1 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

 2 AUSTIN DIVISION

 3 VOXER, INC. and VOXER IP LLC, ) AU:20-CV-00655-LY

)

 4 Plaintiffs, )

)

 5 v. ) AUSTIN, TEXAS 

)

 6 META PLATFORMS, INC., f/k/a )

FACEBOOK, INC., and INSTAGRAM LLC, )

 7 )

 Defendants. ) SEPTEMBER 20, 2022

 8

 9 **********************************************

TRANSCRIPT OF JURY TRIAL

 10 VOLUME 7

BEFORE THE HONORABLE LEE YEAKEL

 11 **********************************************

 12 APPEARANCES: 

 13 FOR THE PLAINTIFFS: G. BLAKE THOMPSON 

MANN TINDEL THOMPSON 

 14 201 E. HOWARD STREET 

HENDERSON, TEXAS 75654

 15

MICHAEL D. POWELL

 16 SAM STAKE 

CHRISTINE WEIJIA CHEN

 17 OGNJEN ZIVOJNOVIC

QUINN EMANUEL URQUHART & SULLIVAN LLP 

 18 50 CALIFORNIA STREET, 22ND FLOOR 

SAN FRANCISCO, CALIFORNIA 94111

 19

ROBERT W. STONE 

 20 QUINN EMANUEL URQUHART & SULLIVAN LLP 

555 TWIN DOLPHIN DRIVE, 5TH FLOOR 

 21 REDWOOD SHORES, CALIFORNIA 94065

 22 GAVIN SNYDER 

QUINN EMANUEL URQUHART & SULLIVAN LLP 

 23 1109 FIRST AVENUE, SUITE 210 

SEATTLE, WASHINGTON 98101

 24

 25

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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Case 1:20-cv-00655-DAE Document 344 Filed 10/12/22 Page 1 of 172
 1 FOR THE DEFENDANTS: MICHAEL E. JONES 

SHAUN WILLIAM HASSETT

 2 POTTER MINTON PC 

110 NORTH COLLEGE, SUITE 500 

 3 TYLER, TEXAS 75702

 4 ROBERT A. VAN NEST 

CHRISTA M. ANDERSON

 5 DAVID J. SILBERT

EUGENE M. PAIGE

 6 PUJA V. PARIKH

PAVEN MALHOTRA

 7 JASON S. GEORGE

SEAN M. ARENSON

 8 VISHESH NARAYEN

KEKER, VAN NEST & PETERS LLP 

 9 633 BATTERY STREET 

SAN FRANCISCO, CALIFORNIA 94111-1809

 10

BLAINE H. EVANSON 

 11 GIBSON, DUNN & CRUTCHER LLP 

3161 MICHELSON DRIVE 

 12 IRVINE, CALIFORNIA 92612

 13 COURT REPORTER: ARLINDA RODRIGUEZ, CSR 

501 WEST 5TH STREET, SUITE 4152

 14 AUSTIN, TEXAS 78701

(512) 391-8791

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24 Proceedings recorded by computerized stenography, transcript 

 25 produced by computer.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

2

Case 1:20-cv-00655-DAE Document 344 Filed 10/12/22 Page 2 of 172
 1 INDEX

 PAGE

 2 COURT'S CHARGE . . . . . . . . . . . . . . . . . . . . . . 57

 3 PLAINTIFF'S CLOSING . . . . . . . . . . . . . . . . . . . 91 

 4 DEFENDANT'S CLOSING . . . . . . . . . . . . . . . . . . . 113

 5 PLAINTIFF'S REBUTTAL . . . . . . . . . . . . . . . . . . . 150

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ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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Case 1:20-cv-00655-DAE Document 344 Filed 10/12/22 Page 3 of 172
09:36:44 1 (Open court, no jury) 

09:36:44 2 THE COURT: The record will reflect that the jury is 

09:36:47 3 not present in the courtroom. We have a couple of matters to 

09:36:51 4 do before we bring the jury back this afternoon. 

09:36:55 5 I think that order of play will be I'll take up the 

09:37:01 6 Rule 50(b) motions first. After ruling on those, we'll see 

09:37:06 7 where we are and then consider the jury charge. Does that work 

09:37:13 8 for everybody else? 

