2-point font.

BY MR. JENSEN:

Q. Okay. And what does this -- what does this

footnote say, Ms. Mahar?

A. It says that microchip.com drives $215,000 of

revenue a day through the e-commerce portal.

Q. Okay. We can just pause there, I think.

And what is the e-commerce portal?

A. Microchip Direct.

Q. Okay. So is this referring to instances where

somebody could be on the microchip.com website and then

be redirected, for example, as we just saw, to the

Microchip Direct site and make a purchase?

A. Yes.

Q. Okay. Very good.

And I think we just looked at, you know,

several examples of how you could click on a link,

whether it's a shopping cart, the Order Now button,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 106 of 368
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

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:44

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

826

various other things, and be redirected from the

microchip.com site to the microchipdirect.com site

without using a breadcrumb at all?

A. That's right.

Q. Okay. Without using a drop-down breadcrumb?

A. Yes. That's right.

Q. Do you have an understanding as to whether

this $215,000-a-day revenue number that's shown here

relates to the use of the accused breadcrumb in this

case?

A. No. There's no indication on this slide.

Q. Okay. Based on what you know about the usage

of the microchip.com website, is it your understanding

that all $215,000 a day of revenue would be driven from

somebody using a drop-down breadcrumb on the

microchip.com website?

A. No. It's highly suspect in my mind. I think

that's not generally the case.

Q. And, in fact, the redesigned website doesn't

even have a breadcrumb with a drop-down at all, does

it?

A. No. It doesn't.

Q. And what has happened -- so this presentation,

what was the -- kind of the point in time for this one?

A. Fall of 2018.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 107 of 368
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

10:45

10:45

10:45

10:45

10:45

10:45

10:45

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

10:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

827

Q. Okay. Fall of 2018.

And you testified, I think, earlier before the

break that Microchip acquired a number of companies --

A. Yes.

Q. -- in that 2014 to 2018 time frame?

A. Yes.

Q. Prior to all of those acquisitions, would this

$215,000-a-day number be higher or lower?

A. I'm sorry. Could you rephrase that question?

Q. So yeah. Sure. And I'll slow down for the

court reporter. She is giving me the signal.

So you mentioned earlier that Microchip

acquired a number of companies, some of them relatively

large, between 2014 and 2018?

A. Yes.

Q. Okay. So if there were $215,000 a day of

sales in, you know, as shown on this slide in 2018 --

A. Uh-huh.

Q. -- prior to those acquisitions, when the

company was smaller, would this number, 215,000 a day,

have been larger or smaller?

A. Oh, this is definitely larger. When you

acquire companies, you get bigger and bigger. So it

would have been -- this is probably pretty high days,

where we made a lot of sales.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 108 of 368
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

10:46

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:47

10:48

10:48

10:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

828

Q. And what has happened since the -- well, I

want to -- we'll get into this a little bit. When did

the redesign start to be implemented?

A. We started putting web pages on the site, on

the microchip.com website, in June, late June of 2020.

Q. And I think you said that was -- you said you

started in June of 2020?

A. Yes. That's right.

Q. And it was a phased approach?

A. Yes.

Q. It wasn't the flip-the-switch?

A. No.

Q. Okay.

A. No. There's too many risks with a

flip-the-switch, too many things could go wrong, too

much data could not get to the right spot. It's just

too big of a risk to go with a flip-the-switch on such

a large website.

Q. And do you know what has happened -- since

that time, since the -- kind of the release of the

redesigned website, right, without the drop-down

breadcrumb, what has happened to Microchip's kind of

online sales that come from microchip.com to Microchip

Direct?

A. It's gone way up.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 109 of 368
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

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:48

10:49

10:49

10:49

10:49

10:49

10:49

10:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

829

Q. Okay. So removing the feature that was

accused in this case resulted in an increase in online

sales from microchip.com to Microchip Direct?

A. Yeah.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you

bring up Joint Exhibit 115?

BY MR. JENSEN:

Q. Do you recognize this exhibit, Ms. Mahar?

A. Yes. I do. I wrote it.

Q. And what is it?

A. This is a presentation that I would have given

to my boss and my boss' boss talking about the items

that we completed as part of the first part of Phase 4.

So we had Phases 2, 3, and 4, and then within

that we had several parts. So this is the end of the

first part of Phase 4.

Q. And what was the purpose of preparing this

presentation?

A. It is to describe the things that we achieved

during that time and to request funds to pay DRL for

their services.

Q. Okay.

MR. JENSEN: Could we go to the next

slide in the deck, please, Mr. Thompson?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 110 of 368
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

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:49

10:50

10:50

10:50

10:50

10:50

10:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

830

BY MR. JENSEN:

Q. And this slide is titled "Burndown Chart"; is

that correct?

A. Yes.

Q. Well, I'm unfamiliar with that phrase. What

is a burndown chart?

A. So when you work with engineers, they use the

term "burndown chart." But basically what it means is

you have this amount of work and then you slowly

complete it over time. So you're burning down the work

until you get to -- you know, get it done.

Q. And it looks like there's a graph on this

slide; is that right?

A. Yes. So the green line represents what we had

planned to do. And --

Q. Let me pause you there for just a minute.

What are the axes? There's an X-axis and a Y-axis.

What are the axes here?

A. Sure. It's the percentage complete of the

tasks that we were going to do. And it's across time

on the bottom.

Q. Okay. And the -- I'll call it the Y-axis, if

I can remember back to my math days, is zero to

100 percent?

A. Correct.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 111 of 368
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

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:50

10:51

10:51

10:51

10:51

10:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

831

Q. Okay. And then we'd have the time period on

the bottom. What's the time period that's shown in

this particular slide?

A. October 2020 to the end of April 2021.

Q. So I think you mentioned that starting in kind

of June or the summertime of 2020, which was -- is not

shown on this graph, would be to the left. That's when

the initial rollout of the redesigned website took

place?

A. That's right.

Q. And that's why the first data point on the

left of this graph is not starting at a -- sort of

100 percent. There had already been some work done.

It looks like it's at, I don't know, 90 percent,

something like that?

A. Yes. That's right.

Q. Okay. And by 90 percent, that means there's

90 percent left to do or 90 percent has already been

completed?

A. Left to do. There's 90 percent of the work

still left to do.

Q. Okay. And at what point in time was this

burndown chart prepared?

A. Right about -- right before October, I

believe. No. I'm sorry. So it has a line, a vertical

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 112 of 368
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

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:51

10:52

10:52

10:52

10:52

10:52

10:52

10:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

832

line there, that says "today." So this chart was

prepared around the beginning of February.

Q. Okay. So everything to the left of that chart

was actual data. Redesigned pages that had actually

been implemented?

A. That's right.

Q. Okay. And everything to the right of the

chart would be -- would be a forecast or a projection?

A. That's right.

Q. A target?

A. Yes.

Q. Okay. Very good. Did Microchip complete --

did it meet the goal that was on here? I think the

target, the green line?

A. Yeah. So the target was to be 90 percent

complete by April 1st. And we met that.

Q. Okay. And you say 90 percent complete.

You're not saying it was 100 percent complete?

A. No.

Q. Okay.

A. No. That wasn't --

Q. And why is that?

A. You know, with such a large website, there's

just a lot of work to do. And you get through as much

as you can. And then you put a line in the sand and

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 113 of 368
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

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:52

10:53

10:53

10:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

833

you say you're there. And then you have to go through

all of the cleanup and all of the peripheral

applications and kind of do the rest of the work.

Q. Is it fair to say that's maybe kind of a

substantial completion --

A. Yes.

Q. -- date? Not a 100 percent?

A. Yes.

Q. Okay.

A. That's what I mean.

Q. And even after this, I guess, maybe, you know,

May time frame here of 2021, did there continue to be

any kind of old website pages that were -- lingered

around?

A. Yeah. Absolutely. There was like -- gosh, I

don't know, maybe a percent left of work to just kind

of go through and do. And like I said, there's other

applications that are around the website, so

microchip.com, as that project was substantially

completed by that time.

Q. And what would Microchip do as it came across

any of these kind of leftover old web pages?

A. Oh, we decide if we needed to keep them or

not. And then we would either redesign them, or we

would take them off of the Internet.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 114 of 368
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

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:53

10:54

10:54

10:54

10:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

834

Q. Okay. And I think you were here during

Mr. Sherwood's testimony when we looked at some PDF

files that were available on the Microchip website?

A. That's right.

Q. Okay. And just what is a PDF file?

A. Yeah. It's a document. It's an electronic

document.

Q. Okay. And that could be like a datasheet or

something for a product?

A. Yeah. So for our products -- you guys aren't

familiar with the word "datasheet," so let me explain.

Q. I'm sorry.

A. That's okay. So our silicon products have

to -- you have to tell the engineer how to use the

product, what's in it. And so we have datasheets. And

they're anywhere from 50 pages to hundreds of pages.

So those are substantial documents to us.

Q. And that's like a document somebody could just

download onto their local computer and have a copy?

A. That's right.

Q. Okay. And as part of the redesign project,

did Microchip redesign any of the, you know, PDF file

links?

A. No. No.

Q. Why not?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 115 of 368
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

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:54

10:55

10:55

10:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

835

A. That's not what you do with the file. It's

like having a book. You know, you just -- you're

giving somebody a book.

Q. Do the links to the PDF files have anything to

do with the, you know, the drop-down menu or the

breadcrumb?

A. No.

Q. Okay. All right.

MR. JENSEN: Mr. Thompson, you can take

this slide down. And I'd like to go back to the

timeline again to just kind of, you know, reorient us

here.

A. Sure.

BY MR. JENSEN:

Q. So prior to the complaint being filed on

March 27, 2020, Microchip had made the decision to

remove the -- well, number one, to fix the broken

breadcrumb; and two, to remove the drop-down menu

feature --

A. Yes.

Q. -- is that correct?

A. Uh-huh.

Q. And then we saw, I think, on the burndown

slide, that the actual rollout or implementation of the

redesign took place a little while after the complaint

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 116 of 368
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

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:55

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

836

was filed?

A. Uh-huh.

Q. Okay. Did the timing and rollout of that

implementation of the redesigned website result in any

way from the fact that a lawsuit was filed?

A. No.

Q. That had been in the works for some time

before?

A. Yes. Absolutely.

Q. Okay.

MR. JENSEN: You can take that down,

Mr. Thompson.

BY MR. JENSEN:

Q. I want to switch gears just a little bit,

Ms. Mahar, and ask you a few questions about the Forum

website.

A. Okay.

Q. All right. You have some familiarity with the

Forum website?

A. Yes.

Q. Okay. All right. Did Microchip write the

software that implements the Forum website?

A. No. We did not.

Q. Who did?

A. A company called ASP Playground.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 117 of 368
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

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:56

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

837

Q. And did Microchip, you know, license or

purchase the Forum software from ASP Playground?

A. Yes. We did.

Q. How much did they charge? How much did you

have to pay to get that software?

A. $400 a year.

Q. And that's regardless of how many users there

are on the Forum website?

A. That's correct.

Q. It's just a flat fee?

A. Flat fee.

Q. Okay. And was it a one-time fee, or do you

have to pay it every year?

A. I think we paid it every year. We might have

gotten an every-other-year deal. But it was pretty

much every year.

Q. Okay. What is the URL for the Forum website?

A. Microchip.com/forums.

MR. JENSEN: Could we go ahead and pull

that up, Mr. Thompson? We'll go to the Forum website.

BY MR. JENSEN:

Q. Is the fact that the Forum website has the

microchip.com URL -- or has microchip.com in the URL

mean that the Forum website is the same as the

microchip.com website?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 118 of 368
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

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:57

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

838

A. No. It's completely different software.

Q. Okay. And you said you don't have

responsibility for -- or primary responsibility, I

should say, for this -- for the Forum site?

A. Yes. That's correct.

Q. There's another person or team within the

company that is responsible for this?

A. That's correct.

Q. Okay. Why didn't -- so we talked about kind

of this big redesign project. And that was, you

know -- you were brought on to lead that effort.

A. Uh-huh.

Q. Why didn't you, you know, redesign the Forum

site as well?

A. Right. The -- you know, we have limited

resources, so we have to prioritize our work. So we

decided to go with the website that was crumbling and

falling down and fix that first. And then we look at

the peripheral products.

MR. JENSEN: And let's just go ahead and

click on, you know, one of the -- let's go down. Just

click on one of the links there. It's a post, as it

were, on the Forum.

BY MR. JENSEN:

Q. And I want to direct your attention,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 119 of 368
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

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:58

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

839

Ms. Mahar, to the URL at the top there. It says

microchip.com/forums, and it has a number followed with

a -- kind of an extension. Can you see that? Sort

of --

A. Yes.

Q. I don't know if I should call it a file

extension but it's a -- what is that extension?

A. Do you want me to read it or just tell you

about it?

Q. Just -- well --

A. Yeah. So at the very end it's .aspx, and

that's a file format that's used with the .net platform

for writing code for displaying pages.

Q. And how is it that you're familiar with the

.net platform?

A. Our website is on .net platforms that are on

Windows servers, Windows operating systems, and IIS.

It's Internet Information Services.

Q. And who provides the -- kind of the .net

platform? Is that something ASP Playground provides,

for example? Because you get the software from them or

from somebody else?

A. No. It's Microsoft.

Q. Microsoft. Okay. Right. The one -- the

company that makes like the Windows OS? Okay.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 120 of 368
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

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

10:59

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

840

A. Yeah.

Q. Are you aware of any other companies that sell

software that can be used to host a discussion board or

a Forum site?

A. Yes.

Q. How are you aware of those?

A. We've recently learned that ASP Playground as

a company is going out of business. We cannot get

ahold of them. Their website is down. And so we're

looking for a replacement package.

Q. Have you considered any replacements?

A. Yes. We've considered several of them. One

of them happens to be Salesforce, another package that

we use.

Q. And how is it that -- why is it that you were

looking at Salesforce in particular?

A. Well, we already have it, and it's easier to

maintain one system rather than two separate systems.

So Salesforce has a -- comes along with what

they call a "Community." And so Forums is the same

thing as Community. They just started calling it a

different thing lately. So they have an option that we

could use for going to Forums with that.

Q. And how is it that Microchip already has some

access to the Salesforce Community software?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 121 of 368
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

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:00

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

11:01

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

841

A. Yeah. We pay a license for using the

Salesforce platform.

Q. Did -- I think you mentioned some companies

that you had acquired earlier?

A. Uh-huh.

Q. Did any of those companies use the Salesforce

Community platform?

A. Yes. Yes. They did.

Q. Okay. Is that why it's sort of on your radar?

A. Yeah.

Q. Okay. How much would it cost Microchip to

migrate from the existing ASP Forum platform and

implement that on the Salesforce platform?

A. Well, the cost for using the Salesforce

Community is pretty much zero. We already pay for the

licenses, so it's just a function that we can, you

know, use.

Q. Do you know -- have you used the Salesforce

Community platform before?

A. I personally have not. It's managed by

another group.

Q. Have you seen it in use?

A. Uh-huh. Yeah.

Q. Okay. Does it have a breadcrumb feature?

A. No. It doesn't.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 122 of 368
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

11:01

11:01

11:01

11:01

11:01

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

11:02

11:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

842

Q. In your role as the web development team lead, 

Ms. Mahar, are you made aware of instances in which

Microchip has licensed patents related to its website

functionality? 

A. Yes. I am. 

Q. Has Microchip ever licensed any

website-related patents before? 

A. Yes. There's one in particular. It's called

 We licensed a group or a portfolio of patents

to use. I think we spent about for it. 

MR. JENSEN: Mr. Thompson, could you

bring up Joint Exhibit 26, please? 

BY MR. JENSEN:

Q. Ms. Mahar, do you recognize this exhibit? 

A. Yes. I do. 

Q. What is it? 

A. It is the agreement between Microchip and

for using these licenses, licensing these

patents. Sorry. 

MR. JENSEN: I'd like to move the

admission of Joint Exhibit 26. 

MR. DEVLIN: No objection. 

THE COURT: It'll be admitted. 

BY MR. JENSEN:

Q. And who are the parties to this agreement, 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 123 of 368
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

11:02

11:02

11:02

11:02

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:03

11:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

843

Ms. Mahar? 

A. and Microchip Technology. 

Q. And is this the final executed version of the

license agreement? 

A. I believe so. Are there signatures on the

signature line? 

Yes. This is the signed agreement. 

Q. Okay. To the best of your knowledge, 

Ms. Mahar, did sue Microchip before Microchip

took a license? 

A. No. They did not. 

Q. So contrary to, I think, the experience that

Mr. Moehrle had that we heard about earlier, where he

sent a letter and nobody responded, is it the case that

Microchip has, in fact, responded to such letters and

taken licenses in the past? 

A. Yes. We do. 

Q. Based on your 20-plus years of experience

working at Microchip, do you believe Microchip would

knowingly infringe on someone else's patents? 

A. No. That's just not who we are. 

Q. Last question, Ms. Mahar: Are you proud of

the work that you and your team have done to redesign

and launch Microchip's redesigned website? 

A. I am so proud of my team. They work so hard. 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 124 of 368
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

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:04

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

844

I'm really proud of them.

MR. JENSEN: I pass the witness.

CROSS-EXAMINATION

BY MR. DEVLIN:

Q. Good morning, Ms. Mahar.

A. Good morning.

Q. This is the first time you and I have ever

spoken; maybe have said pleasantries in the hall or

something?

A. Yes. That's right.

Q. Right.

I understand it's your first time testifying.

Still a little nervous?

A. Yes. Yeah.

Q. All right. Let me tell you how this is going

to go. I'm going to ask you some questions about some

topics. You're going to agree with me sometimes and --

I hope you'll agree -- you're going to disagree with me

sometimes, and you're free to disagree, okay?

A. Okay.

Q. All right. And what we're going to try to do

together is distill out what some of the real issues

may be for the jury or where we all agree.

A. Okay.

Q. And so the jury doesn't have to worry about

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 125 of 368
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

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

11:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

845

it.

Is that all right?

A. That sounds good.

Q. Okay. There's not going to be any yelling, no

slamming, anything, all right?

A. Thank you.

Q. We're going to be just fine. Thank you so

much for being here with us today.

So the first thing I want to do is I want to

work a little bit -- I know you're not managing the

Forum website, but you are familiar with how it

operates --

A. Yes.

Q. -- generally?

You've seen some of the things during this

trial?

A. Yes.

Q. Now, by the way, the person who manages that,

or the team, does that include Mr. Wolf, who we're

going to hear from?

A. No.

Q. Okay. So someone -- that team was not

available to come here to trial and testify about the

Forum section?

A. Yeah. I don't know why they're not here.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 126 of 368
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

11:05

11:05

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

846

Q. Okay. Thank you.

Well, let's do our best together.

A. Okay.

Q. We're going to --

MR. DEVLIN: Let's pull up the Forum

section, Mr. Gooden.

Thank you.

BY MR. DEVLIN:

Q. So we're live on the Internet right now,

Ms. Mahar, and we'll go as fast or slow as you need.

But let me just try to confirm a few things

about how this Forum section works, make sure that what

the jury has been seeing isn't smoke and mirrors,

you'll -- you know, that we agree that what we're

looking at on the screen really is happening on the

web.

A. Sure.

Q. All right. Thank you.

MR. DEVLIN: So, Mr. Gooden, if you click

on that and just hold there. All right.

Just pause there, please, Mr. Gooden.

BY MR. DEVLIN:

Q. So when Mr. Gooden clicks on that Forums tab

on the Forums website, what happened was a drop-down

menu appeared, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 127 of 368
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

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:06

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

847

A. Yeah.

Q. Okay. And this is part of a hierarchical

structure of drop-down menus on this Forums web page,

right?

A. Yeah. I call it a top nav, but it's really

different orientation.

Q. Sure. But the top nav is referencing the fact

that it starts up at the top heading area, right?

A. Yeah. Uh-huh.

Q. But a lot of top navs have this drop-down

structure like this one we're looking at here?

A. That's right.

Q. Okay. Great.

MR. DEVLIN: And before you do it,

Mr. Gooden.

BY MR. DEVLIN:

Q. You've seen this, when Mr. Gooden hovers over

one of these items, there's going to open up a

subordinate or second level of the hierarchical

structure, right?

A. Yeah. That's right.

Q. Great.

MR. DEVLIN: So let's go ahead and do

that, Mr. Gooden, that third one.

And just for the record, that's what's

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 128 of 368
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

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:07

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

848

happened. Mr. Gooden is now hovering over something

called 8-Bit Microcontrollers, and it's pulled out a

subordinate menu subsidiary in the hierarchy on the

right.

BY MR. DEVLIN:

Q. Did I get that right?

A. Yes.

Q. Okay. Great. Thank you.

And, again, if Mr. Gooden were to hover over

one of those items, we see another -- a third level in

that hierarchy of the menu structure; is that fair?

A. Yes.

Q. Okay. And you'd agree that a website is --

can broadly be characterized as an information

structure; is that fair?

A. Yeah.

Q. Was that a "yes"? Sorry.

A. Yes.

Q. Great. Thank you so much.

Okay. Now, before Mr. Gooden clicks this,

let's just agree on what we think's going to happen.

He's going to click -- he's now on the third

level of the hierarchy. He's on the third item down.

He's not going to click yet, please. And he's over

Timing and Measurements.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 129 of 368
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

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:08

11:09

11:09

11:09

11:09

11:09

11:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

849

Do you see that?

A. Yes.

Q. Okay. Now, when he clicks this, what's going

to happen is this menu structure's going to collapse;

is that right?

A. Yes.

Q. And then there's going to be created a series

of links, a sequence of links across the top of the

page, just below the top nav; is that right?

A. Yes.

Q. Okay. Great.

MR. DEVLIN: Now, don't do it yet,

Mr. Gooden.

BY MR. DEVLIN:

Q. I want to ask you something here. The way we

got to where Mr. Gooden is now with that mouse hovering

over that third item of this particular grouping in the

third level of the hierarchy is he hovered over the

third item at the first level.

Do you remember that?

The particular -- let me ask you --

MR. DEVLIN: Let's go back, Mr. Gooden,

to the first level. Okay.

BY MR. DEVLIN:

Q. So when he hovers over the third one of those

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 130 of 368
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

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

11:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

850

items down, it opens up a given menu in the second

level of the hierarchy, right?

A. Right.

Q. Great.

MR. DEVLIN: Why don't you scroll down

just one, Mr. Gooden?

Great.

BY MR. DEVLIN:

Q. Now, that opened a second level of the

hierarchy, right?

A. Right.

Q. But it's a different set of selections than

the one just above we were hovering over. That's my

point.

Do you understand me?

A. Yes.

Q. Okay. And likewise, if he went down each of

these, there'd be a set of selections that is different

than the other sets of selections you'd get from other

items in that first level. Fair?

A. Yes.

Q. Great. Thank you.

So let's go back to the third and let's -- and

same here. When we're at the second level, if he

hovers on one of those items, that may or may not pull

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 131 of 368
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

11:09

11:09

11:09

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

851

up an extra menu, correct?

A. Yes.

Q. Some of those are just direct links to a page;

is that right?

A. Yes.

Q. Okay. And then he can hover over that third

one, and that opens up a third level, correct?

A. Yes.

Q. Okay. Great.

Now, let me see if I can get this right. If

Mr. Gooden had hovered over a different item at the

first level and that opened up a different item in the

second level -- are you with me so far?

A. Yes.

Q. Then hovering over that might open up a third

level, right?

A. Yes.

Q. But that third level would be different than

the one that we're looking at on the screen, given the

path we took so far to get here, correct?

A. Yes.

Q. Great. Thank you.

THE COURT: Ma'am, you need to -- I

know -- if I can help you, you need to wait until he's

done asking a question. When you are kind of

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 132 of 368
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

11:10

11:10

11:10

11:10

11:10

11:10

11:10

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

852

interjecting with yes or no -- I'm having to correct

you here, I don't mean to -- but we're -- it doesn't

work as well for us in this setting.

THE WITNESS: I'm so sorry.

THE COURT: No, no. I don't mean to --

you're just acting normally. And you're -- but I'm

just saying it'll help keep the record a little clearer

and help Mr. Devlin and the jury if you can just wait,

sit on your hands a little bit and let him -- I don't

mean to chastise you. It'll just help all of us if you

can wait a little bit.

THE WITNESS: Sure. Sorry about that,

folks.

MR. DEVLIN: And, ma'am, I got to say I

know it's partly me also. It's part of the process

here. I have to ask sometimes really long questions to

make sure I'm getting the precise question out that I

need. And I know that's -- it's artificial but it's

something I need to do. So I know it's not you; it's

me. All right? Or we're in it together.

BY MR. DEVLIN:

Q. Okay. So I think we've agreed that the

different choices that you see at a given level of the

hierarchical menu structure depend on the choices you

made to get to that particular spot in the level; is

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 133 of 368
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

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:11

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

853

that fair?

A. Yes.

Q. Okay. Thank you so much.

MR. DEVLIN: Now, still -- yet,

Mr. Gooden.

BY MR. DEVLIN:

Q. When we click on this, we're going to get that

collapsing menu. We're going to see that series of

links up at the top. And then we'll see what happens.

All right? Are you with me?

A. Yes.

Q. Great. We're going to click on it.

MR. DEVLIN: Go ahead, Mr. Gooden. Thank

you so much.

BY MR. DEVLIN:

Q. All right. Now, would you agree if -- that in

the Forums website -- now, I'm not -- let me be very

clear about what I'm going to ask you here. I'm not

asking you anything right yet about the main website,

microchip.com, okay?

A. Okay.

Q. And I'm definitely not asking you about the

new -- the redesigned version. I'm just asking you

right about Forums right now. So I don't want you to

feel like I'm trying to catch you on anything, okay?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 134 of 368
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

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:12

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

854

A. Thank you. That's fair.

Q. Yes. All right. So we're just talking about

the Forum.

Would you agree that what is there just below

the top nav, that sequence of links, that that's an

Active Path that we've been talking about this week --

MR. JENSEN: Objection, Your Honor. This

calls for expert testimony. He's asking about the

claim language. And it's beyond the scope of direct.

Clearly we didn't go on and navigate the Forum site or

do any of this.

THE COURT: Overruled.

A. Yes. I don't know exactly what Active Path

is. I haven't heard that term before this trial. But

from what I understand from sitting in for the last few

days, I believe what you're saying is an Active Path.

BY MR. DEVLIN:

Q. Okay. Thank you so much, ma'am.

And that's partly because when we hover over

one of these links, is it fair to say that's an -- so

let me just be clear while we are on the record.

So we've got five different links in a

sequence right there in what we just said was an Active

Path, right? Five different links?

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 135 of 368
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

11:13

11:13

11:13

11:13

11:13

11:13

11:13

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

855

Q. Okay. Great.

And if Mr. Gooden hovers over the third of

those as he's doing now, we see a drop-down menu that

offers other choices, other items. We'll leave it at

that. Is that fair?

A. Yes.

Q. Okay. Now, did you --

MR. DEVLIN: Mr. Gooden, do we have those

screenshots of where -- or can you do them when we're

going down Forums?

BY MR. DEVLIN:

Q. Let me move on and make it a little simpler.

MR. DEVLIN: That's okay, Mr. Gooden. I

think we'll stay here.

BY MR. DEVLIN:

Q. Let me just try to summarize a couple of

things we've seen. We've seen this hierarchical menu

structure. And then we go through that, we can select

something, and we get a new page, a collapsed menu, and

an Active Path. So far so good? Want me to say it

again?

A. Nope. I'm thinking. Collapsed menu. And we

get the breadcrumb. Yes.

Q. Thank you.

And when you said "breadcrumb," that's --

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 136 of 368
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

11:14

11:14

11:14

11:14

11:14

11:14

11:14

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

856

you're referring to the thing that we just labeled an

Active Path. Is that okay? Just trying to make it

clear for the record.

A. Yes.

Q. Okay. And sometimes in the verbiage of how

you've operated in the past and so forth, what we were

calling an -- what we are calling here an Active Path,

you might still refer to as a breadcrumb. Maybe a

breadcrumb with drop-down or a breadcrumb with hover;

is that right?

A. Yes. That's right.

MR. JENSEN: Objection, Your Honor. This

is the claim language. He's asking her to do claim

construction, to interpret the claim language. She

said she hasn't read the patents. She's not an expert.

THE COURT: If she feels she's unable to

answer the question, she can say, I don't know.

Overruled.

MR. DEVLIN: Thank you, Your Honor.

BY MR. DEVLIN:

Q. And let me just make one other thing clear,

because I'm really not trying to catch you here, okay?

You're not a patent expert; is that right?

A. I'm not.

Q. Okay. Great.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 137 of 368
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

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:15

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

857

So we're going to talk to someone else who's a

technical expert from Microchip. You know that, right?

A. Yes.

Q. Okay. And then we'll all have a chance to

argue again and tie all this up with the evidence and

the law later on, right?

A. Right.

Q. Okay. Great. Thank you so much.

Another thing we saw is this concept of

truncation.

Do you remember seeing that earlier in the

trial?

A. Yes.

Q. And let's just confirm with you that what we

saw before is exactly happening. So before Mr. Gooden

does it -- he's now hovering over the fourth of those

links in that Active Path. And he's going to click

that. And can you tell us what's going to happen when

he does that? If he clicks that?

A. I don't know. Click it.

Q. What's that?

A. I don't know. Click it.

Q. All right. Let's see.

MR. DEVLIN: Let's click it. All right.

BY MR. DEVLIN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 138 of 368
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

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:16

11:17

11:17

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

858

Q. So one thing happened. We went to a new page,

right?

A. Uh-huh.

Q. Okay.

MR. DEVLIN: Mr. Gooden, if you could

just hit the back button on the browser.

Thank you.

BY MR. DEVLIN:

Q. You see how the link that he hit was called

Peripheral/Core Independent Peripherals?

A. Yes.

Q. Okay. This was on the page we just came from.

And then there was another link in that sequence to the

right of it.

