Exhibit 3

 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC *

DBA BRAZOS LICENSING * February 21, 2023

AND DEVELOPMENT *

*

VS. * CIVIL ACTION NOS.

*

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

DELL INC., EMC CORP *

AND VMWARE INC. *

BEFORE THE HONORABLE ALAN D ALBRIGHT

JURY TRIAL PROCEEDINGS

Volume 1 of 3

APPEARANCES:

For the Plaintiff: Jonathan K. Waldrop, Esq.

Marcus A. Barber, Esq.

John W. Downing, Esq.

Darcy L. Jones, Esq.

Heather S. Kim, Esq.

ThucMinh Nguyen, Esq.

Kasowitz Benson Torres, LLP

333 Twin Dolphin Drive, Suite 200

Redwood Shores, CA 94065

Hershy Stern, Esq.

Julianne Laporte, Esq.

Kasowitz Benson Torres LLP

1633 Broadway

New York, NY 10019

Paul G. Williams, Esq.

Kasowitz Benson Torres LLP

1349 West Peachtree Street, NW

Suite 1500

Atlanta, GA 30309

Gregory Phillip Love, Esq.

Steckler Wayne Cherry & Love PLLC

PO Box 948

Henderson, TX 75653

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

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Mark D. Siegmund, Esq.

Melissa Samano Ruiz, Esq.

Steckler Wayne Cherry & Love, PLLC

8416 Old McGregor Road

Waco, TX 76712

For the Defendant: Brian Rosenthal, Esq.

Benjamin Hershkowitz, Esq.

Gibson, Dunn & Crutcher LLP

200 Park Ave.

New York, NY 10166

Jaysen S. Chung, Esq.

Y. Ernest Hsin, Esq.

Gibson Dunn & Cruthcher LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105

Casey J. McCracken, Esq.

Nathaniel R. Scharn, Esq.

Emily M. Whitcher, Esq.

Gibson, Dunn & Crutcher LLP

3161 Michelson Drive

Irvine, CA 92612

Veronica Smith Moye, Esq.

Gibson, Dunn & Crutcher LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Barry K. Shelton, Esq.

Winston & Strawn LLP

2121 N. Pearl Street, Suite 900

Dallas, TX 75201

Court Reporter: Kristie M. Davis, CRR, RMR

PO Box 20994

Waco, Texas 76702-0994

(254) 340-6114

Proceedings recorded by mechanical stenography,

transcript produced by computer-aided transcription.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

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that would assist Your Honor.

THE COURT: Hold on one second.

(Off-the-record bench conference.)

THE COURT: I think there was an issue

last week, late last week, about the ripeness of them

being available for me to rule on, but I think that's

been overcome by the passage of time.

And I'm going to overrule all the

objections that were made to Judge Gilliland's reports

and recommendations.

MR. SHELTON: Okay. Thank you, Your

Honor.

And just one more thing that I should

have mentioned, Your Honor, with respect to the '800

damages issue.

If Your Honor is inclined to submit the

issue of damages not to this jury, which of course I

strenuously argue that you must under the Constitution,

there should be, of course, no opportunity for this

plaintiff who has made all of its strategic and

tactical decisions throughout this case resulting in

its damages expert being struck, they should have no

opportunity to put in new opinions, new evidence --

THE COURT: I think we can take that up.

MR. SHELTON: Thank you, Your Honor.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

127

That's fine. It's your choice.

But you're also going to have to reap the

problems that that causes because I have to make sure

the jury understands what is happening.

And it's a fact that there will be -- I'm

deleting what I think -- I'll say it, I think this is

impermissible. Defendant asked me to say: I did not

permit the plaintiff to present evidence regarding

damages for the '800 patent because it's not reliable.

I don't think that needs to be in there.

I think -- but everything else is, in my opinion,

exactly what the law is and what the -- what's going to

happen in the trial.

MR. WALDROP: Your Honor, I understand,

Your Honor. We object, Your Honor.

But there's one question, Your Honor,

that may circumvent all of this, Your Honor, which you

kind of hinted at, Your Honor, which may lead to a

reduction in time for the entire proceeding, Your

Honor, and I'm mindful of the Court's time and very

thankful for this opportunity, Your Honor.

Look, Your Honor. We only -- if there's

one question or two questions that we cannot ask based

on the Court's rulings this morning, then we may be in

a situation, Your Honor -- and depending on what the

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

128

Court says, that may obviate the need for all of this.

So I wanted to raise that with Your Honor

because that may put all this aside, if I could.

If we can't -- if we cannot ask, Your

Honor, our expert, and this is the particular question,

just this question alone: Does VMware offer hardware

and software in connection with its vSphere 6.5

product? Is that question permissible or not?

THE COURT: What is the defendants'

position?

MR. ROSENTHAL: Your Honor, our position

is that's exactly what was ruled on today. There is no

hardware.

THE COURT: I thought so too.

Yeah. You are correct, Mr. Waldrop. I

think that's been the subject of at least four

hearings, maybe five hearings, that have been ruled on

by this Court about that issue.

MR. WALDROP: So the only reason why I

was asking, Your Honor, because -- and maybe it was

wrong, Your Honor. I'm doing the very best I can. Our

understanding was that the rulings applied to -- your

ruling this morning applied to specific Dell hardware,

not the existence of hardware.

If that's the case, Your Honor, I think

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

129

we're in a situation, Your Honor, given these rulings,

and we would like to preserve for the record and, Your

Honor, either move to continue or make every

preservation of rights that we can as to the '800 and

'360 patent, make offers of proof.