09:37:15 9 MR. STONE: Yes, Your Honor. 

09:37:17 10 MR. SILBERT: Yes, Your Honor. 

09:37:17 11 THE COURT: All right. Then I will take up the 

09:37:30 12 defendant's motion first. Ms. Anderson? 

09:37:41 13 MS. ANDERSON: Good morning, Your Honor. 

09:37:43 14 Christa Anderson for Meta. 

09:37:45 15 Your Honor, we submitted to the Court a written 

09:37:48 16 Rule 50 motion on many issues in this case, and that should be 

09:37:52 17 with Your Honor. The only -- 

09:37:54 18 THE COURT: I'll bet, had I just done this orally 

09:37:57 19 earlier in the week, I wouldn't have gotten 20 pages.

09:38:03 20 MS. ANDERSON: Well, you know, more fun, Your Honor.

09:38:06 21 The only item that we would request brief oral 

09:38:09 22 argument with the Court on is the issue of willfulness, and 

09:38:14 23 that's because the issue would affect the verdict form, 

09:38:17 24 Your Honor. The rest we would submit on the papers to the 

09:38:19 25 Court.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:38:19 1 THE COURT: All right.

09:38:21 2 MS. ANDERSON: All right. Your Honor, with respect 

09:38:22 3 to Rule 50 and willfulness, the defendants submit this motion 

09:38:29 4 to the Court for judgment as a matter of law on willfulness. 

09:38:32 5 There are two things required for a finding of 

09:38:34 6 willfulness: knowledge of the patents-in-suit and a specific 

09:38:39 7 intent to infringe those patents at the time of the challenged 

09:38:45 8 conduct, such as in situation where you have an accusation of 

09:38:48 9 infringement of the actual patents-in-suit. Neither of those 

09:38:53 10 two elements are present in this case. They have not been 

09:38:56 11 proven. 

09:38:57 12 First, as to the knowledge of patents, we know from 

09:38:59 13 Federal Circuit precedent that knowledge of the patent alleged 

09:39:02 14 to be willfully infringed is a prerequisite to enhanced 

09:39:06 15 damages. That's the WBIP case from 2016. 

09:39:11 16 As a corollary to that rule, Your Honor, knowledge of 

09:39:16 17 other patents in the same portfolio, with some of those being 

09:39:21 18 within the same family as the asserted patents, is insufficient 

09:39:26 19 to defeat a motion for summary judgment or, as in the case, 

09:39:31 20 motion for judgment as matter of law on willfulness. We know 

09:39:33 21 that from the Intell Ventures case cited to the Court.

09:39:37 22 Another corollary, knowledge of a patent application 

09:39:40 23 is sufficient for the same reasons. We have cited to the Court 

09:39:44 24 cases like Maxell or the Conopco case from the Federal Circuit 

09:39:49 25 in 1994. We have the State Industrial case from 1985 also from 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:39:53 1 the Federal Circuit, and a number of other cases we've cited in 

09:39:58 2 our papers, Your Honor.

09:40:00 3 This rule makes sense. Courts recognize that 

09:40:05 4 knowledge of a patent portfolio does not provide notice of any 

09:40:09 5 future patent application, and knowledge of a patent 

09:40:12 6 application can't provide notice of a future patent because 

09:40:15 7 there is no guarantee that any patent will ever issue or in 

09:40:21 8 what particular claim.

09:40:22 9 In this case Voxer seeks to rely on willfulness 

09:40:27 10 evidence that is insufficient as a matter of law under these 

09:40:31 11 doctrines. Voxer is pointing to evidence about the 2012 

09:40:34 12 discussions. The patents had not even been applied for in 

09:40:38 13 2012, not for another more than five years before the first 

09:40:42 14 application would show up. Mr. Katis himself admitted he never 

09:40:46 15 referenced any specific patent numbers or applications during 

09:40:51 16 those discussions.

09:40:52 17 Voxer also points to the 2016 correspondence from 

09:40:55 18 Voxer to Facebook. That correspondence does not list the 

09:40:59 19 application for the '270 or the '557 patents, much less the 

09:41:03 20 patent themselves, because they did not yet exist.