Do you see that?

A. Yes.

Q. Okay.

MR. DEVLIN: So now just hit the forward

button, Mr. Gooden.

Thank you.

BY MR. DEVLIN:

Q. Now, this is the result of that maneuver. We

see that last link in the sequence has now disappeared,

right?

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 139 of 368
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

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:17

11:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

859

Q. Okay. And did you hear that referred to as

truncation before in the trial?

A. You know, I really don't remember that.

Q. That's okay. That's fine.

But we've confirmed that one of those links

has now disappeared when we clicked -- sorry. When we

clicked the fourth link in that sequence in the Active

Path, we went to a new page and the fifth link

disappeared; is that fair?

A. Yeah. That's what we saw.

Q. Great. Thank you so much.

All right. Let's go to the -- that video that

you looked at.

MR. DEVLIN: That was, I believe,

Defendant's Exhibit 463.

BY MR. DEVLIN:

Q. I want to talk about that.

Okay. So this video, just so we're all clear,

this is the Microchip --

MR. DEVLIN: Maybe this starts in and

someone goes to the microchip.com website. There we

go. All right.

BY MR. DEVLIN:

Q. Someone types in microchip.com, and then we're

at the microchip.com main website, right here on this

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 140 of 368
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

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:18

11:19

11:19

11:19

11:19

11:19

11:19

11:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

860

video on the screen right now.

A. Yes.

Q. Okay. And this was at a time when the

microchip.com website also still had those breadcrumbs

with drop-down, right?

A. During the transition we had some of the new

pages and some of the old pages on the website. Yes.

Q. Okay. Thank you.

And so -- and this video's actually, you said,

in that transition, right?

A. Yes.

Q. So some of the stuff might be new, and some of

the stuff might be old, right?

A. That's right.

Q. Okay. So what you did, though, in the

video -- and we can play it -- is we have a menu

structure. And those open up a set of items. And

hovering over one opens up another set of items, right?

A. Uh-huh.

Q. Okay.

MR. DEVLIN: And then you can click on

that, is what happens in the video. All right. Let's

pause there for a second.

Now, if you can run the video back just a

few seconds, Mr. Gooden. Backwards. Right till we get

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 141 of 368
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

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:19

11:20

11:20

11:20

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

861

to there. That's perfect. Click on that. And stop

there.

Awesome. Thank you.

BY MR. DEVLIN:

Q. So what's happened here is the selection's

been made, and we've gone to something that is a new

page, right?

A. Right.

Q. And that page has -- we'll at least agree

right now it's a breadcrumb at some level, right?

A. Yeah.

Q. Okay. And the person making this video, where

their mouse is right now, they left it right in the

middle -- well, they didn't leave it. That was where

they clicked from. That was where the mouse was when

they clicked. So that's why that little hand is still

right in the middle.

Do you see that?

A. Yeah.

Q. Okay. And then what happens in the video is

it kind of goes up, and I think you were making the

point that some of the labeling in what's this -- I'm

going to call it a breadcrumb still, that was different

than the labeling of the selections along the way?

A. That's right.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 142 of 368
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

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

11:20

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

862

Q. Okay. Now, I just want to confirm that you

don't know something. So that's the nature of my next

question, okay?

Is it fair to say that you don't know whether

the issue of those labels matching up has any bearing

on the question of infringement here?

That's not something you know about; is that

fair?

A. I haven't read the infringement document. So

no.

Q. Great. I'm just confirming that you're not

the person to talk to about that.

A. Okay.

Q. So I'll talk to someone else. Okay. Thank

you.

But that was the point you were making, is

that the labels in this -- in this breadcrumb --

A. Yeah.

Q. -- were different than the labels along the

way. That's why you went through this video?

A. Yeah.

Q. Okay. Great.

So I'll talk with someone later about how

meaningful that may or may not be.

A. Okay.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 143 of 368
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

11:20

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

863

Q. All right. All right. Thank you. That's

what I'm getting at.

Now, if we continue this video --

MR. DEVLIN: Is this the end? Maybe

scroll back a few seconds, Mr. Gooden.

And just play the whole thing through

without pausing it.

BY MR. DEVLIN:

Q. There goes that mouse. Just -- whoops.

Sorry.

MR. DEVLIN: Play the whole thing

through. Great.

BY MR. DEVLIN:

Q. So we're playing. There goes that mouse.

It's getting really near those breadcrumbs, but whoever

made this video was very careful not to hover over

them, right?

A. I wouldn't characterize it as that. They just

didn't go up to the breadcrumb.

Q. They just didn't get there?

A. Yeah.

Q. Okay. Fair enough.

If they had gotten to that breadcrumb and

hovered over where it says "USB," what would've

happened?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 144 of 368
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

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:21

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

864

A. They would have seen a drop-down menu.

Q. Okay. So that's an active link then, that

USB, as we've been talking about it this week?

MR. JENSEN: Objection, Your Honor.

Again, this is the claim language.

A. No.

THE COURT: Overruled.

A. No.

BY MR. DEVLIN:

Q. You don't think that's an active link?

A. I wouldn't characterize that as an active

link. No.

Q. You would characterize it as a breadcrumb with

a drop-down?

A. Yeah. It's a static path.

Q. Oh, I'm sorry. Let's talk about that in a

second.

When you say "static path," are you talking

about the collection of the links that make up that

breadcrumb, or are you talking about something

different?

A. Yeah. The code that we enter into the system

to display those links are static.

Q. Got you.

We're going to get to that in a minute, okay?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 145 of 368
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

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:22

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

865

A. Okay.

Q. And what you're -- just so we're clear, what

you're talking about is the collection of those links

that are in a sequence together. That code that puts

those things in there, that's static code.

That's what you're saying?

A. That's right.

Q. Great. We're going to talk about that in just

a moment.

What I'm saying, though, is each of those

links individually, it has functionality right now

other than just clicking on it and going back to the

page that the actual label identifies?

A. They're links. Links go to pages.

Q. Right. You could click through where it says

"USB"; it would take you to a page, right?

A. Yeah.

Q. Okay. But there's other functionality that

that can do. If you hover over it, it has a drop-down,

right?

A. Yes.

Q. And those drop-downs have other selections,

right?

A. Yes.

Q. Okay. Great. That's all I wanted to see if

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 146 of 368
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

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:23

11:24

11:24

11:24

11:24

11:24

11:24

11:24

11:24

11:24

11:24

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

866

we could agree on.

Let's talk about this issue of static and

dynamic, all right?

What do you mean by "static"?

Let's start there. Let's go back to this

issue. Let me be a little more clear here.

We're going to go back to the issue you and I

were talking about a minute ago, which is that this

page has code in it that will define each of those

links in that sequence in that breadcrumb, right?

A. Okay.

Q. Okay. Great.

Now, let me ask you this again. It'll be --

this is one of those making sure you're not the person

to talk to questions, all right?

A. Okay.

Q. You don't know, one way or the other, the

impact of whether -- the way that this breadcrumb is

created with static code, you don't know, one way or

the other, whether that impacts the issue of

infringement here.

That's not you, fair?

A. I'm not an infringement person, attorney,

specialist. No.

Q. Great. Thanks so much.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 147 of 368
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

11:24

11:24

11:24

11:24

11:24

11:24

11:24

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:25

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

867

Okay. Do you remember, one way or the

other -- let me just ask you: If someone on this page,

back at the time this video was created, if they had

clicked Interface and Connectivity -- see that second

link in the sequence?

A. Yes.

Q. If they had clicked that, clicked through,

they would have gone to that page, right, Interface and

Connectivity?

A. I don't know.

Q. You don't know?

A. I don't know because I don't know if that had

a link on it or not. I can't tell from this screen.

Q. Okay. Great. No problem.

Let me just ask you this generally: Remember

in the Forum section when we clicked one of those links

that went to a page and the rest of the sequence of

links to the right was eliminated?

Do you remember that?

A. Yes.

Q. Did the main website, not the current version,

not the redesigned version, but the -- what we call the

original or older version, would that eliminate

right-hand links and the sequence in the same way?

Do you remember that?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 148 of 368
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

11:25

11:25

11:25

11:25

11:25

11:25

11:25

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

868

A. I don't remember if it did or not.

Q. Okay. If Mr. Sherwood had said that he'd seen

that happen, would you, sitting here today, be in a

position to say he was wrong?

MR. JENSEN: Objection. This calls for

speculation, something that their expert didn't even

say, and she already said she didn't know.

THE COURT: Sustained.

MR. DEVLIN: I'm not sure that's fully

accurate, but we shall see.

Okay. Let's talk about -- let's talk

about me taking off my glasses and reading my notes.

BY MR. DEVLIN:

Q. You said that you're very familiar in your --

I wrote that down, that's a quote -- "very familiar"

with the microchip.com website.

Do you remember that?

A. That's right.

Q. Okay. And that's because you -- you're on it

regularly, I take it?

A. That's right.

Q. And I suppose a lot of Microchip employees go

to that website to get information; is that fair?

A. That's right.

Q. Okay. And that happens in a testing process

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 149 of 368
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

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:26

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

869

before you roll out any new page, right?

A. That's right.

Q. That happened for the redesign certainly,

correct?

A. Yes.

Q. And it happened for the -- when you went from

those side links to what we're calling the original

version, people would have tested that at some point?

A. You know, that happened right before me. So I

wasn't as familiar with that as I am with the rest of

the functions of the site.

Q. Sure. And I wasn't trying to get at the

function.

I'm just saying, whenever you're going to roll

out some new version, it's going to get tested, fair?

A. Yeah.

Q. And then as you said, just in the normal

course of activities, you and others at Microchip will

go to the microchip.com website for a variety of

reasons, fair?

A. That's right.

Q. Thank you.

Let me talk about this issue of servers, okay,

and the location of stuff and how all this works, okay?

A. Uh-huh.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 150 of 368
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

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:27

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

11:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

870

Q. And let me just make sure I understand it and

that the record's clear. I think we're going to be

agreeing on a lot on this one, but you let me know if

we're not, okay?

A. Sure.

Q. Thanks.

So the way that the sort of architecture of

what's happening is there's a microchip.com server or

set of servers in the U.S., right?

A. There are many. Yes.

Q. Okay. And when you're going to make any

update to the code, what happens is it happens on the

microchip.com server and then it gets pushed out to

these Akamai servers, right?

A. Yes.

Q. Okay. So the code starts -- and by the way,

the code I'm talking about is the -- what we've heard

as HTML code, but in general what we're talking about

is the stuff that's going to go down to a user's

browser.

That's the code we're talking about now,

right?

A. That's some of it. Yes.

Q. Okay. Can -- when you say "that's some of

it," what do you mean?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 151 of 368
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

11:28

11:28

11:28

11:28

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

11:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

871

A. Well, some of the code stays on the server

side and some of it, you know, goes out to the client

side. Most of the site goes client side, which is any

laptop or, you know, a tablet. You have your phone.

Q. Thanks.

So microchip.com will also push out to Akamai

stuff that might stay on Akamai servers, you mean, is

what you're saying?

A. Most of it. Yeah.

Q. Great. And will also push out to Akamai the

code that will go down to the client device, the

browser, laptop, whatever, right?

A. Yeah.

Q. Okay. So the point of all this is to say it

starts at the microchip.com server. The microchip.com

server provides that code to the Akamai servers. Or to

Akamai; Akamai may distribute it to its servers, right?

A. Yeah. So we maintain our code on servers so

that we can keep a true record of what we have. And

then we share that code. We copy it out to all of

Akamai's servers worldwide. So when you're in another

country, you go to a local server.

Q. Thank you.

And so you just said something where I was

going in a minute, which is that Microchip controls the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 152 of 368
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

11:29

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

11:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

872

code. You know, Akamai's not making edits to

microchip.com website, the content of it, right?

MR. JENSEN: Objection. Relevance, Your

Honor. This goes to a joint infringement issue, which

is not in the case.

MR. DEVLIN: It actually goes to the

opposite. Its goes to direct infringement, which is in

the case.

THE COURT: Overruled.

MR. DEVLIN: Thank you.

A. Could you repeat the question?

BY MR. DEVLIN:

Q. Sure. And I'm sorry. Something's in my

throat, and I don't want to cough too loud on

everybody.

Where was I? Oh, Microchip is the entity that

controls the content and layout and design of its

website. You guys make those changes, and you make

them on the microchip.com servers here, right?

A. We write the code that gets copied to the

Akamai servers.

Q. Got it. And it gets copied from the

microchip.com servers here in the U.S., correct?

A. Yeah.

Q. Thank you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 153 of 368
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

11:30

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:31

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

873

All right. Is it fair to say that you're not

the person to talk to about the legal consequences of

that with respect to this case?

A. Yes.

Q. Excellent.

I want to talk about --

MR. DEVLIN: If we could pull up

Plaintiffs' Exhibit 96.

Thank you. And if we could go to page --

BY MR. DEVLIN:

Q. Oh, sorry. Let's center ourselves. This is a

Microchip presentation you spoke about on your direct

testimony, right?

A. Yeah. I believe so. I can't see where

Grace's name is, but I believe so.

Q. Okay.

MR. DEVLIN: And let's go to Page 36,

Mr. Gooden.

BY MR. DEVLIN:

Q. Do you remember this page?

A. Yes.

Q. Okay. And I want to talk about this

annotation about --

MR. DEVLIN: Yeah. Right there.

BY MR. DEVLIN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 154 of 368
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

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

11:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

874

Q. So let me talk first --

MR. DEVLIN: Actually, you can put that

down for a second, Mr. Gooden. I'm sorry. I jumped

the gun.

BY MR. DEVLIN:

Q. I want to talk a little bit first about this

document. This document was created in, I think it was

sort of the first half of 2019, if I saw.

Does that sound right?

A. I think it's the fall of 2018.

Q. Fall of 2018, so a little earlier. Okay.

And this was created as part of Microchip

thinking about what it's going to do with its website,

right?

A. With microchip.com?

Q. With microchip.com.

A. Yes.

Q. And it's fair to say that's a big deal,

correct?

A. Yes.

Q. It's a big decision to be made, right?

A. Yes.

Q. Lot of people involved?

A. Yes.

Q. Business purpose going on here?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 155 of 368
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

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

11:33

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

875

A. I'm sorry. Business --

Q. There's a business purpose to having this

conversation?

A. Yes.

Q. Okay. And as part of that, someone put in

this presentation this statement about what revenue

microchip.com drives through the e-commerce portal,

right?

A. Yes.

Q. Now, at least at the time of your deposition

you weren't really sure where that came from, right?

A. I'm still not exactly sure where that number

came from.

Q. Haven't gone back and -- did you try to

investigate further after your deposition?

A. Yes.

Q. You did. Still couldn't figure it out?

A. No.

Q. Okay. That's all right.

So but I think we can agree that whoever did

it knew that this was a big deal, what people were

trying to do with the website?

A. Yes.

Q. All right. And they were going to work hard

and do their best to try to give accurate information

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 156 of 368
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

11:33

11:33

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:34

11:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

876

to the decision makers; is that fair?

A. You know, sometimes our management doesn't

want to spend money. So sometimes you have to tell the

best-case scenario. So yeah. They would have used

their best estimate on the information.

Q. Right. So you mean the person doing this is

going to give their best estimate?

A. Yeah.

Q. Yeah. Thank you. Okay.

MR. DEVLIN: And let's pull that up now

again, Mr. Gooden.

BY MR. DEVLIN:

Q. This is this $215,000 a day that microchip.com

drives through the e-commerce portal.

Do you see that?

A. I see that. And that number seems a little

high to me for that time frame. We get to have

quarterly meetings where the CEO will stand up and talk

to us, and they'll tell us about our sales and how

we're doing with the competition and that kind of

thing.

So over time I've seen sales numbers. And

that number seems a little bit high to me. It must

have been the best days of the previous time period

that was used to come up with the number.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 157 of 368
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

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

11:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

877

Q. Okay. You say it must have been. Are you

sure about that?

A. Yeah. Because you want to make the best case

you can to get funding for a project you want to do.

So you want to use the information you can use, right?

Q. What I'm trying to confirm is, I think you

just said this must have been the highest time period

of the revenues for the -- for what was going on.

Did I understand you right?

A. It seems pretty high to me. Yeah.

Q. It seems high to you. You didn't do this

work?

A. No.

Q. This was not your work?

A. No. I believe it was Grace Ramon.

Q. What's that?

A. I believe it was Grace Ramon, the person

before me.

Q. Grace Ramon. She's not -- she's no longer

with the company?

A. That's right.

Q. I see. Okay.

Do -- you still ever in contact with her?

A. No. I'm not.

Q. She's not. Did you ever try to get in contact

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 158 of 368
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

11:35

11:35

11:35

11:35

11:35

11:35

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:36

11:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

878

with her during the case?

A. No. I haven't.

Q. You don't know if she's alive and well or

anything like that?

A. No. I don't.

Q. Okay. Thank you.

You, in your direct, you mentioned a lot of

money that Microchip makes that has nothing to do with

the Internet?

A. That's right.

Q. Right? Bulk orders from big companies where

you've got other highly-detailed and sophisticated

sales channels that do not require going onto

microchip.com at all; is that fair?

A. That's fair.

Q. Okay. And now you understand that none of

that sort of revenue is even being looked at for

purposes of damages in this case?

A. That's right.

Q. Okay. The only revenue that's being looked at

for purposes of damages is this revenue that

Microchip's own documents identify as being driven from

microchip.com through the e-commerce portal.

You understand that, correct?

A. I understand.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 159 of 368
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

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:37

11:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

879

Q. Okay. Just to be clear, the e-commerce portal

is microchipdirect.com, correct?

A. That's right.

Q. Okay. Thank you.

A. Can I make another comment on this slide?

Q. Well, let me try to move on, ma'am, because

your attorney's going to have a chance to do that.

A. Okay.

Q. I just have limits on my time.

A. Sure.

Q. I'm going to try to move myself along.

A. Thank you.

Q. Yeah. But I'm not trying to hold you back, so

I encourage your lawyer to come up and ask you about

that, and then you clear it up on his time.

Is that okay?

A. Sure. Uh-huh.

Q. Thank you. Thank you so much.

Let's talk about growth for a second while we

have this up. You're saying that before late 2018 or

early 2019, whenever this document was from, before

then the company was growing, right?

A. Uh-huh.

Q. And I think you said it has three times the

revenue from 2014 now; is that right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 160 of 368
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

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:38

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

880

A. That's right.

Q. Okay. Now, did all of that growth happen

between 2014 and 2018?

A. No.

Q. Okay. So after this number was identified and

placed in this business-oriented document, the company

continued to grow?

A. Well, let me correct what I just said. Most

of the acquisitions, as I understand it, were --

financially, the paperwork was completed by the end of

2018, I believe. But yeah, the company continued to

grow after 2018.

Q. Okay. Thank you.

Bear with me. When I'm looking down and

crossing something off, that means we're moving faster.

So please bear with me.

Thank you.

A. I'm sure the juries appreciate that too.

Q. During your direct testimony you mentioned --

MR. DEVLIN: Thank you, Mr. Gooden.

BY MR. DEVLIN:

Q. You mentioned that the purpose of

microchip.com was informational. Remember that?

A. Yes. That's right.

Q. What'd you mean by that?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 161 of 368
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

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:39

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

881

A. We provide a lot of information, you know. I

told you that each silicon chip has a datasheet, and

sometimes they have another document called an errata.

And the errata is just corrections to the original

document.

Well, we have like 40,000 documents on our

website. It's huge.

Q. And lots of other pages as well, fair?

A. Web pages, in addition to the documents.

Q. Got it. Thank you.

Okay. And the purpose, though, is to be a

resource of information for --

A. Right.

Q. -- customers and potential customers?

A. That's right.

Q. Thank you.

And, you know, that was my fault. I paused in

the middle of that question, so I apologize for that.

You mentioned some problems. You had the old

house that's about to collapse, and then you got the

new house. Remember that?

Okay.

And you had identified a bunch of problems,

loading issues, stability of the code. Remember that?

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 162 of 368
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

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:40

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

11:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

882

Q. Those existed before the transition to what

we're calling the original website here, what's accused

on the main web page, right?

A. Those problems have happened prior to the coat

of paint and throughout the coat of paint, until we

redesigned the site.

Q. Understood. That's exactly what I'm getting

at though.

A. Yeah.

Q. All right. Thank you. That's great.

You talked about why you implemented -- let

me -- let's find words that you're okay with, okay?

A. Okay.

Q. We -- on the redesigned main website, which is

the current version, there's a breadcrumb, correct?

A. Yes.

Q. And it has no drop-down functionality, right?

A. Yes.

Q. And in the original version of the main

website, there was what we called a breadcrumb and it

had drop-down, right?

A. The coat of paint site had that. Yes.

Q. Okay. Give me a word that you're comfortable

with for that functionality, where you have a

breadcrumb that has drop-down. I just want a label

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 163 of 368
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

11:41

11:41

11:41

11:41

11:41

11:41

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

883

that we can use as we discuss it.

A. Yeah. Let's just use breadcrumb. Everybody

else seems to understand that.

Q. Well, I need to distinguish between

breadcrumbs that don't have a drop-down versus ones

that do. And that's what I'm trying to find a label

for that --

A. Well, let's call it a secondary navigation.

Q. Okay.

A. Is that okay?

Q. Are breadcrumbs in general an example of

secondary navigation?

A. You could call them that.

Q. So then that's not going to work, because I

need something that's going to distinguish between

breadcrumbs that don't have drop-down and breadcrumbs

that do.

How can we label for us, in a way that you're

happy, the breadcrumbs that do have drop-down that

distinguishes it from the breadcrumbs that don't?

A. What do you want to call it?

Q. How about breadcrumb with drop-down? Is that

okay?

A. That sounds fine.

Q. All right. We'll do that.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 164 of 368
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

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:42

11:43

11:43

11:43

11:43

11:43

11:43

11:43

11:43

11:43

11:43

11:43

11:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

884

I don't want to create a label that your

counsel's going to get upset with. That's what I'm

trying to do, okay?

A. Okay.

Q. Breadcrumb with drop-down. All right.

So I think you said in your direct that you

decided to implement breadcrumb with drop-down because

it was happening on some sites; is that right?

A. That's right.

Q. You were going to try it out. That's what you

said?

A. That's right.

Q. Okay. Now, fair to say that Microchip is a

sophisticated company?

A. Yes.

Q. All right. You're not -- you don't just copy

things for fads; is that fair?

A. I don't copy things for -- what was that word?

Q. Fad, f-a-d? Frank, Ann, David.

A. Oh, fad.

Q. Fad.

A. So with the Internet, you try different

things. There's so many changes. And honestly, you

just have try it out to see if it's going to resonate

with your customers.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 165 of 368
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

11:43

11:43

11:43

11:43

11:43

11:43

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

11:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

885

Q. Okay. But would you agree or disagree? Would

you say that Microchip goes along with fads, or would

you say that's not really a fair way to put it?

A. That's not a fair way to put it.

Q. Thank you.

Let's talk a little bit -- sorry to hop

around, but I want to go back to the Forum section a

little bit.

And you had mentioned that Microchip didn't --

doesn't write the software. You acquired this software

package; is that right?

A. Right. We purchased the software license.

Q. Okay. When you say "purchased the license,"

that's from that ASP Playground?

A. That's right.

Q. Thanks so much.

Now, what they give to you is not exactly what

the Forum section looks like, right?

A. It's a software package.

Q. And then -- but Microchip has to make some

choices and to modify it in certain ways for your own

purposes, correct?

A. There's some what they call configurations.

Q. Thank you. That was the word I was going to

use next.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 166 of 368
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

11:44

11:44

11:44

11:44

11:44

11:44

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

11:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

886

So what happens is they give you a software

package of that certain functionality, and then

Microchip configures that software package for its use,

correct?

A. I understand it -- I understand that to be

true. I don't work a lot -- I've never worked in Forum

code. So I don't know exactly what they did.

Q. Great. And I won't ask you, because you're

not the, you know, the person responsible for it, but I

just wanted to confirm that that does, in fact, happen

and it did, in fact, happen here.

Without going into the details of how it was

configured, Microchip did configure that Forum software

for its purposes here, right?

A. We would have added things like the Microchip

logo and names of categories in the system.

Q. Names of the categories like that appear --

A. Uh-huh.

Q. -- on those links and so forth, right?

A. That's about it.

Q. Okay. Thank you.

How long have you known about the Salesforce

option?

A. Maybe just the last few months.

Q. Uh-huh. Were there other Forum -- you've seen

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 167 of 368
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

11:45

11:45

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:46

11:47

11:47

11:47

11:47

11:47

11:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

887

other Forums available on the Internet over the years?

A. Yeah.

Q. Okay.

A. But only recently, I should add that. I

haven't really looked into that software before.

Q. You haven't looked into Forum software

specifically for Microchip before.

Did I get that right?

A. That's right. That's what I mean.

Q. Thank you.

That $215,000-a-day number, that appears on at

least one other report that was circulated during that

period of investigating or evaluating the redesign,

right?

Remember that?

A. I remember it on two presentations, but they

were both done by Grace Ramon.

Q. Okay. Thank you.

We've talked about the server for the

microchip.com main page.

Now, the server for the Forum section in the

same way, that's also in the United States, right?

A. Let me think. The Forums software, I believe,

is hosted on Microsoft operating system servers in

Chandler.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 168 of 368
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

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:48

11:49

11:49

11:49

11:49

11:49

11:49

11:49

11:49

11:49

11:49

11:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

888

Q. Chandler, Arizona?

A. Arizona.

Q. Okay. And do you use Akamai to serve that or

host that at all?

A. I don't know.

Q. You don't know?

A. I don't use that system.

Q. Okay. But it at least starts in -- or it's

hosted primarily at, you know, at the outset, at the

start of -- the center of the architecture, as it were,

in Chandler, Arizona?

A. Yes. I believe so.

Q. Thank you.

I want to talk about the process of the

redesign and the implementation of that --

A. Sure.

Q. -- over time.

Okay. So you're aware that even as of

November or December of last year there were still

pages that had not been redesigned?

A. It's possible that some of the old pages could

have still been on the Internet.

MR. DEVLIN: If we could look at

Plaintiffs' Exhibit 35, which I believe is in evidence.

BY MR. DEVLIN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 169 of 368
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

11:49

11:49

11:49

11:49

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

11:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

889

Q. Do you see this is --

MR. DEVLIN: If we could just pull up

that -- and whole photo. Yeah.

Actually, I'd love the -- there we go.

Thanks.

BY MR. DEVLIN:

Q. So you recognize this as a page from

microchip.com website, right?

A. The old website.

Q. The old -- what we're calling the original or

old website, right?

A. That's right.

Q. Okay. Great.

And are you aware -- you heard Mr. Sherwood

say that when he was investigating in November or

December of last year, he found at least 100 or so

pages that actually functionally still worked like

this.

Do you remember that?

A. Yes. And I have no reason to doubt that.

But, you know, you're talking about a website with

25,000 pages. So there could have been a few pages

left.

Q. Sure. Okay.

And is it -- is the thought that this has been

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 170 of 368
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

11:50

11:50

11:50

11:50

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

890

redesigned since then; so in other words, now all of

these pages have been shifted to the new redesigned

format?

A. I believe so. I believe they're all

substantially done. There may be applications that go

around the website, you know, like the Forums, that are

not -- that are not at the new -- but when I talk about

microchip.com, I'm talking about the core of the

website itself.

Q. Okay. Like this page right here that we're

looking at?

A. Yes. This page is.

Q. Okay. So this page would have been redesigned

by now?

A. Yes.

Q. Okay. And in the redesign, it will have a

breadcrumb that does not have the drop-down, right?

A. That's right.

Q. Okay. Were you here during the openings?

A. Yes.

Q. Opening statements?

A. I think so.

Q. And I said there were some pages that hadn't

quite been redesigned in that way.

Do you remember that?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 171 of 368
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

11:51

11:51

11:51

11:51

11:51

11:51

11:51

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

11:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

891

A. I remember you saying that. I don't remember

what pages you were referring to.

Q. Okay.

MR. DEVLIN: Mr. Gooden, are we able to

go to this exact page here?

BY MR. DEVLIN:

Q. Let me ask you: So here we are on the -- do

you recognize this as the same page we were just at?

A. Yes.

Q. Okay. And the breadcrumb would exist below

that sort of image and above where it says "MCU/MPU

Development Tools," right?

A. Yes.

Q. And it's not there?

A. Yes. But as I look at this URL, it's not

formed correctly. It doesn't have en-us. This must be

a page that we did in the interim that is still on the

site, but it doesn't -- it's not the final version.

Q. That's exactly my point. So this is not

redesigned in the same way that many, many of the other

pages have been redesigned, as we've been talking about

during this case, right?

A. Well, it's not exactly true. With the

development tools pages in that section, we actually

changed the URL layout. And they were -- they started

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 172 of 368
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

11:52

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

11:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

892

out pretty early on, and we didn't have the en-us in

it.

And so when we went that route, when we

decided, okay, we're going to do international sites,

so we need to prepare ahead of time and put en-us in

it, so this one would have been kind of a precursor to

what we ended up with.

Q. So your thought is that this document --

A. Uh-huh.

Q. -- was converted earlier -- very early in the

redesign stage?

A. Yes.

Q. Okay. Rather than it being available in

November or December of this year?

A. Well, I don't know if it's still available or

not. It was just designed earlier.

Q. Okay. I see. But what we're seeing, though,

is that this has no breadcrumb at all. That's been

either stripped out or commented out, right?

A. Or it never was put in.

Q. Well, we just saw the same page where it was

in there.

A. Oh, yes. You're right. Well, that was the

old site, and this is the new site.

Q. That's what I mean. So in the new site what's

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 173 of 368
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

11:53

11:53

11:53

11:53

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

893

happened is, page looks the same --

A. Uh-huh.

Q. -- but the entire breadcrumb, active or not,

has been either stripped out or commented out, right?

A. It's not displaying on the page. Yes.

Q. Okay. And the reason it's not displaying is

because the software code is not executing to display

it, right?

