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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

EPISTAR CORPORATION, )(

PLAINTIFF, )( CIVIL ACTION NO.

)( 6:20-CV-420-ADA

VS. )( WACO, TEXAS

)(

LOWE'S COMPANY, INC., ET AL.,)( JULY 26, 2021

DEFENDANTS. )( 9:32 A.M.

MOTION HEARING

(BY ZOOM)

BEFORE THE HONORABLE JUDGE ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

FOR THE PLAINTIFF: Ms. Lucy Yen

Wilson Sonsini Goodrich & Rosati

1301 Avenue of the Americas

40th Floor

New York, NY 10019

Mr. Albert Shih

Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, CA 94304

COURT REPORTER: Ms. Shelly Holmes, CSR, TCRR

Certified Shorthand Reporter

2593 Myrtle Road

Diana, Texas 75640

(903) 720-6009

shellyholmes@hotmail.com

(Proceedings recorded by mechanical stenography, transcript

produced on a CAT system.)

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FOR THE PLAINTIFF: Ms. Celine Liu

Wilson Sonsini Goodrich & Rosati

1700 K Street NW

5th Floor

Washington, DC 20006

FOR THE DEFENDANTS: Mr. Michael B. Eisenberg

Steptoe & Johnson LLP

1114 Avenue of the Americas

35th Floor

New York, NY 10036

Ms. Anna M. Targowska

Steptoe & Johnson LLP

227 West Monroe Street

Suite 4700

Chicago, IL 60606

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THE COURT: Good morning, it's Alan Albright. I'm

sorry. I had problems with my Zoom getting in, but --

Suzanne, if you'd call the case, please.

COURTROOM DEPUTY: Good morning, Judge.

Court calls Waco case 20-CV-420, Epistar

Corporation versus Lowe's Company, Inc., et al., for a

motion hearing.

THE COURT: If the parties would announce,

starting with the Plaintiff, please.

MS. YEN: Good morning, Your Honor. This is Lucy

Yen from Wilson Sonsini Goodrich & Rosati, representing

Epistar Corporation. On the line are two of my colleagues,

Albert Shih and Celine Liu.

THE COURT: Welcome all.

And for Defendant?

MR. EISENBERG: Good morning, Your Honor. This is

Michael Eisenberg at Steptoe & Johnson -- sorry -- on

behalf of Lowe's, the Defendant. With me on the line, I

believe I have Anna Targowska, also from Steptoe & Johnson.

THE COURT: Welcome to you guys, and I'm happy --

my law clerk has explained to me y'all had a couple of

issues with your scheduling. I'm happy to hear from either

side who wants to take these up, and we'll just work

through them together.

So I'm happy to hear from whoever wants to take

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the lead.

MR. EISENBERG: This is Michael Eisenberg. Unless

the Plaintiff wants to go first, I think in large part, the

current issue is one raised by Defendant.

THE COURT: Okay. Happy to -- that certainly

works fine for me. Thank you, sir.

MR. EISENBERG: Thank you, Your Honor.

So the background here starts with the preliminary

infringement contentions. We spoke to Your Honor shortly

after those were filed -- were exchanged. And, you know,

at that time, there was a chart of a single product

provided and a general statement that there were other

products at issue.

We came to Your Honor at that time and said that

those disclosures were insufficient under the schedule and

Your Honor's order governing proceedings. We had a call

very similar to this one, and Your Honor said -- and

there's a transcript of this, obviously -- though not

ideal, there will be final infringement contentions and

further disclosures, and this issue will eventually work

its way correctly through the schedule.

On April 8th, the final infringement deadline came

and passed without any infringement contentions being

served.

On April 23rd, the Plaintiff served a motion to

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Your Honor asking to supplement its infringement

contentions and stating that its request was -- this is a

quote -- timely.

Now, in Defendants' view, if you miss a deadline

in Your Honor's schedule, that is not timely, and that was

a false statement to Your Honor.

The supplemental contentions the Plaintiff

provided at that time provided six charts. Those charts do

not address the same accused products as each other. So

based on the charts as provided, different claims are

asserted against different products.

Despite serving six charts, Plaintiff referenced

but did not provide any specific disclosure for a total of,

I believe, 112 products. For all but those six, there is

no disclosure of which claims are at issue for any of those

112 products. And, in fact, it's not clear whether all

five patents at issue are asserted against those 112

products.