09:41:08 21 Voxer also points to a provisional application from 

09:41:10 22 2007. The provisional application contains no claim language 

09:41:16 23 whatsoever, certainly not the specific claims at issue in this 

09:41:20 24 case that were submitted to the Patent and Trademark Office 

09:41:24 25 years after Facebook Live and Instagram Live had launched. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:41:29 1 There is simply no evidence in this case of awareness 

09:41:34 2 of the specific patents-in-suit until suit was filed in 2020. 

09:41:39 3 And, under the law, that is insufficient. And we have cited to 

09:41:42 4 the Court the Biedermann case as well as Intell.

09:41:45 5 The evidence presented shows, at most, that notice -- 

09:41:50 6 that Facebook had notice of certain Voxer patents listed in 

09:41:54 7 that 2016 e-mail correspondence, but Plaintiffs have not 

09:41:58 8 identified a single case holding that knowledge of other 

09:42:01 9 patents in a patent portfolio could arise to the level of 

09:42:05 10 substantial evidence to support a jury finding of willfulness.

09:42:10 11 Moving on, Your Honor, to the second element of 

09:42:13 12 willfulness, intent. Knowledge of the patent-in-suit is 

09:42:16 13 necessary but not sufficient. You also have to show specific 

09:42:19 14 intent that often comes in the form of some specific accusation 

09:42:23 15 of infringement. We know that from the Bayer case, Federal 

09:42:26 16 Circuit 2021.

09:42:28 17 There is literally no evidence in this case of 

09:42:31 18 specific intent to infringe. And how could there be? The 

09:42:35 19 patents did not even exist when Facebook Live and Instagram 

09:42:40 20 Live were developed and launched. 

09:42:42 21 Therefore, Your Honor, Defendants respectfully move 

09:42:45 22 the Court for a judgment as a matter of law on the issue of 

09:42:48 23 willfulness in favor of defendants. 

09:42:51 24 Thank you, Your Honor. 

09:42:51 25 THE COURT: Thank you. I'll hear a response to that 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:42:56 1 argument.

09:42:58 2 MR. STAKE: Thank you, Your Honor. Sam Stake on 

09:43:02 3 behalf of Voxer. 

09:43:05 4 There is abundant evidence in the trial record 

09:43:08 5 showing Defendant Facebook's willful infringement, and their 

09:43:12 6 motion for judgment as a matter of law should be denied. 

09:43:16 7 As Mr. Katis, Voxer's founder, testified, obtaining 

09:43:19 8 strong patents was always core to Voxer's business strategy. 

09:43:23 9 In a summary of a patent portfolio that Voxer shared with 

09:43:28 10 Facebook in 2016 they stated: Patents and intellectual 

09:43:32 11 property have been integral to Voxer since the inception of the 

09:43:36 12 company in 2007. That document was shared with Facebook just 

09:43:41 13 days and very shortly after the launch of Facebook Live, the 

09:43:46 14 accused product in this case. And that document referenced the 

09:43:50 15 immediate parents of the two patents-in-suit here. 

09:43:56 16 Now, starting in 2010, we saw abundant evidence in 

09:44:01 17 the trial record of Voxer and Facebook having a history of 

09:44:05 18 discussions -- business discussions. And Facebook took an 

09:44:09 19 interest in either acquiring Voxer or in licensing its patented 

09:44:14 20 technology. 

09:44:16 21 In a series of meetings in early 2012, the evidence 

09:44:19 22 that we heard shows that Voxer's founders, Tom Katis and 

09:44:24 23 Matt Ranney repeatedly disclosed to Facebook and described in 

09:44:29 24 detail the core patented live messaging and storing stream 

09:44:33 25 technology. That included video live messaging technology at 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

8

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09:44:37 1 issue in this case. 

09:44:40 2 They further disclosed that Voxer had both issued 

09:44:44 3 patents and patent applications. That's what the testimony 

09:44:48 4 reflects. Those patents and patent applications have -- have a 

09:44:54 5 near identical specification and disclosure as the two patents 

09:44:59 6 at issue in this suit. 

09:45:03 7 Mr. Katis further testified that at every meeting 

09:45:06 8 with Facebook, including in meetings with Facebook CEO 

09:45:11 9 Mark Zuckerberg, CTO Mike Schroepfer, and other senior 

09:45:15 10 leadership, that he always at every meeting disclosed the 

09:45:18 11 patents. 