A. Yes.

Q. And the reason that's happening or not

happening is because that code that would display it

has either been deleted or commented out?

A. Well, that would be a question for a software

developer.

Q. One or the other, right?

A. It would be a question for a software

developer.

Q. There's no code executing to put the active --

A. I don't know --

MR. JENSEN: Objection. Asked and

answered.

THE COURT: Yeah.

Ladies and gentlemen, we're going to take

our lunch break.

MR. DEVLIN: Thank you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 174 of 368
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

11:54

11:54

11:54

11:54

11:54

11:54

11:54

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:55

11:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

894

THE COURT: If you all would remember my

instructions not to discuss the case amongst

yourselves. We'll try to start at, as best we can, by

1:15 or so. Thank you.

THE BAILIFF: All rise.

(Jury exited the courtroom.)

THE COURT: Thank you. You may be

seated.

Mr. Devlin, is there anything we need to

take up?

MR. DEVLIN: I think we wanted to

organize our exhibits to correct the errors that we had

made yesterday. And we also have the exhibit list that

was used this morning with Mr. Blok.

THE COURT: Okay.

MR. DEVLIN: And as I understand it, we

used both of these -- all of these exhibits now have

been agreed upon by both sides. And we got our ducks

in a row.

So on the first issue, yesterday we

offered Plaintiffs' 13 and Plaintiffs' 478. And those

are being withdrawn. Plaintiffs' 13 and Plaintiffs'

478.

And then what I should have said

yesterday for those was Defendant's 189 and Defendant's

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 175 of 368
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

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:56

11:57

11:57

11:57

11:57

11:57

11:57

11:57

11:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

895

478.

MR. JENSEN: And, Your Honor, we object

to Defendant's Exhibit 478.

MR. DEVLIN: Your Honor, Defendant's

478 -- thank you for that. My apologies.

Defendant's 478 is the one where -- it's

the -- it's the live website. And so the parties are

going to talk about that and try to propose something

jointly to the Court about how to deal with that.

THE COURT: Okay.

MR. DEVLIN: And then today with Mr. Blok

we have Joint 15, Joint 16, Joint 17, Joint 18, Joint

19, Joint 21, Joint 104, Defendant's 467, and

Plaintiffs' 96.

And I'm going to apologize now. I'm not

sure if that has been deduped with what had already

been admitted previously. But that was what was used

with Mr. Blok.

THE COURT: Any objections?

MR. JENSEN: I'd like to double-check on

some of those. But we can talk about that. I'm not

aware at this moment. I've just got that list right

now. So...

MR. DEVLIN: Well, that's fine. That's

not quite right. They've had the list, and my

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 176 of 368
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

11:57

11:57

11:57

11:57

11:57

11:57

11:57

11:57

11:57

01:25

01:25

01:25

01:25

01:25

01:25

01:25

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

896

understanding is they're okay with it. But we'll deal

with it, Your Honor.

THE COURT: Just let us know. Okay.

Anything else?

MR. DEVLIN: Nothing from the plaintiff,

Your Honor. Thank you.

THE COURT: Okay.

THE BAILIFF: All rise.

(Recess taken.)

THE BAILIFF: All rise.

THE COURT: Please remain standing for

the jury.

(Jury entered the courtroom.)

THE COURT: Thank you. You may be

seated.

Mr. Devlin?

MR. DEVLIN: Thank you, Your Honor. May

it please the Court.

BY MR. DEVLIN:

Q. You all set, Ms. Mahar?

A. I think it's good. Can you hear me?

Q. Yeah. Thank you.

A. Great.

Q. Let's just finish off where we -- or finish up

where we left off, just to clear that up. So we had --

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 177 of 368
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

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:26

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

897

MR. DEVLIN: I don't know if you can pull

that screen up again, Mr. Gooden.

BY MR. DEVLIN:

Q. We're not going to delve into the details, but

I just want to center our minds on what we were looking

at.

So as I understood it, we agree that there's

no breadcrumb at all on this particular page which is

current. It's what we're looking at live; is that

right?

A. So I don't see it on the page. But it doesn't

mean it wasn't in the code.

Q. Right. If it's in the code, you can comment

it out?

A. That would be a question for a software

developer.

Q. Right. I'm just saying you know what

commenting out is. I'm not -- I know you can't confirm

what happened with this page. But I just want to talk

about what that is. Let me just try it and you see if

you agree.

Commenting out is when you convert something

that can be executed or interpreted in code. And

instead you put a little syntax in front of it, and

then it looks to the computer like a comment that it's

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 178 of 368
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

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

01:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

898

not going to execute; is that right?

A. That would be a question for the software

developer.

Q. Okay. You've used that term, "commented out,"

right?

A. Yes.

Q. So that's what I'm saying. I'm just

confirming that's one way that one can do something

with code so that it doesn't execute. You can comment

it out, right?

A. Yes. But I don't know if that's what happened

here.

Q. I understand that.

A. Okay.

Q. I'm just trying to confirm that we all know

what commented out means --

A. Okay.

Q. -- and what that says. Okay. Awesome.

Great.

So the breadcrumb code might be in there

somewhere but commented out or it might be gone. You

don't know?

A. I don't know.

Q. Great. But we can agree it's not executing.

There's no breadcrumb on the page that we see, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 179 of 368
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

01:27

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

01:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

899

MR. JENSEN: Objection, asked and

answered. Calls for speculation.

THE COURT: Sustained.

MR. DEVLIN: Thank you.

BY MR. DEVLIN:

Q. So, if I heard you right before, the -- what

your thought was, was that this would have been a page

that had been redesigned early on before you made some

decisions about putting in that en.us (sic) snippet?

A. Yes. That's right.

Q. Okay. Thank you.

MR. DEVLIN: We can take that down.

BY MR. DEVLIN:

Q. I want to circle back and just get another

little bit of information about something we talked

about before, which was the sales that are driven by

microchip.com to microchipdirect.com.

Are you with me?

A. Sure.

Q. Okay. And the relationship between that and

the different versions of the website over the years.

Remember that?

A. Okay.

Q. Okay. Great.

And so I think you said that when the new

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 180 of 368
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

01:28

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:29

01:30

01:30

01:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

900

version of the website came online, that the sales went

up a lot?

A. No. What I said was that the sales went up a

lot from 2014 to 2020 and even today over time.

Q. Okay. Thank you.

And I'm glad we cleared that up because

there's -- that's a separate issue in my mind, I think.

So let me know. I thought you had said something like

when the conversion was made to the redesigned website,

that that also caused the sales to go up.

But did I misunderstand that? Maybe I made it

up.

A. I don't recall saying that.

Q. Okay. Thank you.

You mentioned that, to your knowledge,

Microchip would never willfully infringe anyone's

patents.

Did I get that right?

A. Yes.

Q. Okay. Now, I know Microchip hired litigation

counsel, obviously.

Are you aware of whether Microchip ever hired

something called "opinion counsel" to provide an

independent legal opinion about infringement?

Are you aware of anything like that?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 181 of 368
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

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:30

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

901

A. That would be a question for the attorneys.

Q. Okay. So you're not aware of it, is what I'm

saying?

A. No.

Q. Okay. Thank you.

How's the reception been in the community, the

user community, to the redesigned website?

A. So we don't hear compliments a lot. We hear

complaints. But this time we heard some compliments.

Hey, that site loads fast. Thank you so much. And I

can find what I need to find. Thank you so much. The

search is working great, so much improved. Things like

that.

MR. DEVLIN: Let's go onto the Forum

website now.

BY MR. DEVLIN:

Q. And we can see -- so this is live on the

Forums website.

And do you see this is -- this is how the

Forum works. There's posts. Someone can make a post,

right?

A. Correct.

Q. And then others --

MR. DEVLIN: If you just scroll,

Mr. Gooden.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 182 of 368
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

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:31

01:32

01:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

902

BY MR. DEVLIN:

Q. Others can respond to that post and, you know,

comment back or ask questions or whatever. That's how

Forum looks, right?

A. Correct.

Q. This is a typical page from the Forum website?

A. Correct.

Q. Great. Okay.

And this one is a page where someone was

making this first comment on November 16th, 2020.

Do you see that?

A. Yeah.

Q. Okay. And it looks like they're -- in this

first post, they've got some thoughts here. And then

about eight lines downs there's a word that says

"recently," right near the bottom of that post.

MR. DEVLIN: Hold that, Mr. Gooden.

BY MR. DEVLIN:

Q. Now, I think you said that the start of the

implementation of the redesign was in June 2020; is

that right?

A. That's right.

Q. Okay. So here we're in November 2020, but it

was gradual. Is that what you said, over time?

A. Yeah.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 183 of 368
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

01:32

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

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)

903

Q. Okay. And so this poster is saying:

Recently, I tend to have the impression that it has

become more difficult to find information on the

Microchip website.

You see that?

A. Yes.

Q. Okay. Let's go to another one.

MR. JENSEN: Objection, Your Honor. This

is hearsay. He's just reading third-party comments off

the Internet.

MR. DEVLIN: Well, they've made an issue

of the reaction, and we're not here for matters

asserted. This is people's reactions.

THE COURT: Sustained.

MR. DEVLIN: Thank you.

BY MR. DEVLIN:

Q. Have you seen any other negative comments?

A. Oh, I'm sure there have been some that have

come in.

Q. Okay.

A. You know.

Q. That's it? Some that have come in?

A. Yeah.

Q. All right. You've seen that happen?

A. Uh-huh.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 184 of 368
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

01:32

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

01:33

01:33

01:33

01:33

01:33

01:33

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

904

Q. All right. Thank you so much.

MR. DEVLIN: Nothing further.

REDIRECT EXAMINATION

BY MR. JENSEN:

Q. I have just a couple of follow-up questions

for you, Ms. Mahar.

You were asked some questions about the Forum

website at the beginning of Mr. Devlin's questioning,

where he pulled up the site on the screen.

Do you recall that?

A. Yes.

Q. And he kind of navigated some links?

A. Yes.

Q. And the software for the Forum website is

provided by a third party, correct?

A. Yes.

Q. And that's ASP Playground?

A. Yes.

Q. And that's not Microchip software?

A. No.

Q. Okay. And your primary responsibility at

Microchip is not for the Forum website, is it?

A. That's correct.

Q. And you don't regularly use the Forum website

as part of your job?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 185 of 368
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

01:33

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

01:34

01:34

01:34

01:34

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)

905

A. No. I don't.

Q. And you're not here to testify today about the

issue of infringement in this case, are you?

A. No. I'm not.

Q. And we haven't heard yet from Mr. Tittel,

Microchip's technical expert, have we?

A. No. We haven't.

Q. And Mr. Devlin didn't walk through with you

the claim elements like he did with Mr. Sherwood over

an extended period of time?

A. No.

Q. And you haven't performed any analysis or

prepared any opinions on the patents in this case, have

you?

A. No.

Q. And you're not a patent expert?

A. No.

Q. All right.

A. No.

MR. JENSEN: Mr. Thompson, could we pull

up Defendant's Exhibit -- I believe it's 463, the

video?

BY MR. JENSEN:

Q. And Mr. Devlin asked you, I think, some

questions, Ms. Mahar, about what he called "labels."

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 186 of 368
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

01:35

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

01:35

01:35

01:35

01:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

906

A. Yes.

Q. Okay. I'd like to ask just one or two

follow-up questions on that topic once we get the

video.

MR. JENSEN: Okay. There we go. Thank

you.

And could you just play the video one

time through, Mr. Thompson?

(Video played.)

BY MR. JENSEN:

Q. And while this is playing, please just watch

the path that is selected, Tools and Software, Embedded

Software Center, MPLAB® Connect Configurator.

MR. JENSEN: Okay. And you can just

pause it there.

BY MR. JENSEN:

Q. And the resulting menu path includes links for

Home, Interface and Connectivity, USB, and then MPLAB®

Connect Configurator.

Do you see that?

A. Yes.

Q. If you were to click on, for example, the USB

link, would that load any of the pages that were

previously navigated?

THE COURT: Counsel --

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 187 of 368
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

01:35

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

01:36

01:36

01:36

01:36

01:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

907

MR. DEVLIN: Objection. Calls for

speculation. She said she doesn't know.

THE COURT: Why don't you ask her if she

knows, and then that'll take care of at least the

objection, and we'll go from there.

BY MR. JENSEN:

Q. Ms. Mahar, do you know what page would load

if -- strike that. Let me ask the question this way.

Would a USB page load if someone were to click

on the USB link?

A. Yes.

Q. Okay. And a USB page was not one of the links

that was navigated by the user?

A. That's right.

Q. Okay.

MR. JENSEN: No further questions.

THE COURT: Mr. Devlin?

RECROSS-EXAMINATION

BY MR. DEVLIN:

Q. You don't know who made that video, do you?

A. No.

Q. Okay. There are many, many, many, many

hundreds of such progressions one can make through the

main website through the different options in the

various levels of the hierarchical menu structure,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 188 of 368
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

01:36

01:36

01:36

01:36

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

01:37

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)

908

right?

A. Like any website, there's lots of ways to get

to different pages, yes.

Q. Right. What I mean is there's lots and lots

of pages, is what I'm saying.

A. Yeah. Our website's -- is huge.

Q. Okay. Got it.

And the point, I guess, here is for this

particular website, it doesn't look like these things

line up.

Did I get that right?

A. Yes.

Q. Okay. Now, for some of them, they would line

up?

A. If we made them that way.

Q. All right. And you did make them that way for

some of them?

A. Yes.

Q. All right. Thank you.

MR. DEVLIN: Nothing further.

MR. JENSEN: No further questions.

THE COURT: You may step down, ma'am.

Who's your next witness?

MR. JENSEN: Microchip calls Mr. Ed

Tittel.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 189 of 368
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

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:38

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:39

01:40

01:40

01:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

909

Before Mr. Tittel takes the stand, could

we confirm with the plaintiff that their case-in-chief

is now closed?

MR. DEVLIN: Subject to the issues we

raised before, Your Honor, yes. Our direct case is

closed.

Thank you.

(The witness was sworn.)

DIRECT EXAMINATION

BY MR. JENSEN:

Q. We're getting you a binder, Mr. Tittel.

Please bear with us just one moment.

Good afternoon, Mr. Tittel.

A. Good afternoon.

Q. Could you please state and spell your name for

the record?

A. Sure. My name is Edward Tittel. E-d-w-a-r-d

T-i-t-t-e-l.

Q. Where do you reside?

A. I reside in Round Rock, Texas.

Q. And what do you do for a living?

A. I'm a writer, consultant, and a part-time

expert witness.

Q. Do you work for a company?

A. No, sir.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 190 of 368
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

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:40

01:41

01:41

01:41

01:41

01:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

910

Q. Are you on your own, so to speak?

A. I'm pretty much self-employed. That's right.

Q. Mr. Tittel, do you have a resume?

A. I do.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you pull

up Mr. Tittel's resume, please?

BY MR. JENSEN:

Q. And while that's coming up, let me just ask

you. What -- well, how long have you been kind of

self-employed, as you put it?

A. With a couple of small gaps, since 1994.

Q. And without going too far back into ancient

history, at a very high level, what were you doing kind

of prior to that time?

A. You mean prior to 1994?

Q. Yeah.

A. I was working as a software developer and as a

training developer and a slide jockey for a variety of

different companies.

Q. Let me kind of ask -- well, first off, is this

a copy of your resume that we see on the screen?

A. Yes. It is.

Q. And I'm not going to walk through all of the

kind of prior work experience, et cetera, that you

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 191 of 368
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

01:41

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

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

01:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

911

have. But I did want to ask kind of, you know, what

were you doing in the, let's say, early 2002 time frame

when the patent application in this case was filed?

A. In the period from the late '90s through 2002,

I was involved in writing books and in developing

courses. I was also an adjunct member of the faculty

at Austin Community College for whom I developed a

four-course sequence for a webmaster certification.

Q. And your mention of the community college

reminded me, I did want to ask a little bit about your

kind of academic background.

Do you have some academic credentials that are

listed in your resume?

A. I do.

Q. Okay.

MR. JENSEN: Could we jump, I think, to

the --

A. The bottom of Page 2.

BY MR. JENSEN:

Q. Okay.

A. There we go.

Q. And as it relates to this case, what sort of

degrees or diplomas have you obtained?

A. I have a bachelor's equivalency in computer

science from the University of Texas at Austin. And

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 192 of 368
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

01:42

01:42

01:42

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)

912

about 18 additional graduate hours of credit from their

graduate school.

Q. Do you hold any other degrees?

A. Yes. I hold two other degrees.

Q. What are those?

A. I have a bachelor's from Princeton that I got

in 1973 and a master's from the University of Texas in

1979, both of which are in anthropology.

Q. Mr. Tittel, do you have any publications that

relate to the subject matter of this case?

A. Yes. I do.

Q. Can you give me an example of one of those?

A. Well, it just so happens that I brought some

with me.

(Laughter.)

BY MR. JENSEN:

Q. All right.

A. Let's see. Where did I put them?

What really got me started on working on the

web was writing the first edition of "HTML For Dummies"

in 1995. Unfortunately, I couldn't find it anymore, so

I brought the 14th edition of that book which came out

in 2013.

And --

Q. Let me just pause you there and ask: Is

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 193 of 368
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

01:43

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

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

913

that -- so the "HTML For Dummies." What is HTML?

A. HTML is the HyperText Markup Language. It's

sort of the basic way of defining what shows up on a

web page in a browser.

Q. And were you the -- I want to make sure I

caught this. Were you the co-author or principal

author on that book? What was your role in the "HTML

For Dummies" series?

A. I was approached by my agent and asked to

write the book. And I recruited another friend of mine

to help me. And I wrote the outline and a little bit

more than half the book. And I've been working on it

ever since.

Q. And you said it's in the 14th edition now?

A. Yes. That's correct.

Q. Mr. Tittel, do you have a CV?

A. I do.

Q. And what is a CV?

A. A CV is a Latin phrase. It stands for

curriculum vitae, which means a listing of things from

one's life. But in this case it's just a list of

publications.

Q. All right.

MR. JENSEN: Mr. Thompson, could you

please pull up Mr. Tittel's CV?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 194 of 368
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

01:44

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

01:45

01:45

01:45

01:45

01:45

01:46

01:46

01:46

01:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

914

BY MR. JENSEN:

Q. And while that's coming up -- all right.

Looks like we've got it up here right now. Okay.

And how long is this CV? I can't tell by

looking at the front page.

A. It's 86 pages long.

Q. 86 pages. And at a high -- we're not going to

go through 86 pages of material in your CV, believe me.

But can you just give me a sense, kind of a summary

level, what sort of materials are listed in your CV?

A. You bet. If you take a look at the top of the

page there, it has a list of different topics. There's

books and custom books, and then books either I edited

or just contributed pieces to. There's white papers

and tech briefs, webinars, blogs, certification

articles, magazines articles, other writing, and

projects in progress.

(Clarification by the reporter.)

BY MR. JENSEN:

Q. Approximately how many or what percentage of

your writings and publications relate to website design

and development?

A. About 40 percent.

Q. And how long have you been publishing in this

area?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 195 of 368
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

01:46

01:46

01:46

01:46

01:46

01:46

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

01:47

01:47

01:47

01:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

915

A. Well, the first thing that I published on this

subject matter was the first edition of "HTML For

Dummies," and that came out in 1995. So that was,

what? 37 years ago. Yeah. I think so.

Q. All right. And what sorts of web-related

topics have you published on?

A. I've written about HTML. I've written about

XML. I've written about XHTML. I've written about

Cascading Style Sheets. I've written about web design.

I've written about a variety of programming languages

that run in the web environment, including Java and

JavaScript.

And also I have written a book on e-commerce,

building -- web e-commerce sites came out, I believe,

in 1997. And as far as I can tell, it was one of the

first ever books to come out on that subject matter.

And a year before that -- this is actually the

second edition of a book, but the first title was so

long I think the publisher decided they needed

something shorter, so they called it the CGI Bible.

Q. And what is CGI? I've heard of that in the

context of, like, special effects for movies.

What is a CGI in the context of websites?

A. It stands for the common gateway interface,

and it was defined at NCSA by Rob McCool in the 1993

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 196 of 368
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

01:48

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

01:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

916

time frame as the first way to hook other programs up

to a web server so that you could have a web server

call on a database or interact with another program and

essentially get the web pages to do more than HTML can

do by itself.

Q. Do you cover the topics of web navigation in

any of your books?

A. Yes. I do.

Q. And you mentioned the "For Dummies" book, I

think, was first published in 1995; is that correct?

A. Correct.

Q. Is that before or after the Google website had

launched?

A. Well, Google started in 1998, so I guess it

was before.

Q. So you were publishing in the area of website

design and development before the advent of Google?

A. Yes, sir.

Q. And sounds like some of your books go back,

you know, quite a ways, some decades.

Are you still actively publishing in these

areas today?

A. We're actually in the process of negotiating

the 15th edition of "HTML for Dummies" right now. And

I still write publications for a couple of different

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 197 of 368
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

01:48

01:48

01:48

01:48

01:48

01:48

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

01:49

01:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

917

publishers, including Wiley, who now owns the Dummies

brand, and also an outfit called ActualTech Media that

publishes for a variety of different industries.

Q. Have you ever previously testified in court as

a witness?

A. Yes. I have testified at three previous

trials.

Q. And were those trials in patent cases?

A. Yes. They were.

Q. Did they relate to website design?

A. By and large, yes.

Q. Approximately how much of your time do you

devote to this type of expert witness work as opposed

to your, you know, writing and other endeavors?

A. That's about 25 or 20 percent, and the reason

why I don't do more is because I like to keep my other

writing engagements up and running, and I don't want to

get too overwhelmed with legal work.

Q. You showed -- kind of did a little

show-and-tell with a few books there.

What was your best selling book?

A. Well, that would be "HTML For Dummies" by

virtue of having gone through so many editions. It

sold a total of over two million copies across all

editions.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 198 of 368
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

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

01:50

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)

918

Q. I hope you get royalties for that.

A. Amen.

Q. Mr. Tittel, have you ever created a website?

A. Yes. I have.

Q. Okay.

MR. JENSEN: At this time, Your Honor,

I'd like to offer Mr. Tittel as an expert in website

design, development, and implementation.

MR. DEVLIN: No objection.

THE COURT: He'll be admitted.

BY MR. JENSEN:

Q. Mr. Tittel, did you prepare some demonstrative

slides to assist with the presentation of your

testimony today?

A. Yes, sir. I did.

MR. JENSEN: Mr. Thompson, why don't we

go ahead and pull those slides up?

BY MR. JENSEN:

Q. And let me just ask another question here.

You've been with us throughout the trial the entire

time in the galley in the back; is that right?

A. Yes, sir.

Q. Okay. And you were here when Mr. Sherwood

testified as well?

A. I was.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 199 of 368
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

01:51

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

01:51

01:52

01:52

01:52

01:52

01:52

01:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

919

Q. Okay. Before we kind of dig in and get into

the meat of your testimony, I wanted to ask you if you

could provide just a high-level summary of what it was

that you undertook to do, what were you asked to

evaluate, and what conclusions and opinions did you

reach?

A. I was asked to provide a noninfringement

summary of the various Microchip websites that were the

subject of this process we're involved in, and that

included the old website, the redesigned website, and

the Forum website.

And as far as the old website goes, as I will

be explaining, I concluded that Microchip did not

infringe.

The redesigned website is not accused. So it

does not infringe either.

And as I examined the Forum section and looked

at the behavior of that website, I concluded that it

also does not infringe.

Q. Okay. And then I wanted to ask you to maybe

go one step further for each of these websites and just

provide -- maybe I could call it -- the top-line reason

as to why you concluded each one did not infringe.

And I understand you may have additional

reasons, and we may explore some of those in further

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 200 of 368
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

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

01:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

920

detail, but I wanted to focus just at the outset on

what is the -- or maybe you'd call it the primary

reason that the original website did not infringe?

A. Sure. Essentially, after examining the

behavior of the website and its use of breadcrumbs, I

came to the conclusion that there is no Active Path as

defined by the Court's construction and in the patents

at issue.

Q. And I see you included a little figure here

with the soccer ball and football.

What does that have reference to?

A. Well, that's a little bit of a reminder of

some slides that the jury has seen before that

basically talks about the way you decide if a claim is

infringed or not.

And the requirement is that all elements in a

claim must be infringed in order for infringement to

occur. And the notion of all elements not met means

that one or more of the claims -- of the claim elements

is not infringed and, therefore, the claim itself is

not infringed.

Q. And what is the top-line reason, in your

opinion, that the redesigned website does not infringe?

A. Well, the redesigned website no longer has a

drop-down menu. So without the cascade for the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 201 of 368
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

01:53

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

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

921

hierarchical menus, you can't have an Active Path and,

therefore, the redesigned website does not infringe.

Q. And with respect to the Forum website, I see

you've highlighted kind of two sections of the claim

here.

Is that because there are two primary reasons?

A. Yes, sir. That's correct.

The preamble of the Forum website essentially

says a method for navigating, and that means that an

actor has to do something. And what I'm saying is that

Microchip does not infringe because Microchip is not

the actor that's doing the work with Forums.

The second reason on the slide is that there

is not a one-to-one correspondence between the number

of selections that the user makes when they're

navigating the Forum website and the number of links

that show up in the breadcrumb.

Q. And what claims did you analyze with respect

to your noninfringement opinions?

A. I analyzed the claims shown here in this slide

for the various patents at issue. The ones that are in

bold are called independent claims, and the ones that

are in regular text are dependent claims, which means

they depend on one of the independent claims that is

shown. And typically, it looks like, from looking at

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 202 of 368
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

01:56

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

01:56

01:56

01:56

01:56

01:56

01:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

922

the diagram now, they're all in the left-hand column

there.

Q. And are these the same claims that

Mr. Sherwood testified about?

A. Yes, sir. That's correct.

Q. It includes all the claims he analyzed and no

additional ones?

A. Gosh, I hope not.

Q. It's a lot to keep track of. There's a lot of

claims.

MR. JENSEN: Mr. Thompson, could we pull

up Slide 2 from the slides that Mr. Sherwood presented?

BY MR. JENSEN:

Q. And, Mr. Tittel, while that's coming up, I

want to ask you if you're familiar with the concept of

what's referred to as a person of ordinary skill in the

art?

A. Yes. I am. And that's usually pronounced as

a "POSITA" or "POSITA," depending on how you like to

speak out your acronyms.

It refers to a person who, at the time of the

patent's filing, had what you might consider to be an

ordinary understanding of the subject matter related to

the patent.

They would have certain levels of education,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 203 of 368
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

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

01:57

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)

923

certain levels of experience, certain areas of

knowledge and skill, and all those things taken

together define a person of ordinary skill in the art.

Q. And did you form an opinion as to what the

level of ordinary skill in the art would be, in this

case, back in 2002 for, you know, kind of an ordinary

software developer?

A. Well, I would say an ordinary web developer,

but --

Q. Thank you.

A. -- yes. I did.

Q. Okay. And you see on the screen here, this is

a slide from Mr. Sherwood's presentation that sets

forth his -- I'll call it a definition of the level of

skill in the art.

Did you have an opportunity to review this?

A. I did.

Q. Does it match identically with your definition

of a person of ordinary skill in the art?

A. No. It does not.

Mine says two to three years of experience

working in the field, whereas his says three to five

years of working in the field. And there's a couple

reasons for that.

One of them is that in 2002 the web hadn't

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 204 of 368
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

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:58

01:59

01:59

01:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

924

really been a big thing for all that long, so -- and it

was getting to be a hot thing. So it would have been a

little bit harder to find people with relatively more

experience. But I don't disagree with Mr. Sherwood's

characterization.

Q. Would it make a difference, one way or the

other, to your opinions in this case whether you

applied Mr. Sherwood's definition or your definition of

a person of ordinary skill?

A. No. It would not.

Q. Okay. And in 2002, did you possess the

qualifications of a person of ordinary skill in the

art?

A. Yes. I think so.

Q. And it looked like maybe you possessed more

than that?

A. I hope so.

Q. In forming your opinions in this case, did you

form those opinions from the perspective of an ordinary

person of skill in the art or of someone who had

additional, you know, qualifications and credentials?

A. Well, the requirement for doing an

infringement analysis is that you consider the POSITA

as your point of reference. So I did it from the

perspective of a person of ordinary skill in the art as

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 205 of 368
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

01:59

01:59

01:59

01:59

01:59

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

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

925

I was required to do.

MR. JENSEN: Mr. Thompson, you can take

that down, and let's go back to the slide presentation.

Let's -- can we -- I think you need to

activate the clicker here. Okay.

BY MR. JENSEN:

Q. In forming your opinions and conducting your

analysis, Mr. Tittel, what materials did you consider

or analyze?

A. Well, it's no accident that we see those

materials on a table and covering most of that table

up, because I actually had to review quite a lot of

materials.

It started out with the patents-in-suit and

their file history. And if you put them in a pile on

top of each other, the file history would account for

most of that stuff there. It also includes all kinds

of legal filings, like the Judge's claim construction

order in the case, and various kinds of interrogatories

and responses, and various other kinds of pleadings and

materials related to the case.

I looked at source code and manuals for the

websites at issue and plenty of other websites besides,

to try to get a sense of how the world worked and what

was going on at the time.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 206 of 368
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

02:00

02:00

02:00

02:00

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

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

926

I did read the third-party analysis materials

from Dynamic Range Labs, the DRL that you see there on

the slide.

I read the transcripts of witness testimony

for witnesses that were taken on by the prosecution and

also by the Microchip side.

And then I looked at a number of test cases

and other kinds of materials related to the case.

Q. I wanted to ask just one follow-up question

about this kind of mountain of materials here. You

mentioned that you reviewed some source code in this

case; is that correct?

A. It is.

Q. Did you personally review that source code?

Or did you have somebody else do that work for you?

A. I reviewed it myself on the belief that my own

impressions would be most useful in helping me to form

my own opinions.