On June 3rd, Plaintiff filed a First Amended

Complaint and on June 30th submit -- disclosed its second

supplemental infringement contentions.

The second supplemental contentions include a

total of, I believe, 287 products. They are -- the same

six products from the first amended contentions are charted

again. In fact, they're the identical charts, so nothing

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new was added in the charts, but more than a hundred

additional products were added at that time.

Again, based on Plaintiff's charts, it is not true

that all claims are -- all asserted claims are asserted

against all products.

All we have is a specific association between

asserted products and claims for six out of a total of 287

products.

We met and conferred on the schedule, and at that

time, even though these six charted products were in

Defendants' view untimely, Lowe's agreed that we would move

forward on those six products to effectively waive its

objection to the untimely nature of that disclosure and

accept those as timely and move forward with the case, the

only ones that have been charted and the only ones for

which any specific claims are asserted.

Plaintiff disagrees, and I'm sure you will hear

from opposing counsel explaining why they believe they

disagree.

But in Lowe's view, at this point, more than a

year after this suit was filed, the fact that there were --

that Plaintiff is refusing to tell Defendant which claims

are asserted against which products -- you know, let's

leave aside the point that, you know, not all 287 products

are charted. And I'm not necessarily saying that all

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products have to be charted individually, but at a minimum,

they have to tell us which claims are asserted against

which products so we can determine the scope of what they

think is infringed and how they think it's infringed.

You know, even without the details in the chart,

we could do some digging and try to figure it out. But as

it is, we just have a list of 287 products and the

identification of specific claims that allegedly infringe

six of those products.

And it is Defendants' position that that is

inconsistent with the letter and spirit of what Your Honor

has ordered for all patent cases be provided. And it is

clear at this point that Plaintiff has no intention of

providing the disclosure that Lowe's believes should have

been provided more than a year ago.

THE COURT: I couldn't tell if you were done there

or not.

MR. EISENBERG: Oh, sorry, Your Honor, yes. And I

should have clarified that.

I think that is a descent summary of where I

understand things stand. Obviously, if Your Honor has any

questions for me, I would be glad to answer them.

THE COURT: No, I think I can -- I think I can

keep up with this so far.

Let me hear the Plaintiff's response.

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MS. YEN: Thank you, Your Honor. This is Lucy

Yen.

First, I would just like to thank Your Honor for

promptly scheduling this hearing after the parties'

correspondence on Friday. We do seek the Court's guidance

in allowing this case to go forward, including setting a

case schedule.

Epistar has repeatedly stated to Lowe's that it's

willing to be very flexible on the schedule and to grant

Lowe's the time it requires to respond to the updated

infringement contentions.

The accused products in this case have been

identified since the preliminary infringement contentions.

They have not changed. They fall into six series of GE

light bulbs which we identified in August 2020.

It's -- it is true that we have identified

specific model and item numbers for the light bulbs that

fall into the six product series. That was done in part to

facilitate Lowe's search for discovery which Lowe's has

claimed it was not able to do, so Epistar scoured Lowe's

website, went into Lowe's stores to collect the item and

model numbers for light bulbs that fall into the six series

of products that were identified in August 2020.

With respect to the claim charts, it's obviously

impractical for Epistar to chart over 200 light bulbs.

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We've charted a light bulb from each of those six product

series. We currently believe that those are representative

light bulbs, and the representative nature of those light

bulbs is precisely the analysis that our experts are

working on and they -- and will be the subject of expert

reports and will be the subject of expert deposition

testimony. And Lowe's will have adequate opportunity to

cross-examine our experts and to respond to the

representative nature of the light bulbs.

And if we don't --

THE COURT: Let me -- let me -- I'm sorry to

interrupt you.

Let me ask you this question. So you have -- I

get it. There are six -- six series. I get that so far.

And I'm sure counsel for Lowe's gets that, as well.

Have you -- have you taken it -- for the 200-plus

different light bulbs, have you told Lowe's -- for Light

Bulb No. 112, for example, have you told them which of the

six series of infringement -- have you divided each -- have

you divided and identified for each accused product which

of the six series it goes into at this time?

MS. YEN: The names of the light bulbs for the

most part identified the product series. The names of the

light bulbs are, for example, GE vintage 60-watt warm

candlelight. GE series is, of course, one of the series

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that we identified in August 2020.