In an interest of time, we may not be

able to do all of that now, but I would want to ask for

preservation of all rights for appeal, Your Honor.

And then maybe make offers of proof after

the jury leaves or however you want to do that, Your

Honor. We weren't prepared to do that because we had a

different understanding, but we are where we are, Your

Honor.

And if that's the case, if that's where

we are, Your Honor, because effectively we've been --

effectively the case is over for us on the '360 patent

and the '800 patent by operation of the rulings, Your

Honor, as to almost summary judgment.

And I have no interest in wasting the

Court's time. We'll just take this up in a different

way, Your Honor. And we'll just proceed on the '133

patent.

THE COURT: So what I hear you saying is

you would want me to sever out two of the three patents

and allow you to go up to the Circuit and appeal my

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

130

rulings with respect to the Daubert where I struck the

damages and my rulings with respect to what is and is

not admissible with respect to the hardware?

MR. WALDROP: They're already separate

cases, Your Honor, I believe, consolidated for trial.

THE COURT: So you're asking me to grant

the motion -- you would ask me to grant a motion from

the defendant on those to dismiss them, which would

make them appealable based on my rulings?

MR. WALDROP: Your Honor, there's a

couple ways to do it, because we could also

stipulate -- stipulations are also an issue.

Your Honor, if I could, because like I

said, this was not something -- if I could have one

minute, Your Honor.

THE COURT: You can have as much time as

you need. This is on your clock.

MR. WALDROP: Okay. Well, my case shrank

a lot, Your Honor. So I want to move fast.

THE COURT: Take your time.

MR. WALDROP: All right. Thank you, Your

Honor. I just need a few seconds, Your Honor, a few

minutes.

(Pause in proceedings.)

MR. ROSENTHAL: Your Honor, it's me.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

131

Mr. Waldrop and I have just discussed how we think

would be the appropriate way to proceed in this

circumstance. And we think the appropriate way to

proceed is for us to now make a motion and hear

defendants -- or hear Plaintiff's response.

Our motion is under Rule 56 we move for

judgment as a matter of law that there is no direct

infringement of the '800 and '360 patents on the basis

that those -- the only asserted claims of those two

patents are apparatus claims. The only proffered

evidence in this case that is consistent with the

Court's rulings is that of direct sales of software

alone. And that there is no proffered evidence under

the Court's rulings of the sale of hardware. And as a

result, there will be no evidence of infringement. And

indirect infringement is out of the case.

We also move for the same basis for

judgment as a matter of law that there are no damages

for those two, or at least that the plaintiff cannot

prove any damages for those two patents on the same

basis, because the damages evidence that they have

proffered in this case is tied entirely to the sale of

software which cannot by law infringe apparatus claims.

THE COURT: And in addition to that, on

the '800 the Daubert that I had already granted.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

132

MR. ROSENTHAL: And on that basis as

well, Your Honor.

THE COURT: Okay.

MR. ROSENTHAL: Thank you.

THE COURT: Yes, sir?

MR. WALDROP: Your Honor, for the record,

we would oppose that motion, Your Honor. And we ask

and state that by operation of law, Your Honor, and

your rulings from this morning previously, that we

cannot present a damages case and maybe an infringement

case, Your Honor. And we ask that you enter in your

findings of fact in this case, Your Honor.

THE COURT: A response?

MR. ROSENTHAL: Your Honor, I'm not sure

how an opposition plays here. Either they're going to

present the evidence --

THE COURT: That's what I think as well.

MR. ROSENTHAL: -- or they're not.

THE COURT: Right.

MR. ROSENTHAL: And if the answer is that

they're not, then there is no basis to oppose. So we

think it ought to be dismissed with prejudice.

THE COURT: What you have to put on the

record, Counsel -- I understand you're opposing the

motions. But if there's anything substantive with

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

133

which you disagree about what Counsel just said -- and

I understand you blame the Court for it and that's

fine, the rulings of the Court for the situation you're

in.

But what I heard Mr. Rosenthal say, I

think you've articulated very clearly on the record

that given my rulings, both with respect to the

hardware and with respect to the Daubert on just the

'800, that a motion -- if my -- if my rulings were

correct -- which Plaintiff disagrees with on the

record -- but if my rulings were correct, then you are

unable to put on evidence that would support a finding

of infringement or damages on -- and I've already -- my

brain's already gone -- on the '800 and the --

MR. ROSENTHAL: '360, Your Honor.

THE COURT: '360 patent.

Do you agree with that?

MR. WALDROP: Yes, Your Honor. We

cannot.

THE COURT: Okay. Then I'm going to

grant those motions. Which what I -- now, let me ask

you all this.

And you can start, Mr. Waldrop, just

because you're up.

I doubt the jury was dramatically

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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

330

UNITED STATES DISTRICT COURT )

WESTERN DISTRICT OF TEXAS )

I, Kristie M. Davis, Official Court

Reporter for the United States District Court, Western

District of Texas, do certify that the foregoing is a

correct transcript from the record of proceedings in

the above-entitled matter.

I certify that the transcript fees and

format comply with those prescribed by the Court and

Judicial Conference of the United States.

Certified to by me this 26th day of

February 2023.

/s/ Kristie M. Davis

KRISTIE M. DAVIS

Official Court Reporter

800 Franklin Avenue

Waco, Texas 76701

(254) 340-6114

kmdaviscsr@yahoo.com

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