Q. Is that your normal practice?

A. It is.

Q. I understand, Mr. Tittel, that you've prepared

a short technology tutorial for the jury; is that

correct?

A. Yes. It is.

Q. Okay. I'd like to have you maybe present

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 207 of 368
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

02:01

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

02:02

02:02

02:02

02:02

02:02

02:02

02:03

02:03

02:03

02:03

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

927

that. Do you know how long that tutorial is?

A. It shouldn't run more than ten minutes.

Q. Okay.

A. I'm going to move the microphone a little bit.

If it causes the court reporter any problems, I hope

she'll let me know.

Basically what we're going to talk about is

the two fundamental concepts that really guide and

drive the Active Path that is the central concept to

the '411 patent family at issue in this case.

We're going to talk about collapsing menus as

you see on the left-hand side. And we're going to talk

about breadcrumbs or the breadcrumb trail, as you can

see from the little picture of Hansel and Gretel over

there on the right-hand side.

Our first topic is a collapsing menu. And

what I have taken is a snapshot of two of the figures

that are used in the various patents, where Figure 1A

shows a prior art, which means the preexisting, already

understood idea of what a collapsing menu was at the

time of the invention. And on the right-hand side we

see the actual menu cascade as it's been opened up to

three levels.

And what we see, looking back at Figure 1A to

the left, is that we've hovered the mouse over the 1.4

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 208 of 368
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

02:03

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

02:04

02:04

02:04

02:04

02:04

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)

928

item there. And what we see in the right-hand picture

is having taken that same cascade out to three levels,

so that we started by hovering over File to open up the

first cascade. Then hovering over 1.2 to open up the

second cascade. Hovering over 1.2.3 to open up the

third cascade. And then hovering over 1.2.3.4.

THE WITNESS: Next slide, please.

A. Now, in the '301 patent we find a passage that

says: By far the most popular menu navigation system

is the so-called collapsing menu system which, for

example, is used by many traditional personal computer

applications.

If you use any of the Microsoft Office

components, for example, those are the kinds of menus

that they have too.

THE WITNESS: Next slide, please.

A. Now we're going to take a look at

the breadcrumb trail. This is based, of course, on the

famous fairytale of Hansel and Gretel that the Brothers

Grimm first published in the early part of the 1800s.

And, basically, the central idea of the story is that

to find their way back from the forest, Hansel and

Gretel sprinkled breadcrumbs so that they can follow

their trail to get back home.

Now, of course, because the birds came and ate

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 209 of 368
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

02:05

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

02:05

02:05

02:06

02:06

02:06

02:06

02:06

02:06

02:06

02:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

929

the breadcrumbs, it didn't end well for Hansel and

Gretel. But for us that trail of items that shows

where we've been is what defines the notion of a

breadcrumb trail.

And the kind of breadcrumb trail that we're

most interested in for this case is the kind of

breadcrumb trail that keeps track of where Hansel and

Gretel are going as they take each step along the way.

So in this picture, we see a trail that goes

from A to B to C to D. And that trail contains an

entry for each of those things.

THE WITNESS: Next slide, please.

A. Of course, if you want to navigate around on a

website, like, for example, Amazon, if you've got socks

and a barbecue pit and some USB drives, you're going to

have a few trails as you go around on the site. And so

we see --

THE WITNESS: If Mr. Thompson will expand

the various paths there for me.

A. We see a trail at the top that goes from A

through E. We see, in the middle, a trail that goes

from A through I, and then on the bottom we see a trail

that goes from A through L.

And the thing to pay attention to about this

is that as we jump back to A to start our next trail,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 210 of 368
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

02:07

02:07

02:07

02:07

02:07

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)

930

the old trail goes away and a new trail starts up.

THE WITNESS: Next slide, please.

A. Now, it's possible that you could find

yourself in a situation where you might have more than

one way to get from a starting point to a final

destination. And what this figure shows, just as an

example, is that there's three different ways to get

from A to G.

There's the path that goes on top. There's

the path that goes in the middle. And there's the path

that goes on the bottom. And the thing is, as you

would follow each one of these trails, the resulting

breadcrumb would exactly reflect the path that you took

from A to G.

So the breadcrumb for the first trail is on

the top of the slide. The breadcrumb for the second

trail is on the middle of the slide. And the

breadcrumb for the third trail is on the bottom of the

slide.

THE WITNESS: Next slide, please.

A. Now, typically we don't end up scattering

breadcrumbs in the forest when we're navigating on the

web. So I wanted to show you something that looked

more familiar for those of you who've done any online

shopping.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 211 of 368
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

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:08

02:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

931

If we visit this sort of very generic mockup

of a website and we click on Products, then we get a

menu beneath Products that tells us what kinds of

products we can buy.

And let's, for example, pick Home Decor. And

then we get a list of different kinds of home decor

that we could buy.

If we pick Bedding, then we get a list of

various kinds of accessories that we could buy.

And if we click on Blankets, the cascading

menus go away and we're left with that breadcrumb that

you see on the right-hand side of the screen, which is

Products, Home Decor, Bedding, and Blankets.

Notice that the things that we selected as we

went down the cascade are exactly reproduced in the

breadcrumb. And the number of things that we picked as

we went through the cascade is also reflected in the

breadcrumb.

THE WITNESS: Next slide, please.

BY MR. JENSEN:

Q. Thank you, Mr. Tittel. Let's turn next to the

Caddo patents and apply the teachings that you just

provided in the context of the patents asserted in this

case.

First off, how many patents are we talking

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 212 of 368
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

02:09

02:09

02:09

02:09

02:09

02:09

02:10

02:10

02:10

02:10

02:10

02:10

02:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

932

about here?

A. We're talking a half dozen patents, or six, if

you prefer numbers.

Q. And are those patents all part of the same

patent family?

A. Yes. As you can see here on this slide, the

'411 patent is the original, or parent, patent in this

family. And if you look to the right, on top, outlined

in blue, you'll see that the '517 patent is an

out-and-out continuation of the '411 patent.

And what that means is that the specification,

or the text in the front of the patent before the

claims, is exactly the same between the '411 patent and

the '517 patent.

And what you see down below in the patent and

their numbers outlined in red is what's called a

"continuation-in-part." And what that means is that

the front matter, the specification for those patents

down below, has everything in it that the '411 patent

has. But it also has some additional material that

wasn't in the '411 patent.

Now, of course any time you file either just

an out-and-out continuation or a continuation-in-part,

you'll also have new sets of claims that define what

the patent is trying to scope out in terms of

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 213 of 368
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

02:10

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

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

933

functionality that it wants to describe.

Q. All right. Turning to the -- sort of the body

of the patents, what is shown on this slide here? What

are you intending to convey?

A. Well, what I'm intending to convey is that the

menu cascade and associated breadcrumb that gets formed

along with it --

THE WITNESS: And if Mr. Thompson will

click his way through the various elements, we'll pick

an item underneath the first level. And then we'll

pick an item in the second level. And ultimately we'll

wind up with an item on the third level.

A. And when we click that, what we'll do is we'll

wind up with a breadcrumb, as shown on the right-hand

side, where the number of elements and the names or

labels for those elements are the same from one to the

other.

And let me also correct myself on something.

I think I may have said "click" somewhere before I got

to the last item. I apologize for that. That was a

mistake. We have to hover, or hold the mouse cursor

over things as we're moving through the cascade. And

we don't actually click till the end. I'm sorry. I

misspoke on that.

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 214 of 368
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

02:11

02:11

02:11

02:11

02:11

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:12

02:13

02:13

02:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

934

Q. And so in Figure 6B on the right side of the

screen, is what is shown there a -- I'll call it a

Hansel and Gretel breadcrumb, as you explained?

A. Yes. It is.

Q. And does that breadcrumb have any additional

functionality in the context of the asserted patents?

A. Yes. It does. And it's shown here in Figure

5c where we see that we can hover over any of the

active links in the top line of the breadcrumb and get

the cascade to open from whichever one of those links

that we pick and then navigate the cascade from there.

Q. And the title of this slide that you put up

there was "Active Path"; is that correct?

A. Yes. What I'm essentially saying is that --

THE WITNESS: Mr. Thompson, would you

mind going back to that last slide, please?

A. What I'm saying is that the Active Path is the

breadcrumb plus the menu cascade or collapsing menus

that we can open up from that breadcrumb through the

active links that make it up.

BY MR. JENSEN:

Q. And in the figure on the screen right now, how

many active links are there that comprise the Active

Path?

A. I see four.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 215 of 368
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

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:13

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

02:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

935

Q. And that matches up on the previous slide with

the four links kind of under the Item 100?

A. Yes. It does. You can see it best by looking

to your right at the multi-colored items there.

Q. And we've heard the term, I think, "Active

Path" a number of times throughout this trial, correct?

A. Yes. We have.

Q. Is that term a term for which the Court

provided a claim construction or definition?

A. Yes. It is. And, in fact, that definition is

shown underneath the term on the left-hand side of the

slide. And the Court defined an Active Path as: A

sequence of links that is dynamically created as a menu

system is navigated.

And the reason why I highlighted "dynamically

created" is because you build the breadcrumb as you

hover through the cascade and move down to the next

level. And that's how you're navigating the menu

system.

Q. Did you apply the Court's definition when

forming your opinions in this case?

A. Yes. I did.

Q. Let's take a look now at -- this is Claim 1 of

the '301 patent. And that's one of the asserted claims

in this case, correct?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 216 of 368
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

02:14

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

02:15

02:15

02:15

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)

936

A. Yes. It is.

Q. And could you just kind of walk the jury

through what the -- I'll just put it all on the screen

here.

Could you just walk the jury through what the

various elements of Claim 1 are for the '301 patent?

A. Yes. The first portion of a multistep claim,

a method claim in this case, for example, is what's

called the preamble, and that just basically means the

beginning.

And in this preamble, what we're talking about

is a method, which means it's something that has to be

performed step-by-step in order to be satisfied. We're

talking about a method for navigating that set of

cascading entries that we saw, navigating from the

graphical user menu, where each level in the

information structure has more than one element in it,

and each one of those items is either a function, a

pointer to a location, or a pointer to another level.

And then we get into the steps we have to follow.

So that's where the colored Nos. 1 through 3

come into play, where the first one is essentially all

about what's involved in providing a graphical user

menu system where it actually displays items from a

given level of the hierarchical information structure

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 217 of 368
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

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:16

02:17

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

937

that can be selected.

The second claim element, which is labeled 2

here on the slide, talks about dynamically constructing

an Active Path -- and remember, that's something that

the Court gave us a definition for -- which is a

sequence of active links as items are selected, where

there's a one-to-one correspondence between the items

that are selected and the items that show up in the

path, the Active Path, or the resulting breadcrumb.

And then finally, it says that each active

link lets the user open the cascade and start

navigating from there.

Q. And you were here during Mr. Sherwood's

testimony where he walked through all of the claims and

all of the elements one by one.

Do you recall that?

A. Yes. I do.

Q. And I believe at one point he kind of grouped

various of the claims or claim elements together and

said these are all, more or less, the same?

A. I remember.

Q. Okay.

MR. JENSEN: Mr. Thompson, could you pull

up Demonstrative Slide 64 from Mr. Sherwood's

presentation?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 218 of 368
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

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:17

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

938

BY MR. JENSEN:

Q. Do you recognize this slide as one of the

slides presented by Mr. Sherwood?

A. I do, indeed.

Q. And what is the title of this slide?

A. The title of this slide is "Asserted Patents

Claim Comparison," but what it really is doing is

taking the first entry at the top of the chart, which

is the '411, Claim Element 1.2, which would be the

second claim element beneath the preamble in that

claim, and saying that all of the other claim elements

that are listed underneath it -- and I'm not going to

repeat them for you because you can read as well as I

can -- and saying that they're all substantially enough

like each other that if we take care of one, we take

care of the other ones too.

Q. And what particular limitation is highlighted,

at least in the first two entries of this slide?

A. Both of them mention an Active Path. And, in

fact, if you look at the remaining elements in the

list, you'll see that they also mention an Active Path.

Q. Is it correct that all of the asserted claims

in this case require an Active Path?

A. Yes. It is.

Q. And we can see that here on the screen, all

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 219 of 368
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

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:18

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

02:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

939

six patents, the independent claims, each and every one

of them has the same Active Path requirement?

A. Yes. That's true.

Q. Okay. Thank you.

I think that will save us a lot of time.

A. Let's make it happen.

Q. All right. So we've discussed a little bit

about the Caddo patents now. Let's move to the next

module that you have in your slides here, which is the

Microchip websites.

And can you just kind of summarize for us, or

walk us through your understanding of what these

websites are, you know, which ones you analyzed, which

ones maybe you didn't need to?

A. Sure. I'd be happy to.

THE WITNESS: Thanks, Mr. Thompson, for

expanding the whole thing. It's a lot easier to talk

to when we do that.

A. One of the sites that I looked at is what has

been called the e-commerce site for Microchip. It has

a URL of microchipdirect.com, and it's been up and

running since at least 2014. And it was not accused in

the lawsuit in which we're currently engaged.

There have been multiple different versions of

microchip.com. The one that predates 2018 is what we

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 220 of 368
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

02:19

02:19

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:20

02:21

02:21

02:21

02:21

02:21

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

940

call the legacy website, and it was not accused in this

suit because it didn't have a breadcrumb or cascading

menus.

Then there's the old website, which has a

duration of about fall 2018 to mid-2020 and it was

accused in this lawsuit.

The redesigned website starts taking over in

early 2020 and gets really up and running from mid-2020

to the present, and it was not accused in this lawsuit.

And then, finally, there's the

microchip.com/forums, which, as you guys have already

heard repeatedly, is the Forum website, and it too has

been running since at least 2014 to the present day.

And it is accused in this suit.

BY MR. JENSEN:

Q. All right. Let's step through each of these,

and I think we can go through some of these rather

quickly.

The first is the Microchip e-commerce portal.

Is this the microchipdirect.com site?

A. Yes. It is.

Q. And I think we've seen that several times.

Did you, you know, navigate that site and

visit it as part of your analyses?

A. I did.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 221 of 368
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

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:21

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

941

Q. Okay. Let's pause on this next one for just a

moment because I don't think we spent quite as much

time on it, and this is, I think, what you called the

legacy website. So before fall of 2018?

A. Yes. That's correct.

Q. Okay. And what do you have shown highlighted,

kind of on the left there, in that red box?

A. Well, this is what we call a left nav type of

website, which means essentially we've got a navigation

menu on the left-hand side of the screen.

Q. Okay. And that implementation is not at issue

in this case?

A. No. It is not.

Q. And what about the old website?

A. The old website has the combination of a top

nav or a graphical user menu, which we see up on the

top bar underneath the address that reads Microchip,

Products, and so forth from left to right.

And then we see that we've got a breadcrumb

open on the area beneath the banner there, where we've

got a breadcrumb that consists of a Home link and a

Microcontroller link, and we've actually hovered over

Microcontrollers and cascaded the menu out a level,

then hovered over Applications, and cascaded the menu

out yet another level.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 222 of 368
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

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:22

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

02:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

942

Q. And this is one of the websites that you

analyzed to form your opinions?

A. Yes, sir. It is.

Q. Okay. And I see you've included one of my

favorite slides, the old house/new house slide.

At some point did Microchip redesign its

website?

A. Yes. It did.

Q. Okay. And we heard about that just a little

bit ago from Ms. Mahar?

A. Yes. We did.

Q. And what is shown on this slide?

A. This slide shows the current Microchip

website, which is also known as the redesigned website,

that started getting phased in in mid-2020 and is the

primary source of web pages in the current

microchip.com website.

Q. And I think you said the mid-2020 time point,

that was sort of the start of the actual rollout onto

the Internet and then over time --

A. It was a phased implementation, as Ms. Mahar

explained, with tens of thousands of pages for them to

have to convert from the old content management system

to a new content management system. There's just a lot

of work involved in crossing all the Is and dotting all

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 223 of 368
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

02:23

02:23

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:24

02:25

02:25

02:25

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

943

the Ts.

Q. And that was this kind of burndown chart, as

Ms. Mahar called it, showing the progress?

A. Right. Right.

You can tell Ms. Mahar is a project manager

because this is a very common project management tool.

And what we see here in this curve is

essentially the line dropping as we go from left to

right as the amount of old stuff decreases and, by

implication, the amount of new stuff increases.

Q. And were you here -- I don't think -- recall

if it was yesterday or the day before -- when

Mr. Sherwood testified that he did an analysis of a

site map at a certain point in time to determine the

number of old pages that were still on the Internet

versus the number of redesigned pages?

A. Yes. I did.

Q. Okay. Do you recall at what point in time

that analysis took place?

A. He said in testimony, and I think the date of

his expert report is sometime in December of 2021.

Q. Okay. And you had the opportunity to review

and respond to Mr. Sherwood's report, where he included

that opinion as to the number of old infringing pages

that remained live on the Internet in December of 2021?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 224 of 368
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

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:25

02:26

02:26

02:26

02:26

02:26

02:26

02:26

02:26

02:26

02:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

944

A. I did.

Q. Did you agree with his analyses?

A. No. I did not.

Q. Did you undertake your own analysis to

determine the number of old web pages that were on the

Internet in that time frame?

A. I did. I actually performed some text

analysis on the four site map files that he got from

Dynamic Range Labs and kind of did some kicking-out

activities to get rid of the stuff that couldn't

possibly infringe and took account of what was left

over.

Q. Could you describe how you went about that

analysis to determine the number of old web pages that

were live on the Internet in December or January of

this year?

A. Yes. I could.

Essentially what you do when you do an

analysis like this is you match text strings and then

you kick out the elements in the file that match the

text string.

So, for example, Mr. Sherwood learned from

Cody Miller at DRL that all of the URLs that had an

en-us in it were new website pages and therefore

shouldn't be counted. So you just basically write a

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 225 of 368
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

02:26

02:26

02:26

02:26

02:26

02:26

02:26

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

02:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

945

filter that goes through the file and removes all of

the entries that have the en-us string in it.

Then the next thing that I did was to look at

files that were left over and see what kind of file

extensions they have.

Like, for example, I knew that the PDF files

that were in the various directories didn't have any

navigation on them at all, and so I knew they could be

kicked out.

There were a number of image files which might

have an extension like JPEG or GIF or something else

along those lines, and I knew that they couldn't have

navigation on them either, so I kicked them out.

And then I found some XML files that didn't

have navigation on them, and I kicked them out as well.

Q. And what conclusions did you reach at the end

of this analysis in terms of the number of old web

pages that remained live on the Internet in January of

this year?

A. The number of files that was left over was

under 100.

Q. And that's out of approximately how many?

A. I think that Dr. -- I'm sorry --

Mr. Sherwood's analysis came up with an initial number

that was just a little bit north of 10,000.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 226 of 368
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

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:28

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

946

Q. All right. Let's touch on the Forum website.

And that's shown here on the slide; is that correct?

A. Yes, sir.

Q. And what is your understanding of what the

Forum website is?

A. Well, it's been described as an online

community site. And as somebody who earned his stripes

in the forum world as a sysop on CompuServe starting in

1988, I also know it's a place where people go to hang

out with each other to try and learn more stuff, to ask

for help with problems, and to try to find cool new

things to play with and mess around with.

Q. And who provides the Forum website software?

A. The Forum website software was developed by a

company called ASP Playground.

Q. Does the Forum website have the same look and

feel as the regular microchip.com website?

A. It has the same trade dress and a similar

color scheme. But other than that, it does not have

the same look and feel as the main Microchip.

Q. Does it serve the same purpose?

A. No. It does not serve the same purpose.

Q. Does it run the same software?

A. No. It does not run the same software.

Q. Does it contain the same content?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 227 of 368
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

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:29

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

02:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

947

A. No. It does not contain the same content.

Q. All right.

Next, let's turn to your opinions in this

case. And to start off, can you just summarize at a

high level what the various topics were that you

analyzed? I think you told us about noninfringement

already. But there's several other items listed here.

A. Sure.

You've heard before in testimony in the court

about something called a noninfringing alternative,

which is basically something that's -- allows the

website to keep functioning without diminishing its

capability, or the kinds of things it can do that was

available at the same time as the infringement was

supposed to have started to occur, that you could

essentially swap out and therefore cease to infringe on

the asserted patents.

And so the question I was trying to answer

was, were there noninfringing alternatives? And

Mr. Sherwood's assertions to the contrary

notwithstanding, I do think there are some

noninfringing alternatives. And I'm going to tell you

about them.

Q. And the Topic No. 3, can you kind of outline

for us as well what that is all about?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 228 of 368
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

02:30

02:30

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:31

02:32

02:32

02:32

02:32

02:32

02:32

02:32

02:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

948

A. Yeah. Comparable licenses basically looks at

licenses that have been issued that have something to

do with, in this case, web navigation and trying to

decide if any of the other licenses that are presented

for inspection -- and they might come from either

Microchip or they might come from Caddo -- are enough

like the patents-in-suit that you can say, yeah, these

things are technically comparable to each other.

So the answer to my question in this case is,

are there technically comparable licenses? Yes.

And then finally I took a look at the patent

benefits that Mr. Sherwood described for the '411

family of patents. And to answer the question, do I

agree with the alleged benefits of the patents? The

answer is no.

Q. All right. So before we turn to the meat of

your noninfringement opinions, I want to just review a

basic concept I think the jury has heard a little bit

about and that I discussed with Mr. Sherwood yesterday.

And I want to ask your understanding of this

concept. Are you familiar, Mr. Tittel, with what's

been referred to as the all-elements rule?

A. Yes. I'm familiar enough with it that I'm

wondering why I forgot to put it on this slide.

Essentially what the all-elements rule refers

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 229 of 368
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

02:32

02:32

02:32

02:32

02:32

02:32

02:32

02:32

02:32

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

02:33

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

949

to is the idea that when a claim and its preamble

define a number of different elements, each and every

one of those elements must be satisfied in order to

infringe the patent.

So if we have a patent for a soccer ball, for

example, we can look at the requirements for that

soccer ball, and we can see as we march through the

different requirements there in the slide that it fails

because it is not round.

So essentially we can say the claim is not

infringed because one of the elements is missing. And

that's why we call it the all-elements rule.

Q. All right. So we're showing on this slide,

again, the Claim 1 of the '301 patent. And I wanted to

ask you, you know, why you have certain elements

highlighted on this slide, and how does that relate to

your noninfringement opinions?

And maybe I can focus you a little bit more in

the preamble, in the yellow highlighting, you've

highlighted the phrase that states: A method for

navigating.

A. Yes. That's --

Q. I'm going to call it a website -- a method for

navigating a website.

A. Yes. And, in fact, all of the independent

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 230 of 368
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

02:33

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:34

02:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

950

claims in all of the asserted patents have -- are

method claims. So by making a statement that Microchip

does not infringe this particular claim, I'm

essentially saying that Microchip doesn't infringe any

of the claims.

Q. Let me ask you a question. You used a word

that triggered something for me which is this word

"method."

A. Yes.

Q. Are you familiar with the concept of a method

claim?

A. Yes. I am.

Q. And there are other types of claims as well,

like product claims or apparatus claims?

A. Yes. And system claims as well.

Q. And system claims. Okay. Very good.

Are the claims in this case system claims or

are they method claims?

A. Well, because -- if you look at the language

of the patents, and you generally see the word "method"

mentioned in the preamble of the independent -- of all

the preambles of the independent claims in all of the

patents, they are all method.

Q. And what is the significance of the fact that

these are method claims?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 231 of 368
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

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:35

02:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

951

A. A method claim is a claim in which the steps

of the method must be performed to meet the

requirements of the claim.

Q. And that could be something like a recipe has

certain steps. You have to do them in a particular

order?

A. It could mean that you have to do them in a

particular order. It could also mean that you just

need to do all of them. The claim will generally tell

you if the order is important or not.

Q. Very good.

But in any event, regardless of the order,

each of the method steps would have to be performed to

establish an infringement?

A. Yes, sir. That's correct.

Q. Okay. Very good. All right.

And I think you mentioned earlier that, you

know, with respect to the Forum website, and I suppose

the other website as well, that somebody -- or, in

fact, in this case, Microchip would have to perform

that step or there would not be an infringement; is

that correct?

A. Correct.

Q. So if somebody else was performing this step,

you know, a method of navigating a website, would that

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 232 of 368
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

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:36

02:37

02:37

02:37

02:37

02:37

02:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

952

be an infringement on the part of Microchip?

A. No, sir. It would not. And Mr. Sherwood also

testified that Microchip was the one that was

infringing.

Q. Okay. And you've got, I think, the Item

No. 2, the second claim element in orange, "dynamically

constructing," and it looks like that corresponds to

the note that the old website does not infringe?

A. Right. As we already looked at a little bit

earlier, each and every one of the independent claims

in all of the asserted patents includes a requirement

for an Active Path.

And essentially, what I'm saying is the old

website does not infringe because it does not have an

Active Path.

Q. And now, what about the green highlighting

that corresponds to the note about the Forum?

A. Well, if you look at the number of links in

the breadcrumbs on the Forum, you'll see that that

number is different from the number of items that you

selected when you were navigating through the Forum

menus.

And the language of this part of the claim

says "one active link corresponding to each of the

items selected." And we don't see that correspondence

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 233 of 368
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

02:37

02:37

02:37

02:37

02:37

02:37

02:37

02:37

02:37

02:37

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

02:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

953

in the breadcrumbs for the Forum site.

Q. And the last one on this slide, the blue

highlighting and text.

A. That is about the redesigned website. And as

you'll recall, the redesigned website does not have any

drop-down menus anymore. And if we can't browse

through the breadcrumb to get to the drop-down menus,

then we can't infringe.

Q. Okay. So depending on the particular website

that you were looking at, there are different claim

elements that are not met; is that correct?

A. Yes, sir. That is correct.

Q. All right. Let's look at the old website now,

and we've touched on this dynamically constructing

claim requirement, the Active Path claim requirement.

And I just want to put up here a slide that

you prepared that, again, reflects that every single

claim in this case requires an Active Path; is that

correct?

A. Yes. And in case the jury is wondering why we

don't have some of the other claims that we know are

being asserted in this case showing up on the chart,

we've got them covered. It's because they depend on

one of these independent claims that is shown here that

they are also covered by the same maneuver that we're

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 234 of 368
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

02:38

02:38

02:38

02:38

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:39

02:40

02:40

02:40

02:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

954

undertaking here.

Q. And is that a -- I'll call it a definitional

principle? In other words, in every patent case, it's

always the case that if the independent claim is not

infringed that the subsequent dependent claims are not

infringed?

A. Yes. That's correct.

Q. Okay.

A. And here's another repeat of the definition of

Active Path. And the reason why I underlined the

"dynamically created" and the "menu system is

navigated" is I'm going to show you that that doesn't

happen on the -- Microchip's old website.

Q. And can you just summarize for the jury, you

know, what aspect of the old website it was that

Mr. Sherwood kind of mapped to the Active Path or

accused of being the Active Path?

A. That would be the breadcrumb and the drop-down

menus that show up in the area underneath the graphical

user menu with the drop-down menus beneath a breadcrumb

that reads Home, Automotive Solutions, and Automotive

Applications.

Q. Do you agree with Mr. Sherwood that the old

website has an Active Path?

A. No, sir. I do not.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 235 of 368
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

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:40

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

955

Q. Why not?

A. The Active Path must be dynamically

constructed. I am preparing to show you that on the

old Microchip website, the breadcrumb information that

shows up and the drop-down menus that show up on the

web pages for that site are created in advance and

downloaded to the web page as part of the building of

the web page when it comes up on the site.

Q. And why have you shown this Hansel and Gretel

image here on the screen?

A. I just want to remind the jury that the

requirement for a dynamic breadcrumb is that it be

constructed as the user takes each step on a path and

therefore that it track precisely each step that was

taken.

If you think back to that slide I had earlier

in the tutorial, we had the three different ways to get

from A to G. Essentially, that means if I took the

middle path, I should see the links that I went through

on the middle path in the breadcrumb. And that's not

the way the old website works for Microchip.

Q. And I think you used the term kind of "static

path" and, you know, "dynamic path" or "dynamically

created active path."

A. Yes.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 236 of 368
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

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:41

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

02:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

956

Q. Can you help the jury understand the

difference between those two types of paths?

A. I certainly will.

THE WITNESS: Mr. Thompson, will you go

ahead -- yeah. Thank you.

A. Essentially, the difference between a static

path and a dynamic path is that a static path is always

the same. It's decided in advance. It doesn't get

created as we drop our breadcrumbs like Hansel and

Gretel did, and it's manually created.

As Ms. Mahar testified, they had to sit there

putting all those links together and taking hundreds of

person hours and lots of time to actually manually

create that stuff.

A dynamic path, on the other hand, it tracks

the menu choices as those choices get made. It happens

when those choices get made, which is what I mean when

I say it's built in real time.

And then, finally, it's automatically created

as part of the software so that each time you make a

selection and go down and collapse the cascade and

create a new breadcrumb, the elements that you have

selected to get where you are, are what shows up in

that breadcrumb.

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 237 of 368
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

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:43

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

957

Q. And what evidence do you have that the old

Microchip website does not infringe because it uses a

static-path approach?

A. I looked at multiple sources of evidence to

come to this conclusion. I examined the behavior of

the old website. And, fortunately, I got involved last

September or thereabouts, when there were still enough

of those old pages around that you could find them

easily and make them do their thing.

The second thing was I looked at the DRL

report that basically said that they noticed that there

were often occurrences where the navigation path and

the breadcrumb didn't match.

I also looked at transcripts from Microchip

employees to -- that explain that a hard-coded approach

was used, and that basically is the manual stuff that

Ms. Mahar was telling you about.

And then, finally, as I will show you a little

bit later on, there's actual source code in the

Microchip system that shows you those -- all of those

menu entries in a data block, where you can see that

information there, and that's what gets sent from the

server to the client. So we know that it's all figured

out in advance.