THE COURT: So I could look at -- if the Plaintiff

has accused a specific light bulb of infringing, I can look

at your infringement contentions and know which of the six

series of infringement -- of infringement you are

maintaining that light bulb falls under; is that correct?

MS. YEN: Yes, because our intention was to chart

at least one light bulb from each of the product series,

and each of the product --

THE COURT: I think we're missing each other.

What I -- I understand that you -- you charted six

and that they're representative. I think what the folks

from Lowe's are unhappy with is with 200 products, they

may not know which of the six series applies with respect

to each of the identified product which exceeds 200.

And counsel for Defendant can interrupt me if

I'm -- if I've misunderstood what the concern is, and the

concern may be even greater that they want charting of

infringement for each of the 200 done.

I'm just taking an intermediate step at this

point, and I'm trying to get from the Plaintiff, for each

of the 200-plus products, could I look at the -- could I

look at your contention and know for -- for Light Bulb No.

106 which of the six series of infringement it's covered

by?

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MS. YEN: We believe you can.

THE COURT: And how would I do that?

MS. YEN: Because you would look at each part for

a GE vintage light bulb, and you would know that it is

Plaintiff's position that that claim chart is

representative of the other vintage light bulbs that have

been listed in the list of accused products.

THE COURT: Okay. So -- so the six -- are there

six buckets of light bulbs that are all relatively

identifiable based on the nomenclature of the way that

they're named?

MS. YEN: Yes.

THE COURT: Okay. And so -- and I think what you

just used -- one of the names you just used was "vintage."

So if -- if I am -- your -- Plaintiff's position is that

if -- that you have -- you have gone through and done an

infringement contention that shows to the Defendant why you

believe all of the -- of the, quote, unquote, vintage

nomenclatured light bulb -- you've done one representative

disclosure, but your position is, is that that disclosure

would cover all of the light bulbs that are -- have the

same nomenclature of vintage.

And so the Defendant is on notice of your

infringement theory for all of the light bulbs that fall in

that bucket? Is that a fair understanding on my part?

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MS. YEN: Yes, it is. And it's our understanding

of the analysis to date, we have...

THE COURT: And are there any light bulbs in the

200 that don't have a nomenclature where there is a

representative light bulb that has been -- that -- for

which you have done an infringement analysis and shown --

and, you know, as required in my court, where you attach

each claim element to the product in a manner that shows

why you believe it infringes, is there -- are there any

products that -- that aren't covered where I -- where I

can't tell which claim -- which infringement contention

would cover it?

MS. YEN: Your Honor, I'm looking at the

descriptions we provided. I think there are a few in which

it may be difficult to know which of the six product

series, and we'd be happy to update the infringement

contentions to categorize them into one of the identified

product series.

THE COURT: Okay. Now, let me -- let me turn to

Defense counsel.

And -- and tell me -- I may be missing something

here. Tell me what I'm -- why that isn't satisfactory for

what we need the Plaintiff to do.

MR. EISENBERG: From Defendants' point of view,

and I think this is clear based on what counsel for

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Plaintiff said earlier, they have not actually analyzed all

287 products, have not gone forward to try to figure out

whether all of the products within any given series are

actually materially the same.

Instead, they've said they've gone into stores to

look up --

THE COURT: Okay. Let -- I'm sorry to interrupt

you.

I'm going to make them do that for a hundred

percent of the products. So -- but what I'm concerned --

what I'm asking you now is, is assuming I require them

to -- for every product do what I just -- what I just

discussed, is it -- is it or is it not adequate? For

example, if they have -- if they have done a sufficient

infringement...

MR. EISENBERG: Sorry, Your Honor, you cut out

there -- or maybe my -- can you hear me?

THE COURT: -- nomenclature --

MR. EISENBERG: Sorry, Your Honor, you cut out

there for -- can you hear me? You cut out there for a

minute.

THE COURT: Okay. Let me try again.

So assuming they have to -- assuming the Plaintiff

is required for every product that they are accusing to

tell you which of the six -- they've done six

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representative infringement contentions. If they have to

either, one, tell you the product -- I'm making this up --

Light Bulb No. 112, it falls under the -- the infringement

contention that we did for X product. And if they -- if it

doesn't -- if it's not captured, then they're going to have

to go back and do more work and give you an infringement

contention for it.