09:45:19 12 Testimony from Facebook witnesses and internal 

09:45:23 13 Facebook documents that have been introduced into evidence 

09:45:26 14 confirm that Facebook evaluated Voxer's patents and patented 

09:45:31 15 technology favorably and that it investigated Voxer's patent 

09:45:37 16 portfolio. 

09:45:38 17 As Peter Deng testify -- this was on Friday 

09:45:41 18 afternoon. He is the director of product and responsible for 

09:45:44 19 the messaging applications at Facebook he testified -- pardon 

09:45:49 20 me. The transcript from that testimony reflects: 

09:45:53 21 "Question: Well, you appear to have written an 

09:45:56 22 e-mail from Mr. Deng -- from yourself to Mr. O'Rourke on 

09:46:01 23 February 9th, 2012 with the subject 'Voxer patents,' right?" 

09:46:04 24 And then Mr. Deng's answer was: "That's what this 

09:46:07 25 suggests." 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:46:08 1 And a further question was: "So this suggests that 

09:46:11 2 you knew that Voxer had patents in 2012, right?" 

09:46:14 3 Answer: "Yeah." 

09:46:15 4 And, as Your Honor will remember, there was a lengthy 

09:46:18 5 discussion about the contours of privilege and that Facebook 

09:46:21 6 had asserted privilege. We're of course not invading those 

09:46:27 7 discussions, but this just reflects that it's rare to have 

09:46:29 8 evidence of a smoking gun in cases like this. 

09:46:32 9 Instead we know that there is ample circumstantial 

09:46:35 10 evidence, at a minimum, that Facebook was aware of these patent 

09:46:38 11 families and patents and patented technologies for years 

09:46:43 12 leading up to this lawsuit. 

09:46:46 13 And then what happened next that we heard was that 

09:46:50 14 Facebook chose instead to build its infringing messaging 

09:46:55 15 platforms rather than license this technology from Voxer. In 

09:46:59 16 2016, after Facebook Live and Instagram Live launched, Voxer 

09:47:04 17 sent Facebook a detailed patent program and strategy document 

09:47:07 18 as well as a summary of Voxer's patent portfolio. 

09:47:11 19 Now, this is all -- those are unrebutted facts that 

09:47:15 20 show Facebook was aware of Voxer's patents, including patents 

09:47:19 21 and patent applications showing the same specifications, same 

09:47:23 22 inventors, and same assignee, Voxer, which is what we heard 

09:47:27 23 from Ms. Lawton just yesterday. But they chose instead to 

09:47:32 24 build its infringing platforms rather than engage Voxer. 

09:47:37 25 I mentioned that there are cases that discuss the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

10

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09:47:40 1 rarity of smoking gun evidence and instead affirm that 

09:47:44 2 circumstantial evidence is sufficient. And these cases 

09:47:46 3 specifically address the sufficiency of similar and identical 

09:47:54 4 patent specifications in parent applications and parent 

09:47:56 5 patents. 

09:47:57 6 We have several of these cases and are happy to 

09:48:02 7 address those further if Your Honor so wishes. But, for the 

09:48:05 8 record they include the Federal Circuit's decision in 

09:48:12 9 Commscope Techs, T-e-c-h-s, which is a Northern -- pardon me. 

09:48:16 10 That's the Northern District of Texas decision at 2020 WL 

09:48:21 11 11626079. 

09:48:24 12 And in that case, as the Northern District of Texas 

09:48:29 13 wrote, "There is also evidence that Dali knew or should have 

09:48:32 14 known that its actions infringed the '747 patent," which was 

09:48:35 15 the patent-in-suit there, "including that, in 2010, Dali had 

09:48:39 16 knowledge of the parent to the '747 patent which shares the 

09:48:42 17 same specification, inventor, and assignee as the '747 patent." 