Q. And have you prepared a slide or two on each

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 238 of 368
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

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:44

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

958

of these points?

A. Gosh. I hope that's what we're going to next.

Q. All right. So this is an image from the

Defendant's Exhibit 463.

MR. JENSEN: And I think I'd like to ask

Mr. Thompson to just pull up Exhibit 463.

BY MR. JENSEN:

Q. And this is the video I think we've seen

before, but I would like to walk through it with your

explanation and narration as to what was going on.

A. You bet.

Q. While he's pulling that up --

MR. JENSEN: And maybe hit pause,

Mr. Thompson, for just a moment.

BY MR. JENSEN:

Q. I think a few minutes ago, Ms. Mahar was asked

if she knew, you know, where this video came from or

who had prepared it, and she didn't know.

Do you recall that?

A. I do.

Q. Do you know where this video came from?

A. Yes. I know where this video came from.

Q. Where did this video come from?

A. Well, I found this path on the microchip.com

website in late September. And in connection with

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 239 of 368
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

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:45

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

959

preparing materials for a disclosure that was to be

made to the other side in this case, I worked with Matt

Bonini, who's one of the paralegals at Mr. Jensen's law

firm, and we figured out how to capture the various

steps that you're about to see in video form so that it

kind of animates what's going on.

MR. JENSEN: With that background,

Mr. Thompson, why don't you go ahead and play the clip?

BY MR. JENSEN:

Q. And, Mr. Tittel, you can just kind of talk us

through what we're seeing and why this supports your

opinion.

A. Sure.

THE WITNESS: And, Mr. Thompson, I'm

going to ask you to pause from time to time. So keep

your wits about you.

A. All right. So what we're seeing now is the

URL being typed in so that we can get to Microchip in

the first place.

And then the next thing that's going to

happen --

THE WITNESS: And let's go ahead and

pause.

A. -- is we're going to open the homepage. And

as soon as the homepage opens, we start navigating, as

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 240 of 368
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

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:46

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

02:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

960

you see on the graphical user interface at the top of

this screen, which is why it's often called top nav.

So we're navigating the top nav.

THE WITNESS: Okay. Let her rip,

Mr. Thompson.

A. Then we go to Solutions, then we go to Tools

and Software.

THE WITNESS: Stop, Mr. Thompson.

A. Now, what we do when we get to Tools and

Software is we start mousing around inside the

drop-down menu for Tools and Software.

And, essentially, what we're doing is we're

looking to pick an item in the second-level hierarchy

so that we can drill down in the content that's

available on the microchip.com website. And in this

case, we're going to go to the Embedded Software

Center.

THE WITNESS: Okay. Let her rip,

Mr. Thompson.

Hold it right there.

A. When we get into the Embedded Software Center,

we see there's a number of different options there, and

we're picking one called the MPLAB® Connect

Configurator, which we know from the title of the

group, Embedded Software Center, is a collection of

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 241 of 368
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

02:47

02:47

02:47

02:47

02:47

02:47

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:48

02:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

961

different kinds of software that Microchip makes

available to its customers to help them visualize,

analyze, model, and do other things to help -- to make

better use of their products.

THE WITNESS: So let's go ahead and click

on that MPLAB® Connect Configurator. Hold it right

there.

A. Now, we know that what happens when we click

on the result of a menu cascade, as you just saw there,

we're going to collapse all the menus -- you see

they're gone -- and then we're going to have a

breadcrumb show up on the top of the page.

And if you look at the elements in that

breadcrumb, you must recall that we didn't visit either

Interface and Connectivity or USB in the trail that we

just took to get to the MPLAB® Connect Configurator.

Now, obviously this is another valid path

through the website to get you to that web page,

because that's the web page that's showing. But it's

not the path that we took.

And what we're going to be doing in the next

part of the presentation that we look at is I'm going

to be telling you why that's so. You've already gotten

a taste of why that's so from Ms. Mahar's testimony.

I'm going to show you in detail.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 242 of 368
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

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:49

02:50

02:50

02:50

02:50

02:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

962

BY MR. JENSEN:

Q. And how many links are present in the path

that's highlighted in red?

A. Four.

Q. And how many selections were made from the top

navigation menu?

A. Three.

MR. JENSEN: Mr. Thompson, you can go

ahead and take that down.

BY MR. JENSEN:

Q. And what is shown on this slide? Is it just a

kind of still screen image comparing the --

A. Yeah. Essentially what we're doing is we're

showing you what we went through on the left-hand side,

and we're showing you what pops up as the result when

the menus collapse and the selected page pops up.

Q. And was this just a, you know, like a

cherry-picked example, Mr. Tittel, of how the old

website operated?

A. Well, we heard testimony from Ms. Mahar, and

we also heard testimony from Mr. Sherwood, that there

were numerous pages on the microchip.com website, a

number that the burndown chart shows us has been

steadily declining over time. But that there were

pages on the site that continued to show this behavior.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 243 of 368
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

02:50

02:50

02:50

02:50

02:50

02:50

02:50

02:50

02:50

02:50

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

02:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

963

Q. And what evidence do you have that this was

not a kind of a one-off exception to how the old

website operated?

A. Well, when I conducted my count of pages that

were left over from the old website, I still found some

left over. Although I can't find any more now. And

also because we can see certain pages where things

don't match up.

Q. So did you personally navigate and identify

some number of old website pages that demonstrated this

static path functionality?

A. Yes.

Q. Okay. Do you have any other third-party

documentation that confirmed your initial findings?

A. Yes. Well, we've seen the report -- or,

actually, reports from DRL where the first one shows

that navigation on the page doesn't match top

navigation. And then we saw the later design guide

where they were trying to solve that problem by going

to what they called a real breadcrumb.

Q. And how frequently did DRL say this problem

manifested itself?

A. Well, what they say is "often." They don't

actually specify a number. But they say -- to me

"often" means enough to notice, but not everything.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 244 of 368
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

02:51

02:51

02:51

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:52

02:53

02:53

02:53

02:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

964

Q. And let me ask a follow-up question on that.

It sounds like, you know, often there would be a

mismatch between the breadcrumb and the path that was

navigated, but not always; is that correct?

A. Yes. That's essentially what I just said.

Q. And what about in the circumstance where the

path does match on the old website? Is it your opinion

that that would be an Active Path or an infringement of

the asserted claims?

A. No. I will show you that it remains static

whether it matches or not. I would say that if it did

match, it was kind of like you won the scratch-off or

something. Not a big one, but you hit it.

Q. All right. And what's the third point that

you have on your summary slide here?

A. Well, we heard in Ms. Mahar's testimony here

in the courtroom, and there's actually a transcript of

a deposition called the 30(b)(6) deposition where she

testified about "hard coding paths." And she talked

about the manual effort involved in doing that work,

and the fact that she actually did some of the typing

herself.

Q. And why was this hard-coded or, you know,

fixed static-path approach used by Microchip?

A. Well, I can't do any better than to repeat

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 245 of 368
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

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:53

02:54

02:54

02:54

02:54

02:54

02:54

02:54

02:54

02:54

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

965

Mrs. Mahar explanation, which is that they were putting

a Band-Aid on a building that was getting ready to fall

down. And essentially what they did was they looked at

how the left nav on the website was built and they

figured out how to turn it into a horizontal

equivalent.

And what that ended up meaning is that

sometimes it matched and sometimes it didn't. And it

kind of depended on where you were navigating and what

was in the left nav before it got translated into its

horizontal equivalent.

Q. Even in those instances where there would be a

superficial match, I'll call it, was the static-path

approach still used on the old website?

A. Yes. They did not build breadcrumbs

dynamically. And, again, we'll be looking at a data

structure that shows the content of those items

shortly. And they didn't track what the user was

doing. Once you got to a page, you looked up what path

was associated with it and a link that matched.

Q. Do you think that a static-path approach is a

good approach to create a breadcrumb?

A. It is a God-awful way to do it.

(Laughter.)

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 246 of 368
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

02:54

02:54

02:54

02:54

02:54

02:54

02:54

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

02:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

966

Q. All right. Let's take a look at the fourth

bullet point that you have here, the source code. And

what can you tell us about that? And what code did you

look at? What was the analysis that you went through?

A. Well, I got a number of files from the

information that was shared with Caddo. And in looking

at those files, I discovered a data structure that

includes the content of the menus.

Q. And this was the source code for which website

that you're talking about here?

A. This is the old microchip.com website.

Q. And what did the source code reveal,

Mr. Tittel?

A. Well, among other things, I found a comment

that explained how they were transitioning from what

we've called the legacy site, or the site before they

did the old website conversion. And it says that they

are performing a number of presentation changes to the

way things get laid out on the web page to make changes

to remove the left navigation and make the breadcrumbs

work. This is not actually code. It's just a comment.

Q. And how do you know that this source code

relates to the old website as opposed to the redesigned

website?

A. Well, I can tell you in two ways, actually.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 247 of 368
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

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:56

02:57

02:57

02:57

02:57

02:57

02:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

967

We know that the old website ran on the Sitefinity

content management system. And if you look at the --

above the middle of the URL there, the word

"Sitefinity" shows up.

And I happen to know that Sitefinity has a

number of file extensions that tell you what the

content management system is going to do. And if you

look at the end of that file, it says SCSS. Well,

that's not actually a valid web file extension, but it

is a valid file extension inside of Sitefinity.

And, basically, what it means is this is a

Sitefinity file that's going to create a CSS style

sheet that I'm going to send to a browser somewhere

after I fiddle around with its innards a little bit.

Q. Have you written CSS style sheets before,

Mr. Tittel?

A. Yes. I actually -- I can't -- I think I've

written two books on CSS.

Q. Very good.

MR. JENSEN: Mr. Thompson, could you

bring up Defendant's Exhibit 205, please?

BY MR. JENSEN:

Q. And, Mr. Tittel, what are we looking at here

in Defendant's Exhibit 205?

A. This is an HTML file that's getting loaded

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 248 of 368
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

02:57

02:57

02:57

02:57

02:57

02:57

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

02:58

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

968

down to a web page. And it begins with a huge

JavaScript that has a boatload of data in it that's

going to be used to build the web page. And I think

this page is something like 30 or 40 pages long.

THE WITNESS: Mr. Thompson, can you give

us an indication of the size of this file?

A. 32 pages long. Okay. Let's go back to the

beginning.

BY MR. JENSEN:

Q. And was this one of the source code files that

you reviewed in conducting your analysis?

A. Yes. It is.

Q. And what did you learn from this file about

the operation or implementation of the old website as

it relates to the static path?

A. I'm going to show you.

THE WITNESS: Mr. Thompson, please jump

us to Line 80 of the file.

A. Now, it won't take you long to figure out that

Line 80 isn't really a line. It's a huge chunk of

data. And it goes on for, like, pages and pages and

pages, but --

THE WITNESS: You can stop it right

there, Mr. Thompson.

A. If you look at what's inside that data block,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 249 of 368
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

02:58

02:58

02:58

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

02:59

03:00

03:00

03:00

03:00

03:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

969

what do you see? After you get through a bunch of

introductory stuff, you see a bunch of items that say

"title" and then "link."

And if you keep reading down and looking at

the difference between the title entries and the link

entries, you'll see that the title displays the text

that shows up in the whole breadcrumb. And then the

link that follows afterward is a URL that -- oh, I

should say a partial URL because we know some things

about what it's going to look like when it gets fully

built, so we don't actually have to include all of it.

We know that all of these are going to start

with https/www.microchip.com. And so we'd only capture

the part that comes after that. And that's what's in

there.

And if you look at those URLs, those are the

URLs that show up on the web page. And if you look at

the title, that's the title that shows up for that page

when you open it up.

And furthermore, this is the stuff -- and I

just shudder to think of it -- this is the stuff that

Ms. Mahar and her team had to key in by hand in order

to put this data into the database so that this page

could be put together and then shipped to the user to

be set up.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 250 of 368
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

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:00

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

970

And the reason that I say it's static and that

it doesn't track dynamic user activity is that

everything's in here. It's deferring in advance. And

it doesn't matter what the user clicks on to get from

the top of the microchip.com website to wherever they

wind up. Because they're going to be using the text

from the title part of this data block, and they're

going to be using the fully-expanded URL version of the

link part from this data block.

BY MR. JENSEN:

Q. Was this an efficient way to implement a path

menu on a website?

A. No.

Q. And why is that?

A. Well, where to begin? As Ms. Mahar has

explained, when you do things this way, you have to

keep up with it by hand. Nobody -- I mean, computers

are there to take over the repetitive and mindless

drudgery of making stuff like this happen. That's one

reason.

Another reason is this thing's pretty big.

MR. JENSEN: And, Mr. Thompson, could you

just scroll down? I'd like to --

A. Yeah. It's 32 pages long.

BY MR. JENSEN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 251 of 368
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

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:01

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

03:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

971

Q. -- see how -- yeah, this particular line.

Line 80?

A. Yeah. 32 pages long. Which means tens of

thousands of characters. And when you have that much

data, you have to transfer it from the server to the

client. And it takes time to do that. And that's not

going to help the load time -- page load times improve.

And we already know from Ms. Mahar that one of

the problems they had with their site was that the page

load times were too long. I think we're looking at one

of the reasons why.

Q. Would it be necessary to download this amount

of information if a website used a dynamic path

approach?

A. To do a dynamic breadcrumb would involve

probably 1 percent of this amount of data.

MR. JENSEN: Why don't we exit out of

this, Mr. Thompson, and go back to the slides?

BY MR. JENSEN:

Q. Did you want to comment further on the source

code here or -- it's in your slides, so I don't want to

cut you off, but...

A. Well, this is the breadcrumb navigation file

that actually ends up calling the other file, and

that's just to show you it's part of the overall

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 252 of 368
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

03:02

03:02

03:02

03:02

03:02

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:03

03:04

03:04

03:04

03:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

972

software chain.

Q. And what have you blown up here on this slide

out of the source code?

A. This is where we're walking through and

grabbing things to put all the -- the information that

we're downloading from the server to the client that we

looked at in the other file is -- you could see it was

not complete and it wasn't perfectly formatted.

This is actually doing the work to go through

and create the stuff that's going to allow the cascade

to appear on screen, and then to allow the associated

link to be invoked when we select one of those items.

Q. Let me see if I understood this correctly.

This file here sort of pretties up and makes

presentable the content from the Exhibit --

A. Well, that's one way of putting it. Another

way of putting it would be to say it's what makes --

it's what turns the data into stuff that's going to

work on the web page. Because all we have really in

the other item is a bunch of raw data, and we have to

turn it into the format and the kinds of strings that

work in a web browser. And this drives that process.

Q. Okay.

MR. JENSEN: I would like to move the

admission of Defendant's Exhibit 205.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 253 of 368
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

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:04

03:05

03:05

03:05

03:05

03:05

03:05

03:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

973

MR. DEVLIN: Sorry. Was 205 the code?

MR. JENSEN: That was the HTML that we

were just looking at.

MR. DEVLIN: The Line 80 thing?

MR. JENSEN: The Line 80 thing.

MR. DEVLIN: Yeah. No objection. Thank

you.

THE COURT: It'll be admitted.

BY MR. JENSEN:

Q. Could you summarize for us now, Mr. Tittel,

your conclusions and findings as it related to the old

website?

A. Sure. Essentially, what I'm saying is that

the old website's breadcrumb paths were not dynamic,

that they were hard-coded or established in advance.

They're static, they don't change, and this is not the

same thing as dynamically created.

That means also that the paths don't change if

the user's selection changed. No matter which path you

take to get from the starting point to the ending

point, the path that's in that data block is going to

be the one that shows up in the breadcrumb.

So that's why, of course, the paths don't

always --

THE WITNESS: Please go back to the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 254 of 368
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

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:05

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

974

previous slide, Mr. Thompson.

A. -- these paths don't always reflect how a user

got where they are from where they started.

And because they come from the database from a

data structure that was defined a while back, I sort of

took a little bit of poetic license and say the paths

were created a long time ago, but that's in computer

time, not necessarily in human time. But they're

definitely not created as the menu system is navigated.

BY MR. JENSEN:

Q. And what does that mean in the context of the

asserted claims in this case?

A. It means that they can't be infringed because

all of the claims require an Active Path and an Active

Path is dynamically constructed.

Q. Thank you.

All right. So you've covered the old website

at this point.

And did you undertake an analysis of the

redesigned website?

A. Yes. I did.

MR. JENSEN: Let's take a look at that.

BY MR. JENSEN:

Q. And I think we've seen this slide before. Why

don't we jump -- well, let me just ask this question:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 255 of 368
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

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:06

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:07

03:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

975

Did the redesigned website operate the same as or

differently than the old website in relevant part to

this case?

A. It operates differently.

Q. Okay. How so?

A. As we're about to see, on the old website, if

you hovered over elements in the breadcrumb, you would

get a drop-down menu. When you hover over elements in

the breadcrumb on the new website or the redesigned

website, you don't get a drop-down menu.

MR. JENSEN: Mr. Thompson, can you pull

up the redesigned website in a web browser, please?

And this will be microchip.com.

A. Internet's slow.

Okay. There we are.

So we want to go to the Products one; is that

correct?

BY MR. JENSEN:

Q. Take your pick.

THE WITNESS: Let's go to Clock and

Timing. Let's go to Atomic Clocks. And let's go to

Embedded Atomic Oscillators.

A. Hey. Look at that. Little chips that do

interesting things.

Notice that exactly what we clicked is exactly

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 256 of 368
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

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:08

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

976

what shows up in the breadcrumb that's beneath the top

nav there.

As Mr. Thompson is hovering the mouse over the

various elements of the breadcrumb, we'll notice two

things. One of them is that nothing happens when we

hover over them in terms of menus jumping out.

The other thing is that the final entry in the

list is a -- what's called a "leaf note," and it

doesn't do anything. It's just a document that we've

reached the end of the line as far as the breadcrumb

trails go. And we don't see any brothers or sisters to

that web page in this display.

BY MR. JENSEN:

Q. And did Mr. Sherwood testify that he believed

the redesigned website infringed the Caddo patents?

A. At trial, he did not.

Q. Okay. And what conclusion did you reach as to

infringement of the redesigned website?

MR. JENSEN: And you can take that down,

Mr. Thompson.

A. I also reached the conclusion that it did not

infringe.

BY MR. JENSEN:

Q. And in terms of the claim language, let's see

if we can take a look at what element it was that was

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 257 of 368
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

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:09

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

977

not satisfied.

A. It's the one at the end of Claim 1 of the '301

that requires the user to be able to browse all items

on any level of the hierarchical information structure.

So basically what that means in English is if

you hover the mouse over one of the elements of the

breadcrumb, a menu's supposed to pop down. And it

doesn't do that on the redesigned website.

Q. And we're looking here at Claim 1 of the '301

patent?

A. Yes. That's right.

Q. Do all of the other asserted claims in this

case across the six asserted patents have a -- have the

same or a similar requirement?

A. Yes. They do.

Q. Okay. And is your opinion as to

noninfringement the same for all of the asserted claims

in this case?

A. It is.

Q. Okay.

A. And this is just showing you that the active

link opens up a hierarchical menu when you mouse over

the link itself, and then you can mouse around in the

cascade until you select something. And that's what

the redesigned Microchip website does not have.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 258 of 368
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

03:10

03:10

03:10

03:10

03:10

03:10

03:10

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:11

03:12

03:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

978

Q. Okay. So this is an example of something in

the patent that is not present in the redesigned

website?

A. Correct.

Q. And is it your opinion and testimony here

today, Mr. Tittel, that the all-elements rule is not

satisfied by the redesigned website?

A. Yes. As I just explained, because we can't

satisfy the requirements of the final term of the

claim, the claim is not infringed.

Q. All right. That was much shorter than the old

website analysis.

All right. Let's see if we can finish up this

segment here by looking at the Forum website.

A. Here we go.

Q. And what are you showing on this slide?

A. What I'm showing on this slide is, first of

all, that the method portion of the claim is not met by

Microchip; that other people are using the Forum site.

And so a method claim requires that the same

actor perform all steps of the method. And if

Microchip is not the actor, Microchip cannot infringe.

So since Microchip is not the actor, they don't

infringe.

Q. And I believe you testified earlier the Forum

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 259 of 368
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

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:12

03:13

03:13

03:13

03:13

03:13

03:13

03:13

03:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

979

website is a platform for kind of third-party users to

collaborate and communicate?

A. Right. It's a community site where people can

get together and dig into Microchip Technology's

software and related subject matter.

Q. Okay. And what is the second item that you

have highlighted?

A. It's basically what I'd call the

correspondence item. It speaks to the dynamic tracking

of the Active Path part of the patents, where it says

that as you select an item in one of the -- in either

the top nav or in the cascading menus, a corresponding

item must show up in the breadcrumb.

And, among other things, that means that the

same number of items that you select should be the same

number of items that show up in the breadcrumb.

Q. All right. Let's take a closer look at that.

MR. JENSEN: And, Mr. Thompson, could you

pull up the Forum website, please?

But before you do, let me just pause

here.

BY MR. JENSEN:

Q. And what aspect of the Forum website is it

that Mr. Sherwood kind of maps to the Active Path and

the correspondence requirement?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 260 of 368
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

03:13

03:13

03:13

03:13

03:13

03:13

03:13

03:13

03:13

03:13

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

03:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

980

A. Well, it's shown in red, boxed in red there,

right underneath the top nav. And the elements that

are encircled in a red box are the ones that are

supposed to be an Active Path.

Q. Okay. All right.

MR. JENSEN: Let's go to the Forums

website, Mr. Thompson, please, at microchip.com/forums.

BY MR. JENSEN:

Q. And it looks like across kind of the top

there, right underneath the Microchip logo, are kind of

three items. It says Forums, Posts, and Page Extras.

Do you see those?

A. Yes, sir. I do.

Q. Did Mr. Sherwood opine that the Posts or the

Page Extra items had anything to do with his opinions

in this case?

A. Not that I'm aware of.

Q. Did you investigate the Posts and the Page

Extras items?

A. I did.

Q. Okay. And what conclusion did you reach as to

those two items in terms of your infringement analyses?

A. I concluded that they didn't behave like, and

in one case, resemble the requirements of the patents.

Why don't we go to Page Extras and I'll show

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 261 of 368
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

03:14

03:14

03:14

03:14

03:14

03:14

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

981

you what I mean. That's the one that doesn't resemble

the requirements of the patent.

If you go to Page Extras, you get something

that -- this is something called a "heat map," where

the size of the text tells you how often the topic

comes up.

And so, basically, what this shows is an

analysis of the various threads in the Forums, so that

you can see which ones are the most popular and you can

click on them if you want to investigate further.

So it's kind of a -- there's that thing on

Google where you say "random choice" or something like

that, and this is something similar. Although, it is a

little bit less random.

Q. So this really has nothing to do with the

issues in this case?

A. No. It does not.

Q. Okay.

MR. JENSEN: Let's take a quick peek at

Posts.

A. What we see in Posts are, in this case,

latest -- there's different buttons at the top there,

as you can see. The one that comes up by default is

Latest Posts, and these are just the most recent items

that have been added to the Forums. And you can click

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 262 of 368
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

03:15

03:15

03:15

03:15

03:15

03:15

03:15

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

982

on them and then visit them.

MR. JENSEN: Yeah. Mr. Thompson, why

don't you go down and just --

A. Just click on the first one --

(Simultaneous speakers.)

MR. JENSEN: -- down below.

A. Yeah. There you go.

Now, notice what the breadcrumb looks like as

a result of having picked two things. How many items

do I count there? I count one, two, three, four, five.

And we clicked two. So something's fishy here.

BY MR. JENSEN:

Q. Does that indicate that the Forum site has a

required correspondence in the claim?

A. In this case it does not have the required

correspondence.

Q. Okay. Now, let's take a look at the Forums

item there. And let's go ahead and, Mr. Tittel, why

don't you pick a navigation path?

A. Yeah.

THE WITNESS: Go ahead and go to Clock

and Timing since we were looking at atomic clocks

before. We might as well stay with time since it's on

everybody's mind.

Go ahead and pick Clock Solutions. And

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 263 of 368
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

03:16

03:16

03:16

03:16

03:16

03:16

03:16

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

983

let's see what kind of posts we've got there.

A. All right. So we don't have that many, which

is good because we don't have to look at a lot of

stuff.

THE WITNESS: Now, pick the top one,

Mr. Thompson, and let's look at the --

A. So, again, we've picked three things, and we

see five in the breadcrumb.

BY MR. JENSEN:

Q. Now, let's do another example. And this time

we won't make sort of the final selection there.

MR. JENSEN: So let's go to Forums.

BY MR. JENSEN:

Q. And why don't you pick another path,

Mr. Tittel?

THE WITNESS: Let's do a 32-Bit

Microcontroller, PIC32 Topics.

BY MR. JENSEN:

Q. So how many selections were made in that

process right there with the drop-down menu?

A. Three.

Q. And what -- was it three or two?

A. No. I'm sorry. It's three.

Q. I think I got -- I might have miscounted.

Let's go back to the homepage. And then I should have

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 264 of 368
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

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:17

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

984

asked you to count in the first instance.

A. Yeah.

THE WITNESS: No, don't click that one.

And I'll show you why we don't want to click that one.

That's another thing we're going to talk about. Click

on the Microchip at the top of the slide.

BY MR. JENSEN:

Q. So we're at a clean homepage here; is that

right?

A. Right.

THE WITNESS: So go to Forums. That's

one -- we're mousing over that. And we're going to

32-Bit Microcontrollers and then we're sliding over to

General PIC32 Topics.

BY MR. JENSEN:

Q. And how many links are there in the resulting

accused breadcrumb?

A. Four.

Q. And is that more, the same, or less than the

number of selections that were made?

A. It's more.

Q. Okay. And what happens if we click on All

Forums?

A. Yeah. I was just going to ask the same

question.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 265 of 368
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

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:18

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

03:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

985

THE WITNESS: Let's go ahead and click on

All Forums, Mr. Thompson. It's the second item on the

breadcrumb there on the top of the slide.

MR. JENSEN: At the top?

A. There we go. Thank you.

Notice that what we get here is we don't get a

menu. We get a web page. And the web page has all of

the Forums.

THE WITNESS: If you scroll down,

Mr. Thompson.

A. I can show you that it has all of the Forums

on the Microchip Forums website. It's not the way that

clicking an active link is supposed to work. And when

you click an active link, you're supposed to get a

drop-down menu that lets you pick stuff.

This is giving you a huge honking list of

stuff that you have to scroll -- scroll through for

quite some while to see everything that's available.

BY MR. JENSEN:

Q. All right. Why don't we close out of that and

come back to the slide presentation and see if we can

just wrap up this segment.

And then I might request that we take a short

break.

A. Thank you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 266 of 368
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

03:19

03:19

03:19

03:19

03:19

03:19

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

03:20

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

986

Q. All right. I think we can just tie this up,

and it'll be a good clean break point.

And so in terms of the asserted claims here --

and we've got Claim 1 of the '301 patent on the screen.

What conclusion did you reach by your analysis of the

Forum website?

A. I reached the conclusion that Microchip does

not infringe the preamble, and that it's not -- that

the number of links that -- the number of items that

gets selected does not match the number of items that

gets produced in the breadcrumb, so that we do not have

one active link corresponding to each of the items

selected.

Furthermore, I also pointed out that, as such,

the All Forums element of the breadcrumb is not a

cascading menu and therefore is also not an active link

either.

Q. So I believe that concludes the section on

your opinions as to noninfringement of the various

Microchip websites; is that correct?

A. Yes, sir. It is.

Q. All right.

MR. JENSEN: Would it be all right if we

took an afternoon break?

THE COURT: Sure.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 267 of 368
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

03:20

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

03:21

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

987

MR. JENSEN: Thank you.

THE COURT: Ladies and gentlemen of the

jury, if you would remember my instructions not to

discuss the case amongst yourselves, we'll be in recess

for about ten minutes.

THE BAILIFF: All rise.

(Jury exited the courtroom.)

THE COURT: Thank you. You may be

seated.

Mr. Tittel, you may step down.

THE WITNESS: Thank you, sir.

THE COURT: Is there anything that we

need to take up?

MR. DEVLIN: Not from the plaintiff.

THE COURT: Counsel?

MR. JENSEN: No, Your Honor.

THE COURT: Very good.

And I'm not going to hold you to this.

How much -- about how much longer do you think you

have?

MR. JENSEN: The good news is, I think

we're through the bulk of it. We've got a few --

THE COURT: No. I don't care.

MR. JENSEN: Probably -- I mean, every

time I estimate --

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 268 of 368
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

03:21

03:21

03:21

03:21

03:21

03:21

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

988

THE COURT: An hour?

MR. JENSEN: 45 minutes, roughly, would

be my guess.

THE COURT: All I care about -- my plan

would be, if we can, to finish him today.

About how long -- unless you tell me you

have -- how much --

MR. JENSEN: And I'm happy to shorten

that. I think --

THE COURT: No, no. You don't need to do

that.

MR. DEVLIN: Yeah. I understand that --

THE COURT: About how long --

MR. DEVLIN: -- I think we can probably

do that. Unless -- I don't want to speak while the

witness is here. I believe we can probably do that.

THE COURT: I just -- I prefer to get

witnesses done in one chunk --

MR. DEVLIN: Understood.

THE COURT: -- if we can.

MR. JENSEN: We'll keep that in mind.

THE COURT: Yeah. I don't think it's

fair to the jury -- to him or the jury to be hanging

overnight in the middle of --

Yes, sir.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 269 of 368
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

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:22

03:23

03:23

03:23

03:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

989

MR. DEVLIN: May I ask on a timing issue?

So, Your Honor, I'm looking at the clock. If we can go

a little past 5:00 or --

THE COURT: Oh, no. We're going to go

past 5:00.

MR. DEVLIN: Oh, great. Then we will

be --

THE COURT: No, no, no. I'm -- that's

what I'm saying is we are going to go until we finish

with Mr. Tittel.