But my question to you is assuming that you get

infringement contentions for 100 percent of the products

and it's done in the manner I just suggested, does that

get -- does that satisfy you?

MR. EISENBERG: Well, I guess asking whether it

satisfies me, you know, we're -- we're more than a year

after suit was filed. There have been serious issues

throughout with how Plaintiff has conducted this

litigation. And the fact that we're still here and based

on what Plaintiff has said here today, it is my

understanding that they have not even yet looked at all 287

products.

They are hoping, wishing, believing that they will

fall within one of those six theories, but it should not be

the case that we are here today under those circumstances.

And if a Defendant were in a similar circumstance saying,

well, we'll get you what we think we should get you at some

point in the future, I just don't think it would fly.

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And --

THE COURT: Well, maybe I'm -- maybe I'm missing

what you're asking me to do. Are you asking me to take

more serious action than just ordering them -- and you may

be, and if you are, I have to take that up.

But my understanding is that -- and maybe I was

misunderstood, that you're -- that you are obviously

concerned where you're at, but the point of my phone call

and the hearing was to resolve getting this issue done so

that you can move forward.

If Defendants' position is it's too late to do

that, then that's -- you're free to make that argument.

But that's not what I was prepared to hear today, and I

would probably have to take that up a little bit -- I'm

happy to take it up. That's just not what I was prepared

to -- what I thought I was going to do today was just try

and get this rectified and the train running down the track

and moving forward.

If you want more serious discipline, for lack of a

better word, I can't think of one, but if you want -- and I

don't think the word "sanction" is appropriate. But if you

want me to take stronger action than just setting a

deadline for when the Plaintiff will give you all of the --

all of the infringement contentions and identify them for

all products so that you can move forward, I'm going to

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have to -- I'll have to do that in a different hearing.

So you just -- that's what I asked you earlier if

that would satisfy you, that's what I meant. I can do

that --

MR. EISENBERG: Oh, okay.

THE COURT: -- today. I can set a deadline. But

if you want me to do something more, that's entirely your

choice, but just let me know.

MR. EISENBERG: Okay. And I apologize, Your

Honor, if I wasn't -- if I wasn't clear.

I mean, there is a pending motion by the Plaintiff

to provide its untimely first amended infringement

contentions. That motion includes -- embedded within it a

question -- a request to provide its second supplemental

infringement contentions by June 30th. We have opposed

that. So that's all pending before Your Honor.

And it is Defendants' position -- and I want to be

as clear as possible here. They missed their deadline on

April 8th. They misinformed Your Honor that their

subsequent request was timely. And I do not think that

Defendant is in the position at this point of asking for

sanctions. That is something Your Honor could obviously

consider on your own.

But the primary point that Defendant wants to

raise is they should be held -- do the infringement

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contentions that they did timely serve which themselves are

insufficient. And that -- that is Defendants' position,

and --

THE COURT: Okay.

MR. EISENBERG: -- based on what's been discussed

here today -- I'm sorry, Your Honor, go ahead.

THE COURT: No, no, no, I just said okay. I'm

getting to the point where I -- where I understand what

you're saying. You're welcome to continue.

MR. EISENBERG: Okay. The last thing that I was

going to mention is based on what's been discussed here

today, it appears to me that Plaintiff has admitted, and

they've done this in writing before and I think they've

done it again today, that they have not looked at all 287

products in detail enough to determine whether they're

representative.

And the fact that they repeatedly state that, as a

matter of fact, they are without actually having -- you

know, they're not saying on information and belief.

They're not saying we hope, we believe. They're stating as

a matter of fact a conclusion that they don't have a basis

put forward. And that is part of why they have not yet

disclosed, you know, the fact that these products are

allegedly identical within a series.

And I, Your Honor, have looked at personally --

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not just through experts, but personally under microscopes

and otherwise, I have looked at the accused products within

a series, and they are not materially identical.

THE COURT: Okay. I'm -- I'm --

MS. YEN: May I --

THE COURT: I'm in much better shape

understanding your -- yeah, give me one second. I'm in a

much better shape of understanding what you're arguing.

And, yes, ma'am, I was about to say you're -- I

invite the Plaintiff to say anything they care to in

response.

MS. YEN: Thank you, Your Honor.

We did file a motion for leave on the supplemental

contentions. On April 8th, the day they were due, we sent

Plaintiff -- we sent Defendants the information that should

have been in a document called Final Infringement

Contentions. That was a mistake, and that is why we filed

a motion for leave before the Court.