09:48:46 18 And then just two more cases for the record. One is 

09:48:50 19 a Federal Circuit decision K-TEC v. Vita-Mix Corp., which is 

09:48:53 20 696 F.3d 1364. And in that one the Federal Circuit affirmed 

09:49:00 21 the sufficiency of a willfulness finding where the infringer 

09:49:05 22 had notice of a patent when it issued because the infringer had 

09:49:10 23 notice of the patent's parent application and notice of the 

09:49:15 24 patent's pending application in affirming a finding of 

09:49:16 25 willfulness. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

11

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09:49:18 1 And then finally, an Eastern District of Texas case 

09:49:21 2 from 2010. This is Synqor, S-y-n-q-o-r, v. Artesyn Techs, 

09:49:28 3 that's A-r-t-e-s-y-n. And that's at 2010, WL 11534393. And 

09:49:37 4 there the court wrote: "While plaintiff may not have direct 

09:49:41 5 evidence of each Defendant's knowledge of each patent, 

09:49:45 6 Plaintiff has established that each defendant was familiar with 

09:49:47 7 its products, technologies, and other patents." 

09:49:49 8 So those cases confirm that it's rare to have smoking 

09:49:52 9 gun evidence, but that the type of evidence we have here, which 

09:49:55 10 span a number of years and repeated disclosures to Facebook is 

09:49:58 11 sufficient for a reasonable jury to find willful infringement 

09:50:02 12 and that Facebook's Rule 50 motion should be denied. 

09:50:05 13 Thank you, Your Honor. 

09:50:06 14 THE COURT: Ms. Anderson, do you desire to respond? 

09:50:08 15 MS. ANDERSON: Very briefly, Your Honor. 

09:50:13 16 Christa Anderson for Meta. 

09:50:15 17 Your Honor, the testimony that counsel has pointed to 

09:50:18 18 all concern discussions before the patents in-suit ever issued. 

09:50:24 19 For the reasons I discussed earlier, these are not sufficient 

09:50:26 20 to satisfy the standard. 

09:50:29 21 What counsel would have the jury do is speculate in 

09:50:32 22 the absence of any evidence that, somehow, Facebook and 

09:50:34 23 Instagram had internally tracked the patents and forecast and 

09:50:39 24 knew that specific patent claim language would issue in the 

09:50:42 25 future, and developed Facebook Live and Instagram Live based on 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

12

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09:50:46 1 unissued patent claims. That is pure speculation, Your Honor, 

09:50:50 2 and not permissible under governing law regarding willfulness. 

09:50:55 3 With respect to the cases that have been cited by 

09:50:57 4 counsel, counsel cited the Commscope matter. That case is 

09:51:02 5 distinguishable on its facts from this case. In that matter 

09:51:06 6 the defendant's CEO testified he actually knew about the 

09:51:10 7 patents-in-suit before the lawsuit. 

09:51:14 8 The K-TEC matter that counsel referenced is also 

09:51:19 9 distinguishable. In that matter Plaintiff provided actual 

09:51:21 10 notice that defendant's product was infringing a parent patent 

09:51:25 11 and actual notice that Defendant's product was infringing the 

09:51:29 12 claims of a pending patent which then issued. Those facts are 

09:51:32 13 not present in this case. 

09:51:35 14 Last, the Synqor case to which counsel cited is a 

09:51:43 15 very lightly reasoned case. There is not a lot of analysis in 

09:51:47 16 that matter. It is difficult to assess what facts were before 

09:51:47 17 the court from the opinion itself. But that particular case 

09:51:54 18 from 2010 does not warrant departing from settled Federal 

09:51:57 19 Circuit precedent governing how willfulness matters should be 

09:52:01 20 resolved. 

09:52:02 21 Thank you, Your Honor.

09:52:03 22 THE COURT: Thank you. 

09:52:07 23 Mr. Stake, Ms. Anderson indicated to the Court that 

09:52:12 24 she will rely on the written motion for the other arguments 

09:52:16 25 under 50(a). Do you care to be heard on any of those, or do 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

13

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09:52:22 1 you -- are you comfortable with the court just relying on the 

09:52:28 2 written motion in making the court's decision? 

09:52:31 3 MR. STAKE: Your Honor, on the other bases for the 

09:52:34 4 motion, we would just like to state for the record that those 

09:52:37 5 should all be denied. In fact, we moved that, instead, 

09:52:45 6 judgment as a matter of law should be entered for infringement 

09:52:48 7 and for validity. And we've provided in this morning's papers 

09:52:53 8 the evidentiary basis for the converse findings. And we 

09:52:57 9 believe that is -- should get us most of the way there. 