MR. DEVLIN: Understood. Got it. Then

there's not going to be a -- first of all, there's not

going to be a problem when you put it that way anyway,

Your Honor.

THE COURT: We will go until we finish

him.

Your next witness after him would be a

damages expert?

MR. JENSEN: We might have a deposition

clip to play. Let me check. We've got like a

20-minute deposition video. But that's flexible.

THE COURT: And then damages expert?

MR. JENSEN: And then we have one more

fact witness. It'll be relatively short.

THE COURT: So we'll finish with the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 270 of 368
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

03:23

03:23

03:23

03:23

03:23

03:42

03:42

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

03:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

990

evidence tomorrow?

MR. JENSEN: Oh, absolutely.

THE COURT: Okay. Very good.

MR. DEVLIN: Thank you, Your Honor.

(Recess taken.)

THE BAILIFF: All rise.

THE COURT: Please remain standing.

(Jury entered the courtroom.)

THE COURT: Thank you. You may be

seated.

Counsel?

MR. JENSEN: Mr. Thompson, could we pull

the slide deck back up?

BY MR. JENSEN:

Q. And by way of preview, Mr. Tittel, we've

covered your noninfringement opinions. I do have one

or two more questions on that.

And then I just wanted to forecast for the

jury that the last three sections will be nowhere near

as long as the prior sections. Because I -- your

expectations may be different having heard from

Mr. Sherwood.

So to finish up on noninfringement,

Mr. Tittel, some of the slides we looked at focused on

the '301 patent, Claim 1, as an exemplary or

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 271 of 368
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

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:44

03:45

03:45

03:45

03:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

991

representative claim; is that correct?

A. Yes.

Q. Okay. I just want to kind of check the box

and confirm that the elements and requirements we've

been talking about, in fact, are in all of the asserted

claims, and we did that for the Active Path, correct?

A. That is my opinion. Yes.

Q. Okay. So let's --

MR. JENSEN: Mr. Thompson, could you pull

up the Demonstrative Slide 32 from Mr. Sherwood's

presentation?

BY MR. JENSEN:

Q. And what is shown on this slide, Mr. Tittel?

A. We're trying to show all of the independent

claims.

Q. Okay. And what aspect of the independent

claims is represented on this slide?

A. The preamble, which includes the mention of

the method.

Q. Okay. And just for the record, I'll note that

this includes the preambles for Claim 1 of the '411

patent, Claim 1 of the '301 patent, Claim 1 of the '517

patent, Claim 1 of the '836 patent, Claim 8 -- or

Claim 1 of the '880 patent, and Claim 14 of the '127

patent.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 272 of 368
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

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:45

03:46

03:46

03:46

03:46

03:46

03:46

03:46

03:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

992

And I believe there may be one more claim that

perhaps couldn't be squeezed onto the slide.

MR. JENSEN: So I'll ask Mr. Thompson to

just pull up the '836 patent.

A. Yes. We need to look at Claim 8.

MR. JENSEN: Yes. And we'll turn to

Claim 8 of the '836 at the back. And maybe just zoom

in there.

A. Indeed, it is a method claim.

BY MR. JENSEN:

Q. And what does that preamble read?

A. The preamble reads: A method for navigating

websites, including a plurality of hierarchically

organized web pages, said method comprising.

Q. Okay.

MR. JENSEN: We can take that exhibit

down, Mr. Thompson, and go to Demonstrative Slide 63 of

Mr. Sherwood's presentation.

BY MR. JENSEN:

Q. And what is the title of this slide,

Mr. Tittel?

A. Asserted Patents Claim Comparison.

Q. And could you read -- since we started with

the '301 patent, could you just read what's labeled as

Claim 1.2 or Claim 1, Element 1.2 for the '301 patent?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 273 of 368
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

03:46

03:46

03:46

03:46

03:46

03:46

03:46

03:46

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

03:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

993

A. Certainly.

Dynamically constructing an Active Path as a

sequence of active links as items are selected using

the graphical user menu system, with one said active

link corresponding to each of the items selected, said

active links providing direct access to one of a

function, corresponding level and menu item without the

need to navigate using said graphical user menu system.

Q. And this is the claim element that has the

Active Path requirement and the correspondence

requirement that you testified about?

A. Yes, sir.

Q. And do all of the independent claims that are

asserted in this case have the same or a substantially

similar requirement?

A. They do.

Q. And just for the record, I'll note which

patents and claims are listed on this slide. It's

Claim 1 of the '411 patent, Claim 1 of the '301 patent,

Claim 1 of the '517 patent, Claim 8 of the '836 patent,

Claim 1 of the '880 patent, and Claim 14 of the '127

patent.

And I believe there is one claim from the '836

patent, an independent claim that's being asserted

which, again, for whatever reason, isn't shown on this

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 274 of 368
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

03:47

03:47

03:47

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:48

03:49

03:49

03:49

03:49

03:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

994

slide.

MR. JENSEN: So I'd ask Mr. Thompson to

just pull up the '836 patent. And if we can go to

Claim 1.

And let's go to the -- kind of the next

element in the claim.

A. Yeah. Okay. He's --

And you can see at the top of the lower box

that we have the corresponding requirement there.

BY MR. JENSEN:

Q. And it also requires an Active Path as well?

A. Yes, sir. That's correct.

Q. And it's got the correspondence limitation?

A. Yes, sir. That's correct.

MR. JENSEN: Thank you, Mr. Thompson.

You can pull that down.

BY MR. JENSEN:

Q. All right. Turning back to your slide

presentation, Mr. Tittel, what is the second topic that

we're going to address?

A. We're going to look at noninfringing

alternatives for the old Microchip website.

Q. And can you remind the jury, what is a

noninfringing alternative? Or what does a

noninfringing alternative analysis entail?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 275 of 368
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

03:49

03:49

03:49

03:49

03:49

03:49

03:49

03:49

03:49

03:49

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

03:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

995

A. Well, it's what you could have picked instead

of concluding the hypothetical negotiation between

Caddo and Microchip. So it is something that could

have been substituted for the completion of that

hypothetical negotiation.

Q. And when you conduct a noninfringing

alternatives analysis, what assumptions or what

required considerations must be made?

A. Well, the primary ones are that you have to

assume that, indeed, the accused instrumentalities do

infringe. And the second thing that you have to ensure

is that the options that are presented as noninfringing

alternatives are commercially acceptable.

And what "commercially acceptable" means is

that they're not going to impose an undue burden on

costs, performance, and other factors related to

commercial acceptability.

Q. And at what point in time is the noninfringing

alternative analysis assessed?

A. Well, the maximum damages period, as we heard

from the Caddo damages expert, is six years. So that

would take it back to 2014, based on the filing date of

the lawsuit.

Q. And in your opinion, Mr. Tittel, from 2014 to

the present, what noninfringing alternatives were

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 276 of 368
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

03:50

03:50

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:51

03:52

03:52

03:52

03:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

996

available to Microchip?

A. Well, I list a number of them on the next

slide. And they include things like removing the

drop-down menu from the breadcrumb, which is the

redesigned website.

Removing breadcrumbs completely, as is the

case on the graphics and chip-making company

nvidia.com.

Replacing breadcrumbs with search-based

function and filters as on Amazon.

Or using some other kind of forum website

solution that does not use the breadcrumbs with

drop-down menus such as Forumbee.

We could actually talk about all of those

things, but we don't have to. Because as you'll see on

the next slide, I'm going to raise the question of what

noninfringing alternative is microchip.com already

using?

And because the redesigned version of the

microchip.com website is not accused of infringing, and

they're using it already, they already have a

noninfringing alternative.

And because they've already spent probably

most of the money to implement this solution already,

and because as you heard from Ms. Mahar, they achieved

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 277 of 368
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

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:52

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

997

the improvement in load times and user feedback that

they were looking for, they've kind of already solved

the problem as far as noninfringing alternatives go.

One of the points that one might take from

this is that breadcrumbs with drop-downs are not

necessary for website navigation, at least as far as

Microchip is concerned. And indeed, Digital Range Labs

advised Microchip to remove the drop-down menus in

2019. And that's what Microchip did.

Q. In your opinion, Mr. Tittel, is the

noninfringing alternative of a breadcrumb without a

drop-down a commercially acceptable alternative, such

as the redesigned website?

A. I think I've already said that in different

terms, so I can only agree with you.

Q. And would -- you mentioned that there could be

some cost associated with making changes to convert to

a noninfringing alternative; is that correct?

A. Yes.

Q. What kind of scope or scale of effort or, you

know, dollars and cents would be required to implement

such a change?

And let me make sure I'm asking the question

clearly. I don't want to know how -- how hard would it

be to redesign your website from the ground up, as

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 278 of 368
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

03:53

03:53

03:53

03:53

03:53

03:53

03:53

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:54

03:55

03:55

03:55

03:55

03:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

998

Microchip did, but only to make the changes necessary

to remove a drop-down menu from a breadcrumb path?

A. It would be a short and not terribly expensive

project.

Q. And you mentioned an alternative sort of forum

solution. Can you tell us a little bit about that?

A. Yes. I actually looked around at the

marketplace. I didn't know about the Salesforce option

until I heard Mrs. Mahar's testimony earlier this

morning. But I did find a number of third-party forum

websites that don't use breadcrumbs with drop-down

menus.

And it looked like Forumbee got good reviews

and provided the kind of scale that would be needed to

support the Microchip user community. And it does

indeed serve as a low-cost alternative to the ASP

Playground version of the Forums.

Q. So would the Forumbee software basically be

a -- like a software platform that a party could

license or buy and then implement themselves?

A. They -- well, again, any time you buy a piece

of software that delivers content to users, you're

generally going to have to do some configuration work

to set it up. You want to display your company logo,

you want to choose the color scheme, you want to name

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 279 of 368
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

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:55

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

999

things so that they will make sense to people.

And in this case I think it would be what you

call a "migration task." Because you would be

migrating the way the Forums are set up in ASP

Playground to a similar structure that you would have

to define inside of the Forumbee environment.

Q. And so this isn't like a software solution

that Microchip would have to develop in the first

instance. They could buy it from somebody else,

configure it or tweak it, and then it would be ready to

go on their site?

A. Right. This is the kind of job that you could

probably automate reasonably easily and achieve in

weeks.

Q. And what is it about the Forumbee solution

that makes it noninfringing?

A. It doesn't have a drop-down menu with

breadcrumbs.

Q. Does it have a breadcrumb menu and it's just

missing the drop-down? Is that...

A. I can't remember.

Q. Fair enough.

A. I can see now by looking at the web page that

it does have a breadcrumb. So obviously it lacks a

drop-down menu.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 280 of 368
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

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:56

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:57

03:58

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1000

Q. It's been a long day. I understand.

A. Thank you for showing me that slide.

Q. And I believe we heard Mr. Sherwood testify

yesterday that the Forumbee solution was available back

in 2014.

Do you recall that?

A. I do.

Q. And so that would have been an available

alternative at that point in time?

A. Yes.

Q. Are you aware of any companies that, in fact,

use Forumbee as a -- for their -- to host their forum?

A. Well, there is an online education company

that does use Forumbee for its curriculum and for its

community. So there's an example of the -- I think

it's Aviatrix, which means -- no insult intended --

lady flyer in Latin. And they're using it for a pretty

sizable curriculum delivery to support a pretty sizable

online training effort.

Q. So Forumbee is a real product that actual

people are using today and did use back in 2014?

A. To the best of my knowledge, yes.

Q. All right. I think that brings us to Topic 3,

Comparable Licenses.

And just at a summary level, what were you

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 281 of 368
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

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:58

03:59

03:59

03:59

03:59

03:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1001

asked to do on this topic?

A. I was asked to look at the licenses that were

under consideration both from the Caddo side and from

the Microchip side, and to assess if they were

technically comparable or not.

Q. And I think you used a word there I want to

follow up on, which was "technically comparable"; is

that right?

A. Yes. That's correct.

Q. So you're not offering an opinion on whether

or not they're economically comparable; is that

correct?

A. That's not my job as an expert. My job is to

look at technical comparisons. Economics, as they do

not in life, do not enter it into -- into it, in this

case.

Q. And what are we looking at on this slide

titled "Caddo's Comparable Licenses"?

A. These are licenses that Caddo has entered into

with other parties, and we heard about most of these

from the damages expert.

Q. And -- excuse me -- looks like there's several

columns here. The leftmost column looks like the

party, so the counterparty was Caddo. And then the

other party is listed in the first column; is that

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 282 of 368
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

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

03:59

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1002

correct? 

A. Yes. That is correct. 

Q. And then there's a date column. And the third

column is really where I want to focus, which is on the

technology column? 

A. That's right. 

Q. Okay. And can you describe what's listed

there? 

A. Well, the reason why I selected Microsoft as

not technically comparable is because in this case, the

contested functionality had to do with, believe it or

not, the File Explorer in Windows. And that's not a 

website technology. That's an operating system

technology.

And so even though there are lots of

similarities in behavior, it's not a comparable

technology because it doesn't involve a website. 

Q. And maybe just taking one step back to

something that perhaps is obvious but perhaps not. 

Did all of the Caddo licenses listed here, 

with

involve the Active

Path patents? 

A. Yes. The '411 patent family of patents was

the subject of these agreements. 

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 283 of 368
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

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:00

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:01

04:02

04:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1003

Q. And so they would be comparable in that

respect, from the perspective of being the same

patents? 

A. Right. The same patents. Right. 

Q. Understood. 

Did you evaluate any Microchip licenses, 

patent licenses? 

A. I did. I looked at the license portfolio that

Microchip licensed from a company called

 

 

And if we can go to the next slide, I'll show

you a picture there of MSN Home, where the MSN Money

site is, and it basically shows a picture of a -- this

is a -- not a horizontal graphical user menu that's 

shown at the upper left, it's a vertical or left nav

menu. 

But, indeed, if you hover over an entry in

that menu, you get another drop-down menu that comes

out of it. And, in fact, in this case the Stock

Research item in the first-level menu has been selected

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 284 of 368
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

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:02

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

04:03

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1004

and we see the different services -- information

services that do stock research that are available -- 

that were available through the site at the time of the

illustration being made. 

Q. And what were some of the similarities that

you identified in terms of the license and the

technology as it relates to the asserted patents and

technology at issue in this case? 

A. Well, in the , they were directed

to, as Mr. Sherman (sic) observed, discussion site or

bulletin board techniques, but they also covered

website navigation techniques as well. 

They both share a common concern with making

efficient use of screen real estate. They both discuss

an interest in providing more intuitive user interface

options. And they both talk about technology that

helps to make websites more visually appealing. 

So I found the technologies to be comparable

for those reasons. 

Q. And I believe that brings us to the fourth

topic here of Patent Benefits. 

A. It does. 

Q. And what are you referring to here when you

say "patent benefits"? 

And there's sort of a question posed: Agree

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 285 of 368
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

04:03

04:03

04:03

04:03

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:04

04:05

04:05

04:05

04:05

04:05

04:05

04:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1005

with alleged benefits of patents?

A. Mr. Sherwood, in his testimony, talked about

the benefits of the '411 family of patents, and I'm

responding to his statements of those benefits.

Q. By and large, did you agree with how he

characterized the benefits of the asserted patents?

A. I think his statements put too much emphasis

on the Active Path, and I think they overvalue the

importance of navigation as a part of overall website

design.

Q. Could you elaborate on that a little bit?

A. Sure. Since we've already moved to the next

slide, I can do that.

If -- let me say that when it comes to user

retention and engagement, as I was researching the

topic, I found an article that described 16 different

ways to improve user engagement on a website. And

in -- of those 16 ways, only one of them mentioned user

website navigation.

And this is kind of characteristic of

the importance that Mr. Sherwood ascribes to navigation

as he's talking about overall website design. He tends

to see it as a primary driver and a primary motivator

of what makes a good web design.

And when he was talking about the difference

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 286 of 368
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

04:05

04:05

04:05

04:05

04:05

04:05

04:05

04:05

04:05

04:05

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:06

04:07

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1006

between, for example, a good web design and a poor web

design being 100 percent, I couldn't help but get the

feeling that he was also communicating that a lot of

that 100 percent difference comes from the kind of

technologies that the Active Path patents deliver to

those who use them.

And I would simply like to observe that as

someone who has studied and worked with website design

for the past two and a half decades or more, that I do

agree that navigation is a component of website design,

but I do also observe that it's not the only component

of website design, and that its importance has to be

considered along with many other aspects of website

design.

And we heard Ms. Mahar talk about the things

that were driving the redesign of their website. And

what they were concerned about was stability, usability

of the content system, ease of use for maintaining

websites, and, probably most important of all to them,

was the change in load time from 12 seconds to 3

seconds, which, as somebody who's been tracking stuff

on the web for many years, I can tell you is a pretty

big deal. That's a 75 percent improvement or better in

page load time, and that is really, really significant.

And that slide that they showed from the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 287 of 368
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

04:07

04:07

04:07

04:07

04:07

04:07

04:07

04:07

04:07

04:07

04:07

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

04:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1007

presentation that said what the value of improving page

load time was was significant, and I submit that, at

best, a very small portion of the improvement in load

time is going to come from navigation.

I must also observe that Microchip's site has

improved in performance and, according to Ms. Mahar,

improved in revenue generation since the accused

functionalities, which I've already shown really don't

match the Active Path, were taken out of the

microchip.com website by dropping the pull-down menus.

Q. Mr. Tittel, I asked you a question, I think,

at the start of your testimony about, you know, when

was Google started. And it was, I think, shortly after

or around the time that you were publishing your first

book.

Do you recall that?

A. Yes. My first book was '95 and Google was

'98.

Q. In 1998, how big or how popular was Google?

A. It attracted notice pretty much immediately,

but it was -- when it first started out, it was not --

it did not immediately break ahead of older established

search sites at the time, such as Yahoo, Expedia -- I'm

trying to think who else -- Alta Vista.

There were a number of other early search

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 288 of 368
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

04:08

04:08

04:08

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:09

04:10

04:10

04:10

04:10

04:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1008

sites that had something of a presence in that space,

but I think it took three or perhaps four years for

Google to kind of eclipse everybody else.

Q. And you're familiar with the Google website?

A. Yes.

Q. How frequently do you use it?

A. At least dozens of times a day, if not more

than that.

Q. And how has the -- I'll call it the advent of

search-based navigation on sites such as Google and

search engines, how has that changed over the last

20 years in the context of website navigation using,

you know, drop-down menus?

A. Well, I think when the web got going, the way

that people interacted with information was to look at

the front page of the website, see what was there and

start poking around.

I think that, collectively, we've gotten past

the poking around stage. And you'll notice that many

of Dr. Sherwood's arguments concerning the value of the

'411 family of patents sort of stressed the ability to

see more of what was going on around you and to be able

to more easily understand the structure of the website

and to explore things and find things by looking for

them.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 289 of 368
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

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:10

04:11

04:11

04:11

04:11

04:11

04:11

04:12

04:12

04:12

04:12

04:12

04:12

04:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1009

The point of search is to cut the exploration

out and, assuming that you know what you're looking

for, to be able to cut to the chase and get right to

where you're going.

That's not to say that navigation isn't

necessary or that it has no value. But I will observe,

for example, that 60 percent of the traffic on

microchip.com comes from something called an "external

referrer."

What the heck does that mean?

It means that another website had a link in it

from which the visitor came to get to microchip.com.

And in most cases, when a visit comes from an external

referrer, it's probably from a search engine. If not

Google, then some other search engine.

MR. JENSEN: I pass the witness.

CROSS-EXAMINATION

BY MR. DEVLIN:

Q. Good afternoon, Mr. Tittel.

A. Good afternoon, Mr. Devlin.

Q. Thank you for being here with us today.

You've worked as an expert in maybe 12 or 15

different patent cases; is that right?

A. I'm sorry. Would you repeat the question?

Q. Sure. I understand you've worked as an expert

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 290 of 368
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

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:12

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1010

in patent cases maybe a dozen times, 15 times,

something like that; is that right?

A. I've worked on 60 patent cases. I've been

deposed in perhaps 15 of them, and I've appeared at

trial three times. This is actually four times now.

Q. I see. Thank you.

So the -- as I understand it, at least as of

the time of your deposition, in the 12 to 15 cases that

you'd been deposed in or so, all of those were where

you were acting as an expert for the defendant, not the

patent owner; is that right?

A. Yes. That's correct.

Q. And in this case, you're being paid $425 an

hour for your time; is that right?

A. I have not charged $425 an hour for my time.

I only started doing that perhaps in, oh, maybe last

September or October. Before that, my rate was 400 for

about four years before that, and then prior to that it

was $250 an hour.

Q. Okay. So during the pendency of this case, it

was in the 400/425 range?

A. It was 425 for this case.

Q. That's what I meant.

A. Perhaps I didn't understand your question

correctly. I apologize.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 291 of 368
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

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:13

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1011

Q. No problem, sir. Thank you.

I think to make things simpler, we're going to

kind of walk through some of your slides as we go, so

we can connect the dots between what I'm asking you

about and what you said on your direct testimony.

How's that sound?

A. Let's do it.

(Simultaneous speakers.)

A. I would ask you to approach the microphone

more closely because I'm having trouble hearing you.

BY MR. DEVLIN:

Q. Okay. I'll do that. Let's see if we can --

how's that? A little better?

A. It is. Yes. Thank you.

Q. I can just talk louder, if we want. How's

that?

A. Either way. It's up to you.

Q. Okay. Maybe I'll do it that way. It's more

natural.

Without going into the presentation yet, part

of the presentation was about the background of the

technology.

You remember that?

A. Yes.

Q. Okay. And when you were talking about the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 292 of 368
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

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:14

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1012

background, you looked at the drop-down menus, you

looked at the breadcrumbs and so forth, right?

A. Yes, sir.

Q. And I guess the implication is the invention

is -- somehow this combination of these two elements,

that they're in the prior art. Is that the

implication?

A. I see them as the key components.

Q. Okay. Now, you were here during openings --

opening statements?

A. I was.

Q. And you heard that the defenses we were going

to hear were infringement, invalidity, and damages,

right?

A. That is correct. Yes.

Q. You're the only technical expert we're going

to hear from Microchip, correct?

A. That is correct. Yes.

Q. All right. And so -- and you offered zero

testimony today on the issue of the validity of the

patents; is that right?

A. That is correct. Yes.

Q. Okay. Thank you.

And while I'm talking about it, there was a --

there was a slide?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 293 of 368
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

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:15

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1013

MR. DEVLIN: And maybe we can go to that.

It was Slide 22. Do you have that, Mr. Gooden?

There we go.

BY MR. DEVLIN:

Q. Do you remember this one?

A. I do.

Q. And we were explaining to everybody that

there's these two groups of patents. There's the

original and then the so-called CIPs, the

continuations-in-part.

Does that ring a bell?

A. It does.

Q. That issue is only relevant to the issue of

validity, right? In terms of priority dates and things

like that, correct?

A. Yes. That's correct.

Q. Okay. So we don't need to worry about this

issue anymore of the two different groups and so forth,

fair?

A. Indeed. I thought the jury might be

interested in seeing how the patents were related to

each other.

Q. Fair enough. I'm just -- I just want to make

it clear -- and I'm not criticizing you, sir. I just

want to make it clear for everybody that it's actually

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 294 of 368
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

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:16

04:17

04:17

04:17

04:17

04:17

04:17

04:17

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1014

not relevant to any of the issues that are actually

being decided here. So they don't have to worry about

it anymore. Is that okay?

A. It's not only okay, but I did not testify any

further on that subject. So there's really nothing to

deal with.

Q. Perfect. We're in agreement. Thank you.

Before we go any further --

MR. DEVLIN: And you can pull that down,

Mr. Gooden.

BY MR. DEVLIN:

Q. I want to talk about one of the principles

that's pretty important. First of all, with patent

claims, every word matters, right?

A. Yes, sir.

Q. Yeah. Every word in those patent claims is

important, because that defines what each claim

requires to show infringement, correct?

A. Yes.

Q. Okay. And then in the same way the Court's

claim construction is important because it really --

when the Court defines one of the terms in the claims,

then that's what you have to show is present to show

infringement. You have to show that definition is

there, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 295 of 368
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

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:17

04:18

04:18

04:18

04:18

04:18

04:18

04:18

04:18

04:18

04:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1015

A. Indeed.

Q. Okay. Great.

Now, let me talk a little bit more about the

patent claims. There's somewhere -- and maybe we can

pull up -- let's pull up an example of your patent

claims.

MR. DEVLIN: Let's go to the '301,

Claim 1, which was Slide 27, I believe, Mr. Gooden.

BY MR. DEVLIN:

Q. Now, I want to just point everyone to

something. So if you look in the yellow text in the

preamble, you see that at the top?

A. I do.

Q. Okay. And right at the bottom of that text,

the fifth line down, it says: Said method comprising

the steps of.

Do you see that?

A. I do.

Q. Okay. Do you see that word "comprising"?

A. Yes.

Q. That's an important word, isn't it?

A. It is.

Q. And it's important because when a patent claim

uses that transition word, the word "comprising," what

it means is in order to show infringement, you have to

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 296 of 368
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

04:18

04:18

04:18

04:18

04:18

04:18

04:18

04:18

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

04:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1016

demonstrate the presence of all the elements. But at

the same time, if there are additional things going on

in the accused product or method, they're not relevant.

They don't negate infringement as long as all the claim

elements that are listed are there, right?

A. Yes, sir. That's correct.

Q. Thank you.

Now, you can write a patent claim so that

that's not true. You can write a patent claim so that

in order to infringe, you have everything in the claim

and nothing else. So if there is something else

besides what's in the claim, that would negate

infringement, even if the claimed elements are there.

You know that, right?

A. I would ask you to repeat it once again to

make sure that I parsed it correctly.

Q. Sure. You know what? Let's work through an

example. How's that?

Imagine there's a patent claim and it says a

horizontal surface made of wood and four vertical legs

holding that surface away from the ground.

Are you with me so far?

A. Yes, sir.

Q. Okay. That's a table, right?

A. Could be.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 297 of 368
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

04:19

04:19

04:19

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:20

04:21

04:21

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1017

Q. Fair enough. All right.

If the claim says that it's comprising those

things and I have a table with four legs and a fifth

leg in the middle, that meets that claim, right?

It's got the flat surface, it's got the four

legs. The fifth leg doesn't matter, right?

A. Correct.

Q. Great. If, on the other hand, the

transitional word in that claim was "consisting of,"

then -- and it said a flat surface and four legs, then

a table that had a flat surface and four legs and a

fifth leg in the middle would not infringe, right?

A. Because it had an extra leg. Yes.

Q. Right. It's got an extra thing in there

that's not actually recited in the body of the claim.

With me?

A. Yes, sir.

Q. Okay. But all of these claims are comprising

claims, and so extra stuff doesn't negate infringement

as long as the elements are met, right?

A. Yes, sir.

Q. Thank you. All right. Let's keep that in

mind as we work forward through this.

Let's look at this '301 patent, Claim 1. I

want to talk about it.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 298 of 368
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

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:21

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1018

You talked here about this Active Path. See

that? Right in the middle. It's in the orange, kind

of at the top?

A. You mean Item No. 2 in sort of burnt orange?

Q. That's actually a good question. I was

looking at it in the claim. But we're looking at it on

the left as well.

And I think, to hold right here, you were

talking through this. And you were talking about 1 and

2. And I wrote down what you said. Actually, I

photographed it from the screen we have. And then we

copied it down here.

See if this rings a bell. You said: The

second claim element, which is labeled 2 here on the

slide, talks about dynamically constructing an Active

Path.

And remember, that's something that the Court

gave us a definition for, which is: A sequence of

active links as items are selected where there's a

one-to-one correspondence between the item that are

selected and the items that show up in the path, the

Active Path for the resulting breadcrumb.

Now, does that sound right?

A. Well, actually I think you missed a comma in

that sentence.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 299 of 368
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

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:22

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

04:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1019

Q. All right.

A. Because I would have put a comma after the

sequence of active links and then continued on with the

rest of the sentence as a continuation of my statement

rather than construing the entire statement as a

redefinition of the Court's construction, which I would

never, ever presume to do.

Q. Great.

So what we're seeing here on this slide as

Item No. 2 is something more specific than the Court's

construction, right?

A. That language is not an attempt to restate the

Court's construction. It's just supposed to summarize

the focus and thrust of the element.

Q. Thanks. Maybe my question wasn't clear. Let

me ask it again.

This summary here, No. 2, it includes language

that is not in the Court's construction, right? Of

Active Path?

A. It is a description of an entire block of text

that includes the words "Active Path" as well as one,

two, three, four, five, six, seven, eight lines of

text.

Q. All right. Great.

Let me go back to it this way.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 300 of 368
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

04:23

04:23

04:23

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

04:24

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1020

MR. DEVLIN: Let's go to Slide 26. I

think it's back one.

BY MR. DEVLIN:

Q. This is the Court's construction of Active

Path, right?

A. Yes.

Q. Okay. It says: A sequence of links

dynamically created as a menu system is navigated.

Did I read that right?

A. You did.

Q. Okay. So the Court's construction of Active

Path itself, those words alone, "Active Path," do not

require anything about one-to-one correspondence. It's

other words in that claim we were looking at that

require that one-to-one correspondence, right?

A. Yes. That's true. And that is what I was

trying to communicate.

Q. Thank you so much for clarifying that, sir.

Okay.

Now, let me talk about a related issue here

which is you used this --

MR. DEVLIN: Could we go back to 27, the

'301 patent, Claim 1. Slide 27.

Thank you.

BY MR. DEVLIN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 301 of 368
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

04:24

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:25

04:26

04:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1021

Q. You looked at this '301 patent, Claim 1, as

representative in a way; is that fair?

A. Yes. It is.

Q. Okay. Great.

That's what Mr. Sherwood did. That's what you

said, right?

A. That's correct.

Q. Okay. But if I recall right, I think the

analysis with Mr. Sherwood was pretty precise. And I

think what I said, and that he agreed to, went

something like this when we had those claim elements

all lined up. That the other elements in those lists

were substantively identical or subsumed within the

claim element that Mr. Sherwood and I had just gone

through.