On April 8th, Lowe's received the same information

that they should have received in the form of a document

for formal -- final infringement contentions.

We apologize for that. We filed a motion for

leave. We filed it two weeks after April 8th. That is

what we meant by timely.

We're not suggesting that the final infringement

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contentions were served on April 8th. That is why we filed

a motion for leave before the Court.

On the accused products, it is also not true that

the 280 products have not been analyzed. Each of them have

been analyzed by our experts and by counsel at Wilson

Sonsini Goodrich & Rosati. Dozens of these light bulbs

were purchased from the store. The Lowe's website was

scoured to make sure that we had identified the correct

light bulbs. We looked for whatever specifications were

available on the Lowe's website.

We served a subpoena on the manufacturer of the

light bulbs. It's simply not true that we haven't done the

diligence. It's a hearing for another day, but part of the

issue is that we received no discovery from Lowe's in

response to any of our questions about their inventory.

So to the extent that not all of the accused

product model numbers have been identified immediately,

it's partly because the inventory on Lowe's website

changes. The availability of products changes. And we

have to spend the time going through the website and making

sure that we carefully identify light bulbs that are still

on sale and that are marketed as within the six product

series that we identified in August 2020.

Thank you.

THE COURT: Thank you, ma'am.

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Anything else from -- from Lowe's?

MR. EISENBERG: I still -- I'm just a bit confused

by what Plaintiff's counsel just said.

I made a very specific statement, which is my

understanding is they have not analyzed all 287 products.

There's nothing confusing or subtle about that. It's not

about looking on a website. It's not -- you know, these

things are -- have been on sale either through the website

or in stores.

We didn't withdraw and drop in 287 new products

over the last couple of weeks. That's simply not what

happened. And Plaintiff's counsel should just admit that

they have not done the same analysis on all 287 products.

It's not difficult or confusing.

And there seems to be some misunderstanding

between the parties on what's -- what's going on here,

which is you're supposed to do your analysis to know what's

at issue before you file suit. Yes, you can supplement as

necessary. But that's not what happened, and it's still

not what's happened to this date.

And if -- one last clarification, Your Honor. We

had discovery requests to Plaintiff for all their analysis,

which are not privileged. You know, they relied upon them

for their infringement contentions. I have personally gone

through their discovery responses, and I have found

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analyses for approximately six products, not 287.

And that is not where we should be a year after

filing suit. And talking about what's available in images

on a website doesn't answer that question.

THE COURT: I got it.

Anything else from the Plaintiff?

MS. YEN: Thank you, Your Honor. I feel like

we're two ships passing in the night.

I can't state more expressly that we've analyzed,

including our experts, carefully analyzed each of the light

bulbs we identified as an accused product before we listed

them.

It will be the subject of expert discovery, and

Lowe's will have every opportunity to cross-examine our

experts regarding that analysis, the nature of the

representativeness, and other conclusions made by our

experts.

THE COURT: Okay. Anything else from anyone?

MR. EISENBERG: Not from Defendants' side, Your

Honor.

THE COURT: Well, thank you for your time this

morning.

My law clerk and I are -- you may be able to hear

the background noise. We are headed to beautiful Del Rio

to -- you may have missed it, but there's been some issues

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with immigration over the past couple of months that we're

going to go help out with. But -- and so he and I are

going to be in Del Reo for this week.

But we'll be able to get something out in the next

day or so to -- I think, to resolve this. And we'll --

we'll -- look in your email, and we'll get something in the

very near future taking care of this.

Does anyone else have anything else they'd like to

say?

MS. YEN: No. Thank you, Your Honor. Again,

thank you for making time today to help us get the case

going.

THE COURT: Happy to do it. You guys have a good

afternoon, and we'll get this worked out quickly. Thank

you.

MR. EISENBERG: Okay. Safe travels.

(Hearing concluded at 10:01 a.m.)

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CERTIFICATION

I HEREBY CERTIFY that the foregoing is a true and

correct transcript from the stenographic notes of the

proceedings in the above-entitled matter to the best of my

ability.

/S/ Shelly Holmes 8/3/21

SHELLY HOLMES, CSR, TCRR Date

OFFICIAL REPORTER

State of Texas No.: 7804

Expiration Date: 10/31/21

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