Remember those words "subsumed within"?

A. I do. Yes.

Q. And at one point we clarified what that meant.

That meant that the claim element for which we had just

gone through the evidence was at least as detailed, it

might include more detail than one of the claims below,

right?

A. Yes. It's like the mathematical relationship

of a set where all the elements of a set are enclosed

in the elements of a larger set.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 302 of 368
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

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:26

04:27

04:27

04:27

04:27

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1022

Q. Got you.

And I'm not going to go in that particular

direction, but I know what you're talking about. And

so let me try to say it a little differently. Okay?

Let's imagine that instead of all these words,

we had a -- two claims that look like this. One was a

bag and the bag holds an apple, paper towels, and a

light bulb. Okay?

And Mr. Sherwood goes along and he says, aha.

I prove an apple, I prove paper towels, and I prove a

light bulb.

Are you with me?

And then Mr. Sherwood goes, now, there's

another patent claim and that has an element that just

says apple. And so I know if I've proven an apple and

I've also proven a paper towel and I've also proven up

a light bulb, then I've proven the apple. So I can

check that one off too.

Sound right?

A. Yes. That's correct.

Q. Okay. But the opposite does not work, right?

A. If you have to have three things and you only

have one, you don't have three things.

Q. Okay. And what's funny -- and I'm not going

to try to prove this to you, other than in a second

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 303 of 368
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

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:27

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1023

with the same example, but noninfringement is sort of

the opposite, what you're talking about. Let me tell

you what I mean. Here's an example.

Mr. Sherwood proves apple, paper towel, and

light bulb. And there's another claim out there that

just says apple.

You come on the stand and you say, there's no

paper towel. And you put a lot of evidence in. And

now we've joined that issue.

And if the jury believes you and there's no

paper towel there, that first claim is not infringed

because it was required in that claim, right?

A. I'm not sure I understand your hypothetical.

Q. Well, let's drill down on it. Okay?

Imagine a patent claim like we've been talking

about. It requires an apple, it requires a paper

towel, and it requires a light bulb.

And Mr. Sherwood has rendered an opinion and

shown evidence that there is an apple, there's a paper

towel, and there is a light bulb.

Are you with me so far?

A. Yes.

Q. Okay. Great.

And now you get on the stand and say, aha.

Sherwood's got a problem. That thing about paper

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 304 of 368
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

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:28

04:29

04:29

04:29

04:29

04:29

04:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1024

towel, I totally disagree. Let me show y'all a bunch

of evidence. And you do that.

With me so far?

A. Okay.

Q. All right. At that point, the jury has a

decision to make about that claim: Is Sherwood right

about the paper towel business or is Tittel right about

the paper towel business?

Are you with me so far?

MR. JENSEN: Objection, Your Honor.

Relevance. This sounds like a closing argument. If he

wants to ask him something about the products or his

infringement opinions, he's welcome to. But this --

MR. DEVLIN: This is absolutely his

infringement opinion. And this is going to be done in

one minute and it is absolutely --

THE COURT: Overruled.

MR. DEVLIN: Thank you.

BY MR. DEVLIN:

Q. You with me so far?

The jury now has a decision to make: Is the

paper towel there or if it's not?

And if it's not, there's no infringement of

that claim; if it is, there's infringement of that

claim.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 305 of 368
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

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:29

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1025

Are you with me so far?

A. I understand what you're saying. Yes.

Q. Great.

But let's assume the jury believes you, and

there's no paper towel. What about that claim that

only required an apple?

You haven't given any evidence at all that the

apple is missing.

Are you understanding me now still?

A. I understand what you're saying. Yes.

Q. Great.

Let's see this one-to-one correspondence

issue.

MR. DEVLIN: Can we pull up the '880

patent, Claim 1? I think it's Joint 4, maybe it's 5.

Last page, I believe. Next to last.

All right. It's right there, Claim 1,

left-hand column, two thirds of the way down.

Thanks. Let's pull that up.

BY MR. DEVLIN:

Q. Okay. So this claim has a method. See there

at the top?

A. I do.

Q. What's our transition word, just out of

curiosity?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 306 of 368
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

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:30

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

04:31

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1026

A. If by "transition word" you mean the last word

before the next claim element begins, it would be

"comprising."

Q. Great. Yep. That's it. We got a comprising

claim.

And you know what, I want to put a pin in

something you just said, and I want to come back to it.

You said: The last word before the next claim element.

Do you remember that coming out of your mouth?

A. Well, Mr. Sherwood presented evidence for all

of the preambles.

Q. Uh-huh.

A. And the presumption when you present evidence

for a preamble is that it's limiting. But the -- as I

understand it, the preamble of a patent need not be

limiting so that you could count it either as the first

claim element or as something that precedes the first

claim element.

I wasn't trying to say that I had construed

the preamble to be limiting or that this was

necessarily the second claim element.

And if you'll recall --

Q. Hold on. Hold on. I'm sorry. Because I

need -- that's not really an answer to my question. I

promise you, we're going to get there. That's why I

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 307 of 368
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

04:31

04:31

04:31

04:31

04:31

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

04:32

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1027

was putting a pin in it.

A. Okay.

Q. All right. We're going to get back there.

Okay. Thank you.

So here, see the Active Path element? It's

the second one down, "providing" and then "dynamically

constructing."

Do you see that?

A. I do.

Q. Says: Dynamically constructing an Active Path

as a sequence of active links after an item of the

information structure has been selected, right?

A. Yes.

Q. Okay. So there's nothing there about

one-to-one correspondence, right?

Just nothing there about one-to-one

correspondence, right?

A. I see no language in that claim element that

specifically mentions one-to-one correspondence.

Q. All right. Thank you.

A. However --

Q. Go ahead.

A. -- if you construct an Active Path according

to the Court's construction, then you will be in a

situation where each time you make a selection,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 308 of 368
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

04:32

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:33

04:34

04:34

04:34

04:34

04:34

04:34

04:34

04:34

04:34

04:35

04:35

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1028

there'll be an element added to the Active Path and,

perforce, I believe that implies a one-to-one

correspondence.

Q. Well, then -- well, okay.

Let's go back to the '301 patent.

MR. DEVLIN: Mr. Gooden, I'm not sure --

we may come back to this. You might capture that.

That -- we can go back to the slide deck to the '301

patent.

Thank you, Mr. Gooden.

BY MR. DEVLIN:

Q. So if you're right, then this language about

there being a one-to-one correspondence in the '301

patent claim, that's sort of redundant, right?

Wouldn't even need to be there?

A. I didn't hear a question in there.

Q. Your interpretation of Active Path, which

itself, those words alone, would require one-to-one

correspondence, would make the actual recitation of

that requirement in the '301 claim element redundant,

totally unnecessary. Those words would have no

meaning, because it would already be built into the

construction.

That would be a problem from a claim

interpretation perspective, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 309 of 368
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

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:35

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1029

A. I don't know if it would be a problem from a

claim construction perspective because I'm not a patent

attorney. But it seems to me that I have seen plenty

of patents where, either logically or mathematically,

concomitant relationships are present in more than one

string of words.

MR. DEVLIN: Let's go back to the Court's

claim construction, if we could. 26, I believe.

Actually, sorry. Go back to that slide,

27, and just hold it.

BY MR. DEVLIN:

Q. Okay. What you have here in that item -- so

we got a split image here. Your slide's on the

right-hand side.

See it?

A. Yes, sir.

Q. Okay. And on the left-hand side of your slide

is your summary of the claim language, right?

A. Yes, sir.

Q. Okay. And you're not saying that that Item 2

is the Court's claim construction, correct?

A. I've already said that that is the case. Yes.

Q. Okay. And that's because it has extra words,

one-to-one correspondence, among other things perhaps,

right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 310 of 368
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

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:36

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1030

MR. JENSEN: Objection. Asked and

answered.

THE COURT: Sustained.

BY MR. DEVLIN:

Q. Let's examine, while we're at it, the actual

language of the --

MR. DEVLIN: We can take the '880 claim

down, Mr. Gooden. Thank you.

BY MR. DEVLIN:

Q. Let's look -- and I know this is dense, but

these issues matter, right? I mean, words matter.

So let's get on to this claim element, and

let's look at -- what we're going to look at is what

the one-to-one language in the '301 patent actually

says.

It says that -- first of all, it doesn't say

one-to-one. That phrasing isn't right in the claim

itself, right? Doesn't say one-to-one like your dashed

on the left-hand side?

A. It says: One said active link corresponding

to each of the items selected.

I have a hard time not reading that as -- with

the "one" in the first clause and the "each" in the

second clause -- as anything other than a one-to-one

correspondence.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 311 of 368
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

04:37

04:37

04:37

04:37

04:37

04:37

04:37

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1031

Q. Okay. Let me get -- let me work through an

example.

MR. DEVLIN: Let's go to the Forum

website. Can we do that live? Thank you.

BY MR. DEVLIN:

Q. And I think you did this.

I want to try to understand what you said

about the Forum website, and then we'll talk about it,

okay?

And so what you said is if we click on

Forums --

MR. DEVLIN: And just -- if you can

follow along, Mr. Gooden. If we can click on Forums.

Thanks.

BY MR. DEVLIN:

Q. And now we're going to go down and go to 8-Bit

Microcontrollers. That's a selection. Is that what

you're saying?

A. You're going to click on it --

Q. No. No. We're not going to -- sorry. We're

going to -- we've hovered over it, and we've opened up

a window to the right, right?

A. Right.

Q. And now let's go hover over to the right in

the third one there.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 312 of 368
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

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:38

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1032

Now, is that two selections?

A. Correct.

Q. Okay. And do one more. So now we're in the

third level. And so that's three selections is what

you're saying, right?

A. Yes, sir.

Q. Okay.

MR. DEVLIN: So click on that,

Mr. Gooden.

BY MR. DEVLIN:

Q. So we did -- let's see. We did three

selections?

A. Right.

Q. Okay. Three selections.

And your issue is that there's now in that,

what we're calling the Active Path, what you'd say:

No. No. That's got five links there and we only made

three selections, right?

Is that what you're saying?

A. That is correct. Yes, sir.

Q. Okay. Now, it is true, though, that within

those five things, one of those things corresponds to

the first selection we made, right?

A. I'm afraid I don't understand what you're

saying.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 313 of 368
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

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:39

04:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1033

Q. Sure.

MR. DEVLIN: If you could touch on Forums

again, Mr. Gooden.

Great. And scroll down to the third one

down.

BY MR. DEVLIN:

Q. So the first selection was 8-Bit

Microcontrollers.

Do you see that?

A. I do.

MR. DEVLIN: Now if you can just hover

off that, Mr. Gooden. No clicking.

Thanks.

BY MR. DEVLIN:

Q. And you see there's an active link there that

says 8-Bit Microcontrollers, right?

A. I do.

Q. So that active link corresponds to that

selection. With me so far?

A. I am.

Q. Great.

MR. DEVLIN: Let's look at Forums again

and go to this --

BY MR. DEVLIN:

Q. This is now the second selection we made,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 314 of 368
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

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

04:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1034

Peripherals, Core Independent Peripherals.

Do you see that?

A. I do.

Q. Okay.

MR. DEVLIN: If you could hover off that.

BY MR. DEVLIN:

Q. In our active set of links here we have one

that corresponds to that. Peripherals, Core

Independent Peripherals.

Do you see that?

A. I do.

Q. Okay. And then we made a third selection,

Timing and Measurements with some stuff.

MR. DEVLIN: And you can slide off that,

Mr. Gooden.

BY MR. DEVLIN:

Q. And we have -- one of our active paths

corresponds to that, right?

A. That's correct. Yes.

Q. Okay.

I want to read the claim language again

specifically. It says: Dynamically constructing an

Active Path as a sequence of active links as items are

selected, using the graphical user menu system.

So far so good.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 315 of 368
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

04:40

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:41

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1035

And then it says: With one said active link

corresponding to each of the items selected.

Okay? So what we just looked at is we found

one of the active links that corresponded to each of

the three items selected, right?

A. That is correct. Yes.

Q. And then we have two extra things: A link

that says All Forums and a link that says Home, right?

A. That is correct. Yes.

Q. What do those extra things remind you of in

our table example?

A. The fifth leg.

Q. There you go. Exactly.

Thank you.

MR. DEVLIN: You can take that down,

Mr. Gooden.

BY MR. DEVLIN:

Q. Let's go back to this issue of preambles.

Remember we were talking about that earlier?

A. I do.

Q. Now, you know that in some cases a preamble

can be -- we use the word "limiting" and sometimes it's

not limiting; is that fair?

A. That's what the patent code says.

Q. Yeah. The rules of the game in the patent

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 316 of 368
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

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:42

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1036

world are sometimes the preamble counts and sometimes

it doesn't count, right?

A. Yes, sir.

Q. And if it's not limiting, meaning it doesn't

count, the -- I think the normal way of saying that is

it just doesn't matter. It doesn't matter for

infringement at all, whether it's there or not, right?

That's what limiting means?

A. Yes, sir.

Q. Okay. So sometimes the preamble matters and

it counts and you need to look at it for infringement,

and sometimes you don't. Okay.

You said there's a presumption because

Mr. Sherwood looked at evidence for it, therefore it's

limiting, it counts.

That's what you said earlier? Did I

understand you right, sir?

A. I think you did. And I think that's a

reasonable assumption --

Q. Okay.

A. -- to make, based on what Mr. Sherwood did.

Q. What if the law is the opposite? That the

default is the preamble's not limiting and that the

Court can define it as limiting in certain

circumstances, but that's not what happened here? What

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 317 of 368
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

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:43

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1037

if that were the situation?

A. If that were the situation, then it would be

up to the attorneys to decide what to do about it,

rather than a technical expert.

Q. Okay. But so the preamble wouldn't matter.

That was the point.

A. I don't presume to pronounce on that. If you

as a patent attorney tell me that's how it is, then

I'll let you hash it out with Mr. Jensen.

Q. That's a good point. Let me try to ask it --

the question differently. I do want to give you a fair

question.

MR. JENSEN: Your Honor, this is getting

into claim construction here. It has nothing to do

with the, you know, operation of the products. If he

wants to argue about whether the preamble is limiting

or not, the time to have done that was claim

construction.

THE COURT: Yeah. Mr. Devlin, so I think

we've done all we -- you can on that issue.

MR. DEVLIN: Yeah. And, Your Honor, I

just agreed that I asked him the wrong question. And I

got an objection before my next question. So I just

want to ask the next question which I think will be

better. If I may, Your Honor.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 318 of 368
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

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:44

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

04:45

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1038

Thank you.

BY MR. DEVLIN:

Q. So did you consider, in rendering your

opinions, the situation where the preamble were not

limiting? Is that something that you considered at all

when you were rendering your opinions?

A. When I made the arguments, I was trying to

cover all the bases. So the arguments I presented

assumed that if it were limiting, it would count. And

if it were not limiting, then it wouldn't.

Q. Okay. Thank you. Thank you very much. I

appreciate that.

MR. DEVLIN: And thank you for the

Court's indulgence.

Let's go to your Slide 43.

BY MR. DEVLIN:

Q. Now, here you're outlining your

noninfringement arguments, right?

A. More or less. Yes.

Q. Okay. And let me say that more precisely.

You're outlining the noninfringement arguments that

you're going to present here in your testimony?

A. Yes.

Q. Okay. Thank you.

And you've got one argument for the old

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 319 of 368
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

04:45

04:45

04:45

04:45

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

04:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1039

website, sometimes called the original website, one for

the Forum, and one for redesign?

A. Well, actually, the first argument is sort of

an umbrella item and it relates to the preamble. But

as you've already pointed out, that may not count.

Q. Great.

And that's what I was getting at. So that's

not your decision and I get that. We'll figure that

out later amongst ourselves. Thank you, sir. But

that's what I was -- that's awesome. Thanks for -- I

appreciate your help.

Okay. As to the other three, I just want to

confirm that they're each unique to each of the

websites. So the orange argument is only relevant to

the old website, and the green argument is only

relevant to the Forum website, and the blue argument is

only relevant to the redesigned website. Did I

understand your analysis correctly?

A. That is the correct analogy. And I will also

add that the blue item is no longer a consideration.

Q. Okay. Great.

And, in fact, I'm only going to focus on the

orange and the green.

A. Very good.

Q. So we got that going for us.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 320 of 368
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

04:46

04:46

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

04:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1040

Now, the Forum, the text that you

highlighted -- I'm going to deal with that one first,

if that's okay.

The text that you highlighted was: With one

said active link corresponding to each of the items

selected...

And so forth.

Do you see that?

A. Yes, sir.

Q. Okay. And that gets to the one-to-one

correspondence that we were just talking about,

correct?

A. It does.

Q. And that's the issue we just dealt with, with

the three links versus the five links, and the four

legs and the one leg -- the fifth leg of the table.

Remember that? So I'm not going to touch it again as

long as we're in agreement that that's what we just

dealt with.

A. It is, except for one thing. And when you

create --

And if you would have your Mr. Gooden bring up

the Forum site again, I'll show you what I'm talking

about.

Q. Well, tell me what you're getting at and then

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 321 of 368
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

04:47

04:47

04:47

04:47

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

04:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1041

I'll --

A. If you click on the All Forums link, you do

not get a cascading menu. You get a web page.

Q. I'm with you.

MR. DEVLIN: Let's go there and talk

about it for a second.

BY MR. DEVLIN:

Q. All right. So let's do what we did before

which was that we go to the Forums.

A. We've got a breadcrumb up. We can just click

on the All Forums item in the breadcrumb.

Q. Well, I'd like to create it so we know where

we're going and what we're doing. Is that okay?

A. It's your moment -- I mean your PC. You're

driving.

Q. All righty.

MR. DEVLIN: Let's go down to the same

thing we did. 8-Bit Microcontrollers, Peripherals,

Core Peripherals, and then Timing and Measurements.

BY MR. DEVLIN:

Q. Okay. And now we see these five links again,

right?

A. Yes, sir.

Q. Same as before. And we've established that

each of those links corresponds to one of the three

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 322 of 368
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

04:48

04:48

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:49

04:50

04:50

04:50

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1042

selections we made.

There's three links in there -- there's two

extra things, but three of those links correspond to

the three selections we made, right?

A. That is correct. Yeah.

Q. And now the All Forums is extra, right?

A. In the figures in the patent, the starting

element counts as part of the Active Path.

Q. I'm glad you said that, sir.

Are the figures of the patent what are

infringed?

A. No. I'm just pointing out an example.

Q. Okay. But the patent's not limited to the

examples of the figures, right?

A. Of course not.

Q. Thank you.

So let's get back to the claims.

Now, the All Forums here, I would agree with

you, I have not pointed and -- or I didn't point to the

All Forums link when I lined up the selections with the

active links earlier, one and two and three. I didn't

point to that. I agree with you, because I think it's

extra.

Do you see what I mean?

A. I do see what you mean. But I think that at

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 323 of 368
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

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:50

04:51

04:51

04:51

04:51

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1043

least in terms of the figures, the patent teaches

otherwise.

Q. Well, you know what, I might not disagree with

you if we were analyzing the figures.

A. Okay.

Q. All right. But we're not, are we? We're

analyzing the claims?

A. We're analyzing the entire patent. Yes.

Q. What are infringed are the claims?

A. Well, that's true. Yes.

Q. All right.

MR. DEVLIN: Let's go back to 43 for a

second.

Thank you, Mr. Gooden.

BY MR. DEVLIN:

Q. Okay. That was the green and the Forums.

Let's go into the orange.

The orange has those words "dynamically

constructing an Active Path," right?

A. It does.

Q. Now, sometimes the claims say "automatically

constructing," right?

A. I'd have to review the -- I can't remember if

that's the -- I know there is an area where dynamically

and automatically tend to serve interchangeable roles,

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 324 of 368
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

04:51

04:51

04:51

04:51

04:51

04:51

04:51

04:51

04:51

04:51

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:52

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1044

but I can't remember if this is the context in which

that occurs.

If I may be allowed to review the

patents-in-suit, I can verify that pretty quickly.

Q. Well, let me just see if I can find us an

example on that.

A. Didn't Mr. -- did Mr. Sherwood, per chance, do

a 1[b] analysis that would perhaps show us?

MR. DEVLIN: Let's go to the '411 patent.

That's Joint Exhibit 1.

If we can go to Claim 1 there, and pull

up -- yeah.

What I want to do, Mr. Gooden, is

actually pull up from the start of Claim 1 to the

bottom of that column.

And then if you could tack on the other

language that continues onto the next column -- yeah --

that finishes -- sorry. No. I mean, just the

"automatically."

Thank you. There you go.

Thank you.

BY MR. DEVLIN:

Q. Can you see that, sir? Is that big enough for

you?

A. I actually could read the other one, but this

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 325 of 368
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

04:52

04:52

04:52

04:52

04:52

04:52

04:52

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

04:53

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1045

is greater.

Q. Okay. Excellent.

So this is Claim 1 of the '411 patent also

asserted. And you see where it says "automatically

constructing"?

A. Yes, sir.

Q. Now, it's your understanding that the accused

functionalities include automatically constructing an

Active Path and everything that comes after that,

right?

A. Wow. I'm sorry. I may be suffering from a

momentary lapse, but I didn't really understand that

question.

Would you mind asking me again?

Q. Sure.

There's a claim element here that begins with

the words "automatically constructing."

Do you see that?

A. Yes. That would be in your parlance, Claim

Element 1[b].

Q. Thanks.

And that claim element has other verbiage that

goes down to -- right before the word "and" at the

bottom of what's been pulled up.

Do you see that?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 326 of 368
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

04:53

04:53

04:53

04:53

04:53

04:53

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:54

04:55

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1046

A. I do see it.

Q. And it's your understanding that the accused

functionalities include automatically constructing an

Active Path and everything that comes after that,

right?

A. If you're asking me to agree that the accused

functionality includes all of that capability, I have

already testified that the old website lacks an Active

Path for the reasons that I explained in my testimony.

So I can't agree with a statement that the

accused functionality contains this, because I've

already maintained explicitly otherwise.

Q. Okay. You were deposed in this case, right?

A. I was.

Q. And during your deposition you were

represented by counsel, right, or counsel for Microchip

was there defending it for you?

A. Yes. That's correct.

Q. And you swore an oath to tell the truth?

A. I did.

Q. And it was transcribed by a court reporter?

A. It was.

Q. Okay.

MR. DEVLIN: Can we see Mr. Tittel's

February 10th transcript at 39, Lines 14 to 18?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 327 of 368
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

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:55

04:56

04:56

04:56

04:56

04:56

04:56

04:56

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1047

Actually, you can bring up 39, Lines 4

through 18, please.

4 through 18. Thank you.

BY MR. DEVLIN:

Q. All right. You see here the question starts

talking out about the '411 patent.

Do you see that?

A. I do see that.

Q. Okay. And then there's a question about the

menu system, right? That's the first question and the

first four lines.

A. Are we looking at Page 39?

Q. We're looking at Page 39.

It says: So let me just talk about the '411

patent --

A. Oh, yeah. I'm just getting oriented. I do

see what you're talking about. Yes, sir.

Q. Okay. And then -- so -- and I'm focusing on

the fact that there you're looking at the '411 patent,

right?

A. Yes, sir. That's correct.

Q. Okay. And then the next question, which

starts around --

THE COURT: Counsel, you don't use the

deposition to question him. Ask him a question. If

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 328 of 368
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

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:56

04:57

04:57

04:57

04:57

04:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1048

the answer's different, then we can talk about the

deposition. Otherwise, it's irrelevant.

MR. DEVLIN: Thank you, Your Honor.

BY MR. DEVLIN:

Q. Question: Is it your understanding that the

accused functionalities also include automatically

constructing an Active Path and everything that comes

after that?

There was an objection.

Witness says: Yes.

THE COURT: Counsel, you do not read the

deposition. Ask him a question. If he gives a

different answer here, then you tell the jury about the

deposition.

Ask him a question and see how he answers

here. It's hearsay until you do that.

MR. DEVLIN: Yes, Your Honor.

So I previously asked him right here: It

is your understanding that the accused functionalities

also include automatically constructing an Active Path

and everything that comes after that in the claim?

He disagreed with that.

And I'm sorry I took so long with this

impeachment evidence.

BY MR. DEVLIN:

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 329 of 368
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

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

04:57

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1049

Q. In your deposition, I'm going to just read

from the deposition: Is it your understanding that the

accused functionalities also include automatically

constructing an Active Path and everything that comes

after that?

Answer: Yes. It is.

Did I read that right, sir?

A. You did read it right. And I made a mistake

in that testimony. I misunderstood at the time --

THE COURT: Mr. Tittel, you answered his

question. If you want to explain it, your counsel will

have an opportunity to let you do that.

THE WITNESS: Sorry, Your Honor. Yes.

BY MR. DEVLIN:

Q. Thank you.

MR. DEVLIN: And my apologies, Your

Honor. I was taking too long.

BY MR. DEVLIN:

Q. Okay. So but now you disagree with it --

we'll just -- you made a mistake in your deposition is

your point and you're disagreeing with the presence of

that element in the accused functionality, right?

A. That's what I testified earlier today.

Q. Okay. Fine.

MR. DEVLIN: Let's go to your 43 again.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 330 of 368
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

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:58

04:59

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1050

Sorry.

There we are.

BY MR. DEVLIN:

Q. And we're talking about this dynamically

constructing an Active Path.

MR. DEVLIN: And if we can go to 49, I

think you expound on this a little bit.

BY MR. DEVLIN:

Q. All right. And what you were talking about is

there's something called a static path and there's

something called a dynamic path, right?

A. I was trying to explain the distinction

between those two things.

Q. Let me make sure I understood you and then we

can ask a few questions.

So as I understand it, the dynamic path is

something where you're -- the web page or software's

tracking the user's movements and it's constructing the

Active Path in real time as it's following the user's

movements through some menu or something.

Is that how I understood it?

A. No. It's not. It doesn't --

Q. Okay. Tell me what you mean.

A. It doesn't mean that -- you can only move on a

breadcrumb trail when you transition from one web page

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 331 of 368
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

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

04:59

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1051

to another.

So it's not the navigating of the cascading

menus that causes the additions to the links in the

breadcrumb. It's the selection -- excuse me -- it's

the selection of another web page as you're moving

around in the website that causes a message to go back

to the server, and for a response to come back with an

updated breadcrumb string in it.

I'm not trying to say that the breadcrumb will

change as the user navigates cascading menus on the

client, because what the breadcrumb trail reflects is a

trail of web pages. It's not a trail of mouse -- of

menu navigation.

It's not until you click and make a selection

that you're going to alter the breadcrumb trail, either

to truncate it if you move up the trail when you make

your selection or to add to it if you move down the

trail when you make a selection.

Q. Okay. I definitely understood you. Let's use

an example I think that'll help.

Let's go to Forum website, and I want to

understand what's not dynamic about it, okay?

A. I didn't say Forum wasn't dynamic.

Q. Oh, I see. I'm sorry. I understand.

A. I thought we were talking about the old

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 332 of 368
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

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:00

05:01

05:01

05:01

05:01

05:01

05:01

05:01

05:01

05:01

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1052

website.

Q. My fault. The old website.

So let me ask you: If a user hovers over a

top nav --

A. Yes.

Q. -- and then they -- and the hover opens up a

list of items.

A. Correct.

Q. They hover over one underneath it, and that

opens another list, subordinate list.

You with me?

A. Yes.

Q. And then they go in that subordinate list and

they select.

A. Right.

Q. Okay. And then imagine then an Active Path is

created -- you go to a new web page with that selection

and an Active Path is created.

Do you see what I'm saying?

A. Yes. But between the clicking of the

selection and the appearance of the web page on the

client, what happens is you post back to the server.

And the information that you just selected is used to

create a return page that includes some form of

information to describe a breadcrumb.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 333 of 368
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

05:01

05:01

05:01

05:01

05:01

05:01

05:01

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

05:02

05:02

05:02

05:02

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1053

In an infringing implementation, that would

happen on a step-by-step basis to reflect every actual

quick selection that the user had made.

And in the microchip.com old website, what I

showed you was that there was a data block where all

that information had been set up in advance and put in

a database. And that's what was getting downloaded to

the client when the page got sent back.

Q. So if I understand you -- and thank you for

that clarification -- it's that what we're -- what I've

been calling the Active Path in that example, that

exact sequence of links is already preset and it's in

the code?

A. No. I'm not saying that exact sequence of

links is preset in the code. I'm saying that some

sequence of links is already preset in the code. And

as Ms. Mahar testified, and I confirmed through my own

observations, sometimes it matches and sometimes it

doesn't.

And the reason why --

THE COURT: Mr. Tittel, this is going to

go a lot better for all of us if you would just answer

Mr. Devlin's questions. If your lawyer wants to have

you explain the answers, that's fine. But for right

now, Mr. Devlin is asking you questions that can be

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 334 of 368
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

05:02

05:02

05:02

05:02

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:03

05:04

05:04

05:04

05:04

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1054

answered with a yes or no, relatively speaking, and I'd

appreciate it if you would do that. And we can move

on.

THE WITNESS: Very good, sir.

BY MR. DEVLIN:

Q. All right. So let me ask you this: I think I

may have you now, and I hope I do. If, in the example

I gave through that navigation by browsing and then the

click, if everything -- and then if everything lined

up, if the -- if the links that were in the path did

line up with the selections made, would that count?

Would that meet the claim of Active Path?

A. No, sir. It wouldn't. And the definition of

Active Path is dynamically constructed. This -- the

whole path for the resulting target page that goes back

to the client is in a database.

So it has nothing to do with what the client

just did. It's a path that's stored in toto elsewhere

that's delivered when the page gets downloaded.

Q. That's what I thought I asked you earlier. So

the path is already there somewhere stored in the

database?

A. Yes, sir.

Q. Okay. And that's the issue?

A. Yes, sir.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 335 of 368
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

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:04

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1055

Q. Okay. Thank you. All right.

Let's look at the '411 patent for a second.

MR. DEVLIN: And if we could go to

Column 2, please, Mr. Gooden. And if we could pull up

the paragraph that is on the right-hand column. And

you can start at "Summary of the Invention" and go down

to the paragraph that ends around Line 43.

Yeah. Great. Thanks.

And if you could highlight, on the

right-hand side it says: An Active Path. About

halfway down. Yeah. An Active Path.

BY MR. DEVLIN:

Q. So this is a summary of the invention section

of the '411 patent. And this is part of the

specification, the descriptive part, right, sir?

A. That's what it looks like. Yes, sir.

Q. Okay. And this is summarizing the invention.

And it says here: An Active Path is dynamically

constructed as a sequence of active links as items are

selected using the graphical user menu system, with one

active link corresponding to each of the items

selected.

Is that the language that you were talking

about? Or is that the idea you're getting at?

A. That is the idea that I'm getting at. But, of

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 336 of 368
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

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:05

05:06

05:06

05:06

05:06

05:06

05:06

05:06

05:06

05:06

05:06

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1056

course, I also included the Court's construction in my

consideration.

Q. Understood.

MR. DEVLIN: Mr. Gooden, if we could keep

that and scroll down. Right. And just -- perfect.

Thanks.

BY MR. DEVLIN:

Q. So the next paragraph says: According to a

further aspect of the invention, predefined shortcuts

are provided which enable direct access to a given menu

item.

So we're talking about shortcuts there.

Do you see that?

A. I do.

Q. Okay. In this example it goes on: The Active

Path is dynamically constructed when one of the

predefined shortcuts are executed.

Do you see that?

A. I do.

Q. Now, a shortcut is just something the user can

click on, right?

A. It could be a key sequence as well.

Q. Could be a key sequence. In other words, like

a Control-F or whatever, right?

A. Absolutely.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 337 of 368
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

05:06

05:06

05:06

05:06

05:06

05:06

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:07

05:08

05:08

05:08

05:08

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1057

Q. Okay. Well, it could be on the screen just

something that you clicked on. Or key sequence. I'll

take that too.

Neither of those has anything to do with any

menu selection that a user would have made, right?

A. I still see in that same section of language,

in the area just beyond what's highlighted, that it --

that one active link corresponds to each of the menu

items necessary to access the given menu item using the

graphical menu system.

Q. We'll get there. What I'm talking about is

what's highlighted now.

A. Okay.

Q. If an active link is created using a shortcut,

using a key stroke, Control-S or whatever, then that

active link would not be necessarily connected to

anything that the user had done to navigate. It's a

shortcut.

A. Yes. That's correct.

Q. Okay. And if it doesn't matter what the user

did to get there, but the shortcut is going to pull up

a given active link, then that given active link has to

be stored somewhere, right? Or a set of active links,

that has to be stored. For a shortcut to consistently

pull up a given set of active links, they have to be

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 338 of 368
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

05:08

05:08

05:08

05:08

05:08

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:09

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1058

stored somewhere, right?

A. Yes. That's correct.

Q. Thank you.

I want to talk briefly without actually going

to it for speed here. You talked -- you worked through

that video that you and, I think, one of the folks at

the law firm had created. And that's what we've been

looking at, right?

A. Mr. Bonini. Yes.

Q. And part of the issue of that video is that's

an example where the links that were in the Active Path

did not line up with the selections made. Remember

that?

A. I do.

Q. Okay. For that particular one.

And then we saw some other evidence, this DRL

report that said that often happens. Remember that?

A. I do.

Q. And then Ms. Mahar said, yeah, that --

sometimes we -- we got that wrong, but sometimes we got

it right. Remember that?

A. I do.

Q. And you said that there are some paths that

you could take through the menu system and get an

active link and it would line up right here, right?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 339 of 368
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

05:09

05:09

05:09

05:09

05:09

05:09

05:09

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

05:10

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1059

A. Yes. That would be because the contents of

the database reflected the user's behavior.

Q. Okay. And I think you said it was -- you

might have won the scratch-off when that happened.

It's a pretty rare event or were you trying to --

A. I was just being whimsical. Sorry.

Q. Okay. No problem. I didn't know what you

meant by that.

I think I recall that you actually did look at

this a little bit. And you found -- and it was an

estimate through some work you did on the Wayback

Machine and, you know, investigating -- I would say

playing around, but I don't mean that in a pejorative

way. But working around on the website.

And you found that it might have been up to 25

to 50 percent of paths that were created, using the

hierarchical menu structure, didn't line up. Do you

remember that?

A. I don't remember giving a specific number, but

if you -- if that's what you have in my report, then I

will -- I'll stand by my report.

Q. Okay. I have -- I have it elsewhere. And if

you think that's a fair number, I'll live with it. If

we can agree now that that sounds okay.

A. I would put that as a deliberately

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 340 of 368
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

05:10

05:10

05:10

05:10

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

05:11

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1060

conservative estimate because it's basically a wild

guess.

Q. Okay. Fair enough.

But let's say it's 50 percent are wrong.

How's that? So more than 25. At the top end,

50 percent are wrong. You with me with that

assumption?

A. You mean between 25 and 50.

Q. What I'm going to do is I'm going to take your

highest number. Just assume that it's 50 percent of

them are -- end up not aligned. They're incorrect.

They don't match up.

A. I don't know that I can agree with that

because I just don't have the data.

Q. Fair enough. And for efficiency, I'm going to

step past that.

But we agree that there are some paths that

one can follow on the website where it would align?

A. At the time that we're talking about, which I

believe would be when Mr. Sherwood was making his

analysis in December and I was doing the follow-up in

January?

Q. Right.

A. Is that correct?

Q. Okay. Exactly.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 341 of 368
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

05:11

05:11

05:11

05:11

05:11

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

05:12

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1061

A. Yes, sir.

Q. And before that too, whenever this original

website of the main -- the main website, that's what

we're talking about, right?

A. Well, I would suggest actually looking at the

burndown chart that was prepared and tracking the curve

on the burndown chart to see if it might shed any light

on it. Because the people running the project would be

the ones most likely to make a better educated guess

than I did.

Q. I'm going to move us along and just go back

and start from the point where we agree there are some

of the paths that one would take through the

hierarchical structure. And they would create active

links where things would line up. Some of those

existed, right?

A. Agreed.

Q. Okay. And we're dealing with comprising

claims, right?

A. Yes, sir.

Q. Okay. And so if I can follow a menu structure

and I can get an Active Path where they do align, that

instance is infringement, assuming all the other

elements are met, right?

A. I don't agree. Because I have shown that the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 342 of 368
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

05:12

05:12

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:13

05:14

05:14

05:14

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1062

items in the breadcrumb come from a database and do not

track user activity.

Q. Okay. We just talked about that database

issue, I think. So I'm going to set that aside, okay?

What I'm talking about is this particular

instance, you're saying that "also" means that

something's not infringing, and that's where they don't

line up.

Are you with me now?

I just want to talk about that issue in

isolation.

Are you with me?

A. I think my arguments cover all comers. And

that they speak to both the trails that match and the

trails that don't match.

Q. I get that you think that, but that's not your

or my choice. That's the jury's choice. And if they

think that that one argument's wrong about the database

and how things are stored, then another way they could

find something not infringing is if they don't line up,

right?

A. If they don't line up, it's clear that the

path the user took is not the path that's reflected in

the breadcrumb.

Q. Okay. But that issue doesn't exist when they

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 343 of 368
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

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:14

05:15

05:15

05:15

05:15

05:15

05:15

05:15

05:15

05:15

05:15

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1063

do line up. That's all I'm saying, right?

A. No problem. I agree.

Q. All righty. Thank you.

You were on the Forum section and you looked

at -- there were the two other tabs at the top like the

Page Extras and the Posts.

You with me?

A. Yes, sir.

Q. Okay. If there's infringement otherwise by

the Forum section, not including those things, because

these are comprising claims, what those things do don't

matter, right?

A. I would submit that that was a legal decision

to be made by the attorneys. If their lack of

infringement doesn't have a bearing, then it doesn't

have a bearing.

Q. That's my point. If the fact that those

things don't infringe doesn't matter, then they don't

matter. You agree with that?

Great.

Wait. I didn't actually hear you say "yes" on

the record. You do agree with that, right?

A. Yes. I was trying to say the same thing. I'm

sorry.

Q. All righty. Thank you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 344 of 368
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

05:15

05:15

05:15

05:15

05:15

05:15

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

05:16

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1064

Did you ever look into investigating any

feedback that the redesigned website got from users?

Did you take anything like that into account

in your analysis or opinions in this case? 

A. No, sir. I did not. 

Q. Okay. Just so we're clear -- and I know you

might not think this means that much, but I just want

to make sure we're all clear where things of facts

are -- the patents that are the subject of the 

license, they don't have an Active Path as these

patents talk about it, right? 

A. When I said the technologies were

comparable -- okay. Let me answer your question. 

Q. Exactly. Yeah. I'm just trying to get at

that fact. 

They don't have an Active Path? 

A. No. 

Q. No. You agree with me that they don't have an

Active Path? 

A. Correct. 

Q. We're in agreement. Okay. Thank you. 

Sorry for the double negative there. 

Talking about the benefits and the sort of the

timing of sales going up and so forth, we heard that, 

when we moved from the original website to the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 345 of 368
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

05:16

05:16

05:16

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:17

05:18

05:18

05:18

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1065

redesigned website, right?

A. Yes, sir.

Q. Okay. That move solved a lot of preexisting

problems that we heard about, code instability, slow

loads, et cetera, right?

A. That's -- so Ms. Mahar testified. Yes.

Q. All right. Thank you.

You mentioned something about external

referrals from search pages to the microchip.com

website, right?

A. Yes, sir.

Q. Some of those might bring someone to

particular pages within the site, correct? Some of

those referrals?

A. I think that would probably be the majority.

Q. And then some would bring you just to the

basic microchip.com site, right?

A. Yes.

Q. Okay.

MR. DEVLIN: May I have just a moment,

Your Honor, to confer with my team?

Thank you.

All right. One more item.

May I approach, Your Honor?

Thank you.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 346 of 368
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

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:18

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1066

BY MR. DEVLIN:

Q. I just wanted to confirm one thing.

What I'm handing you, sir, that's the

infringement -- Mr. Sherwood's infringement reports,

okay?

A. Yes, sir.

Q. All right. I'm going to --

A. If I don't need it any more, you can take it

away.

Q. I wanted to get back to my microphone here.

So -- I'm sorry. I'm looking for something.

MR. DEVLIN: May I approach again, Your

Honor? I apologize.

Thank you, sir.

A. Did I turn to the correct page?

BY MR. DEVLIN:

Q. You did, sir.

MR. JENSEN: Mr. Devlin, what report is

that, the --

MR. DEVLIN: The infringement report of

Mr. Sherwood.

MR. JENSEN: Okay. Do you have a copy of

that?

MR. DEVLIN: I don't. I just have one

for the witness.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 347 of 368
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

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:19

05:20

05:20

05:20

05:20

05:20

05:20

05:20

05:20

05:20

05:20

05:20

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1067

BY MR. DEVLIN:

Q. Okay. You're looking at Page 65 of

Mr. Sherwood's report.

Do you see that?

A. It's the right-hand page of the two-page, but

I see. Yes.

Q. Great. Thanks.

And that is talking about some of the pages

that he looked at right at the time he was issuing his

report that -- and this was sort of November/December

of last fall, right?

A. Yes, sir. That's correct.

Q. And he's looking at some of the pages that

still had the old -- or original website structure, not

the redesigned website structure, right?

A. Yes. That's correct.

Q. And then he bullets some right there, some

examples?

A. Right. There's a list at the end of Paragraph

149.

Q. Yeah. Could you read the second example into

the record?

A. Www.microchip.com/development-tools.

Q. Great. Thanks. Great.

MR. DEVLIN: Your Honor, pass the

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 348 of 368
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

05:20

05:20

05:20

05:20

05:20

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:21

05:22

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1068

witness. Thank you.

THE COURT: Counsel?

REDIRECT EXAMINATION

BY MR. JENSEN:

Q. Mr. Tittel, do you recall being asked some

questions about this concept of a "predefined

shortcut"?

A. I do.

Q. And there was a suggestion by Mr. Devlin that

if you use a predefined shortcut, there was no need to

create an Active Path?

A. I don't believe he actually said that, but I

did gather that understanding from what he did say.

MR. JENSEN: Let's take a look, if we

could, Mr. Thompson, at -- you can pull up the '411

patent, Claim 2.

Okay. And it's not on my monitor for

some reason, but I can see it over here. And let's

zoom out a little bit and start with Claim 1.

BY MR. JENSEN:

Q. And Claim 1 of the '411 patent is an

independent claim; is that correct, Mr. Tittel?

A. It is.

Q. Okay. And Claim 2 is a dependent claim?

A. Yes. I believe it depends on Claim 1.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 349 of 368
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

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:22

05:23

05:23

05:23

05:23

05:23

05:23

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1069

Q. Okay. And what does that mean in terms of an

infringement analysis if a claim is a dependent claim?

A. If the parent claim on which the dependent

claim depends is found not to infringe, then the

dependent claim cannot infringe.

Q. And is that because the dependent claim can

only add additional requirements to an independent

claim?

A. Yes.

Q. And if we look at Claim 2 here, and I believe

there's a typo in the patent itself, but Claim 2 says

it's a method for navigating according to Claim 1,

correct?

A. It does.

Q. And then it says "providing," and I believe

that should say, "predefined shortcuts"?

A. Yes, sir.

Q. Does the additional requirement of Claim 2, to

provide a predefined shortcut, mean that it was not

necessary in Claim 1 to first automatically construct

an Active Path as a sequence of hierarchical active

links as items are selected?

A. Yes, sir. Purely from a logical perspective,

when I was asked the question, I was thinking, but you

still have to create the path in the first place.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 350 of 368
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

05:23

05:23

05:23

05:23

05:23

05:23

05:23

05:23

05:23

05:23

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

05:24

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1070

Q. So the discussion you had with Mr. Devlin

about predefined shortcuts has no bearing whatsoever on

your noninfringement opinions in this case?

A. That's correct.

Q. And for completeness, let's look at two other

claims. And I believe these are the only two other

claims that require a predefined shortcut.

MR. JENSEN: That would be the '301

patent, Claim 2, Mr. Thompson.

BY MR. JENSEN:

Q. And is Claim 2 an independent (sic) claim that

depends from Claim 1?

A. It is.

Q. Okay. And Claim 2 is the claim that requires

providing a -- again, an error in the patent, but

providing a predefined shortcut?

A. It is.

Q. Okay.

MR. JENSEN: And last but not least,

let's go to the '836 patent, Claim 2.

BY MR. JENSEN:

Q. And it looks like they fixed the misspelling

by this point in the patent prosecution.

But, again, is Claim 2 a dependent claim that

depends on Claim 1?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 351 of 368
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

05:24

05:24

05:24

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

05:25

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1071

A. It is.

Q. Okay. And there's nothing in Claim 1 of any

of the asserted patents that requires or does not

require -- well, strike that.

Let me ask the question this way: Are there

any independent claims that are asserted in this case

that would allow for infringement of the independent

claim simply by having a predefined shortcut without

automatically constructing an active -- or dynamically

constructing an Active Path?

A. No, sir.

Q. Okay.

MR. JENSEN: You can take that down,

Mr. Thompson.

BY MR. JENSEN:

Q. I believe there was a question about something

you had said in your deposition that you wanted to

clarify.

Before I give you an opportunity to do that,

let me just ask: How many times were you deposed in

this litigation?

A. Twice.

Q. Twice.

For approximately how long?

A. I think it was seven hours over a 10-hour

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 352 of 368
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

05:25

05:25

05:25

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

05:26

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1072

period the first day and seven hours over a 11-hour

period in the second day.

Q. And it was an attorney for Caddo that was

asking you questions during those two days?

A. Yes. That's correct.

Q. And it looked like I was distracted at the

time the question was being asked by Mr. Devlin. But

it sounded like there may have been a misstatement or a

mistake at one point in your --

A. I totally mis --

Q. -- at one point in that 14 hours of

deposition?

A. Yes. I totally misunderstood what was going

on. And if you look at your comment in the record, it

speaks directly to that.

Q. Was there any further clarification you wanted

to make? Or you've done it. You said you made a

mistake at some point, and --

A. I thought he was talking about the patent.

And he was talking about the Microchip systems. I did

miss the boat.

Q. Okay. And that was because it sounds like you

may have misunderstood the question?

A. I did.

Q. Okay. So Mr. Devlin showed you the Forum

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 353 of 368
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

05:26

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:27

05:28

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1073

website a few minutes ago. And you did some exercises

and navigated the menu structure there and looked at

the resulting path.

Do you recall that?

A. I do.

Q. And there were a number of questions about the

correspondence between the resulting items in the menu

path and the route that was selected?

A. Yes. That's correct.

Q. And as part of that discussion, he was trying

to get at this idea of a one-to-one correspondence and

whether or not that impacted your noninfringement

analyses?

A. Yes.

Q. And I believe his suggestion was that because

these claims are comprising claims, that if there were

extra links at the beginning such as the Home link or

the Forums link, that somehow that didn't matter or

those don't count?

A. That is what he said.

Q. Okay. And do you recall, one way or the

other, whether when Mr. Sherwood was testifying --

putting aside anything Mr. Devlin said -- but when

Mr. Sherwood was testifying, did he point to the Home

link and all of the links in that path on the Forum

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 354 of 368
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

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:28

05:29

05:29

05:29

05:29

05:29

05:29

05:29

05:29

05:29

05:29

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1074

site and the old Microchip site and identify those as

the Active Path?

A. Would you repeat the question?

Q. Yeah.

MR. JENSEN: Let's pull up the Forum site

and we can do this by way of example and we'll try to

get through this as quickly as we can.

So let's go to the Forums there at the

top. And we'll just pick a -- we'll pick a path.

Let's go to Microprocessors.

THE COURT: Counsel, we're going to take

a very short break. And then we'll finish with

Mr. Tittel.

MR. JENSEN: Very good.

THE BAILIFF: All rise.

(Jury exited the courtroom.)

THE COURT: Thank you. You may be

seated.

A juror needed a break.

MR. JENSEN: Understood.

This is probably five minutes or less.

We're real close.

THE COURT: Mr. Devlin?

MR. DEVLIN: I've just -- so far I'm just

going to address one point quickly and I'll be done.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 355 of 368
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

05:29

05:29

05:29

05:29

05:29

05:29

05:35

05:35

05:35

05:35

05:35

05:35

05:35

05:35

05:35

05:35

05:35

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1075

Thank you, Your Honor.

THE COURT: As soon as -- if y'all will

just wait here, as soon as the jury's ready to come

back in, we'll bring them back in.

Mr. Tittel, you can step down.

(Recess taken.)

THE BAILIFF: All rise.

THE COURT: Please remain standing for

the jury.

(Jury entered the courtroom.)

THE COURT: Thank you. You may be

seated.

Counsel?

MR. JENSEN: Mr. Thompson, could you

bring the Forum site back up? All right.

And we were just going to make a

selection here and do an example. We went to

Microprocessors and General MPU Topics.

And is there a way to turn this on? I

wanted to highlight something. Maybe Mr. Thompson can

help me here.

BY MR. JENSEN:

Q. So in the resulting page that loaded,

Mr. Tittel, do you see the path, Home, All Forums,

Microprocessors, General MPU Topics?

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 356 of 368
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

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:36

05:37

05:37

05:37

05:37

05:37

05:37

05:37

05:37

05:37

05:37

05:37

05:37

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1076

A. I do.

Q. Okay. And how many links are in that path?

A. Four.

Q. Okay. And when Mr. Sherwood was testifying,

did he identify that entire path as being the Active

Path where each one of those links would be an active

link?

A. Yes.

Q. Okay. So when Mr. Sherwood was testifying, he

defined Active Path as the entire sequence of links.

He didn't pick and choose which ones counted and which

ones didn't, did he?

A. Not that I noticed. No.

Q. Okay. And, in fact --

MR. JENSEN: You can take that down,

Mr. Thompson. And I'd like for you to bring up the

Demonstrative No. 135 from Mr. Sherwood's presentation.

BY MR. JENSEN:

Q. And was there a suggestion or was it your

understanding, Mr. Tittel, that there was a suggestion

by Mr. Devlin that somehow the Home link just doesn't

matter. It doesn't count. It's extra because these

are comprising claims?

A. That was my understanding. Yes.

Q. Okay. And what we're looking at here is a

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 357 of 368
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

05:37

05:37

05:37

05:37

05:37

05:37

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

05:38

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1077

demonstrative from Mr. Sherwood that, I believe, was

annotated by him or his lawyers and used in his

examination and testimony here.

Do you recall seeing this slide?

A. Yes. I do.

Q. And if we look down at the bottom there, do

you see those numbers, 1, 2, and 3?

A. I do.

Q. Okay. And is it your understanding that those

are the annotations that were added by Mr. Sherwood?

Or were those on the website originally?

A. No. They would pretty much have to be

annotations.

Q. Okay. And in this instance, did Mr. Sherwood

identify the Home link as being part of the Active

Path?

A. It sure looks like it to me. Yes.

Q. Okay.

MR. JENSEN: No further questions.

MR. DEVLIN: No questions, Your Honor.

Thank you.

THE COURT: Could I have counsel up here

for just a second?

(Bench conference.)

THE COURT: I think I know the answer to

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 358 of 368
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

05:38

05:38

05:38

05:38

05:38

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:39

05:40

05:40

05:40

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1078

this, but I didn't want to -- he's done, right?

MR. JENSEN: Yes.

THE COURT: Okay. So I can dismiss him.

MR. JENSEN: Uh-huh.

THE COURT: So okay. That's all. I

didn't want to ask in front of the jury.

(Bench conference concludes.)

THE COURT: Thank you, Mr. Tittel. You

may be excused.

By that, you are free to leave, but

you're also welcome to stay and watch the rest of the

trial. I'm not asking you to leave, but you're not

bound by the Court's rules.

Ladies and gentlemen of the jury, we're

done for the afternoon. And so remembering my

instructions not to discuss the case amongst

yourselves, if you'd be so kind as to be here by

8:30 -- or I'm sorry. 8:45 tomorrow. We will start at

9 o'clock.

THE BAILIFF: All rise.

(Jury exited the courtroom.)

THE COURT: Thank you. You may be

seated.

So for the defendant, we have what left?

MR. JENSEN: I believe we have a

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 359 of 368
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

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:40

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1079

deposition clip to play. We've got one fact witness,

Dr. Wolf. And then our damages expert.

THE COURT: Okay. And so generally

speaking, but I'll -- y'all are trying the case. I

will seriously invite you to tell me your thoughts.

What I would suggest we do is finish the

case. And then whenever it finishes -- we'll know more

in the morning. Let's -- whenever we finish with the

evidence, then we'll take up the jury charge. I'll let

the jury go for whatever period of time it takes.

Generally speaking, if it's too late in

the afternoon before I finish with the charge, the

charge will take me about an hour to read. So if it's

too late in the afternoon for me, meaning 4:00 or

later, I have you all do the closing arguments when the

jury's fresh the next day. And so that's probably what

we'll plan on doing.

If we finish dramatically early tomorrow

with the damages and everything else, and we can get

the -- and the charge conference goes quickly and all

that, and we can get done.

But for right now, I think the best laid

plans, unless you all have some objection to it, would

be to get it -- whatever we need to get done tomorrow,

including me reading the charge. Whenever I finish

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 360 of 368
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

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:41

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1080

with that, we can give the jury off the rest of the

day, and then you all can do the closing arguments

Friday morning. If that works for you all.

MR. DEVLIN: Certainly works for

plaintiff, Your Honor.

MR. JENSEN: I believe that's fine with

us as well.

THE COURT: I'm inviting -- if -- it's

you all's trial. If you think there's --

MR. JENSEN: Yeah. I think we should

look at how long is our deposition clip. I don't

recall. I'd like to check in. And given everything

that's happened, how long --

THE COURT: Well, I'd like y'all to leave

tonight knowing whether you're going to have to do the

closing argument tomorrow or not. I mean, I don't want

you all --

MR. JENSEN: May we have like one minute

just to confer amongst ourselves? I think we can

resolve this.

THE COURT: Sure.

MR. JENSEN: Yeah. I think Friday

morning's going to be best.

THE COURT: I think so too.

Okay. Is there anything we need to take

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 361 of 368
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

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:42

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:43

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1081

up?

MR. DEVLIN: Nothing for plaintiff, Your

Honor. Thank you.

MR. JENSEN: Nothing for defendant.

THE COURT: Okay.

Now, let's talk about the charge

conference. Have you all submitted your proposed

charges? I should know that, but I don't.

MR. DEVLIN: Yes. There's been a

submission and, you know -- there's submissions.

THE COURT: Okay. So what I would

recommend you do is, if you think you've done all you

can to bridge the gap, that's fine.

If you haven't, occasionally people will

keep working and they'll get more stuff done.

The way I do my charge conference is the

only people that need to be here for the charge

conference are the attorneys who are directly involved

in -- everyone's welcome, but I always hated it when I

had nothing to do with the charge and I had to sit

there and waste time. There's other stuff -- there's

other stuff you all can be doing.

So whoever wants to stay for the charge

conference can stay. You're not required to. The

charge conference is off the record. And then we -- I

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 362 of 368
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

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:43

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

05:44

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1082

tell you what we're going to do. And then once you

all -- I will tell you exactly what I'm going to do.

I'll give you a chance to put on the

record anything you're unhappy about, either that I've

put in you didn't want, I didn't put in that you did

want, whatever that is. That will be on the record,

but the charge conference -- there will be -- it will

be informal. I mean, you don't have to wear coats and

ties and all of that. It will probably be in here.

So I'm just trying to think if there's

anything else.

Now, I've done, I think, 13 or 14 patent

jury trials now. Almost for sure the winning argument

from someone will be: This is the way you've done it

before.

And if someone wants something different,

the burden will be on them to say why the case is

unique, and I would -- if you want me to do something

that is different from every other thing I've done.

And also remember this. The charge is

unbelievably long. Regardless, it takes me an hour to

read. So, again, the tie will always go to me reading

less. If you all are trying to persuade me: No, I

really -- I really -- you really need to add more

language, that's rarely successful.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 363 of 368
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

05:44

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:45

05:46

05:46

05:46

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1083

But it's not that I don't have an open

mind. It's just, you know, we've done this a bunch now

and I think we've got the charge in pretty good shape.

So having said all that, if you all will

be here tomorrow morning by 8:30 if you have issues; by

9:00 if you don't, we'll finish up with the deposition,

the fact witness, the damages expert, you all will both

rest.

We will give the jury a break of whatever

time we think we need to get the charge done. We'll

have the jury come back. I'll charge them. They'll

have the rest of the day off, and we'll do closing

arguments at 9:00 on Friday morning.

I will be able to stay in Waco until

about 1:00 or 2:00 on Friday. If the verdict comes in

after that, one of the magistrate judges will be able

to take the verdict and read it.

And so there'll be someone here to cover

for my absence if it's just receiving a verdict.

Anything else we need to take up?

MR. JENSEN: Just one question about

closings, Your Honor. You gave us some guidance at the

start of the trial with respect to the length of the

openings. I think it would be helpful for us to have a

sense of kind of the rules of the road, as it were, for

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 364 of 368
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

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:46

05:47

05:47

05:47

05:47

05:47

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1084

closings.

THE COURT: You have 30 minutes.

MR. JENSEN: Okay. Since we did not put

on an invalidity defense, does that mean that the

plaintiff does not get a rebuttal closing argument?

THE COURT: No. The plaintiff has the

burden, they are going to get to close. I mean, the

plaintiff has the burden, so they get to open and

close.

MR. JENSEN: And does that count against

the 30 minutes?

THE COURT: They've got 30 minutes.

Now, what I don't want -- no one's ever

done this, you know, I don't want a 3-minute opening

and a 27-minute closing. It needs to be a full -- I'm

not going to -- you know, there's no 13-minute mark.

I'm just -- I want a full opening and then you'll get a

full closing.

And for what it's worth, it may be worth

nothing, I know how I felt when I was practicing, how

important I thought closings were. I have now

interviewed 36 juries and asked them the question every

time: What difference did the closing argument make?

And I've had 100 percent of the time,

100 percent of the jurors say it made no difference at

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 365 of 368
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

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:47

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1085

all and we could have skipped it.

So when you all are sitting there

thinking: Oh, but we need more than 30 minutes. We

can't do it in 30 minutes.

My -- the reason I put you at 30 minutes

is my general sense is that that hour is an hour that

you have seven impatient people who would really rather

just be going back to the jury room and deliberating.

Now, this might be the exception. We'll

see. You all might be so. I know both -- I'm assuming

you two are doing the closing arguments. You all might

be the first time the jurors break into tears and say

that persuaded me and I was going to do something

different.

But that's my experience from 36 trials,

is the closing arguments have not been very persuasive.

That's for what it's worth. Again,

that's for what it's worth.

Kristie reminded me, if the plaintiff --

I'm sorry -- if the defendant wants to make -- they did

not make their motion for -- I postponed the motion for

directed verdict when the plaintiffs closed.

If you all want to put that on the record

at this time or tomorrow morning, either one, that will

be fine.

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 366 of 368
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

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

05:48

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1086

MR. JENSEN: I think we'd prefer to do it

tomorrow morning, if that's all right, Your Honor?

First thing.

THE COURT: If Mr. Devlin's fine with it,

and he hasn't complained so far.

MR. DEVLIN: No objections. Thank you.

THE COURT: Okay. Y'all have a good

evening.

THE BAILIFF: All rise.

(Hearing adjourned.)

Case 6:20-cv-00245-ADA Document 257 Filed 08/07/22 Page 367 of 368
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

05:49

KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1087

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 July 2022.

/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-00245-ADA Document 257 Filed 08/07/22 Page 368 of 368