09:53:02 10 I would just add for the record that we heard 

09:53:07 11 detailed element-by-element analysis.

09:53:09 12 THE COURT: I'm going to hear you on your motions, so 

09:53:10 13 you don't have to bring those up. I'm just wanting to know if 

09:53:13 14 you want -- and if this is argument against her motion, that's 

09:53:17 15 fine. But you don't have to argue your motions at this time.

09:53:21 16 MR. STAKE: Okay. Your Honor, nothing else at this 

09:53:25 17 time. We believe that the record amply shows the sufficiency 

09:53:31 18 of our experts' infringement analyses, validity analyses, ample 

09:53:39 19 testimony on the unconventionality of Voxer's patents to defeat 

09:53:45 20 the 101 motion, as well as detailed damages analysis by 

09:53:50 21 Mr. Ratliff to defeat the damages motions.

09:53:56 22 Your Honor has already denied motions on lack of 

09:53:59 23 standing as well as on Section 101. We believe that those 

09:54:05 24 issues have been sufficiently briefed for Your Honor, and the 

09:54:08 25 same conclusions should stand. And I think we are satisfied 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

14

Case 1:20-cv-00655-DAE Document 344 Filed 10/12/22 Page 14 of 172
09:54:18 1 with this statement of our position.

09:54:20 2 THE COURT: Thank you. Ms. Anderson, I'll give you 

09:54:24 3 another opportunity if you want to say anything about your 

09:54:25 4 motion.

09:54:26 5 MS. ANDERSON: Nothing further, Your Honor. Thank 

09:54:28 6 you. We submit on our papers. Thank you, Your Honor.

09:54:30 7 THE COURT: All right. The court then at this point 

09:54:32 8 has before it Defendant's Motion for Judgment as Matter of Law 

09:54:35 9 Under Rule of Civil Procedure 50(a), which I have reviewed at 

09:54:42 10 length and entertained argument on, and Section B, that Voxer 

09:54:49 11 failed to offer sufficient evidence of willful infringement.

09:54:54 12 I will address that first. I grant that portion of 

09:55:00 13 the motion and rule as a matter of law that there is no legally 

09:55:11 14 sufficient evidence here of intent to willfully infringe.

09:55:18 15 I believe that discussions and the timeline on this 

09:55:24 16 is far too attenuated to submit this issue to the jury. Yes, 

09:55:30 17 there were discussions. Yes, there was knowledge on the part 

09:55:36 18 of the defendants that there was a patent portfolio out there. 

09:55:41 19 I think it is -- it is clear that the patents had not been 

09:55:48 20 applied for in 2012 or 2016. They certainly had not been 

09:55:53 21 issued. The provisional applications, as has been argued, and 

09:55:59 22 that's what the court finds, don't reflect the claims. There's 

09:56:03 23 only the most general of evidence out there.

09:56:09 24 Yes, the court recognizes the law, that there is 

09:56:12 25 often perhaps never smoking gun evidence of intent to infringe 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

15

Case 1:20-cv-00655-DAE Document 344 Filed 10/12/22 Page 15 of 172
09:56:19 1 of willfulness, and the court always considers circumstantial 

09:56:24 2 evidence in that regard. But I find that this is too weak a 

09:56:30 3 circumstantial case to rise to legally sufficient evidence.

09:56:33 4 So I grant the motion as to the issue of willful 

09:56:41 5 infringement and will not submit that to the jury.

09:56:44 6 I have gone over each and every of the other points 

09:56:53 7 that are made in the defendant's motion, and I find that they 

09:57:00 8 fail on those points, that there is adequate evidence in the 

09:57:05 9 record where the court cannot say that a reasonable jury would 

09:57:11 10 not have a legally sufficient basis to find for Voxer on those 

09:57:19 11 issues. So the other issues in the motion are overruled, and 

09:57:27 12 the motion is denied as regards to the other parts.

09:57:32 13 Now, let me hear from Voxer on its motions that you 

09:57:40 14 divided up. I think there are four separate ones; is that 

09:57:43 15 correct? I want to make sure I didn't miss one. You have 

09:57:48 16 four; is that correct?

09:57:50 17 MR. STAKE: That's correct, Your Honor.

09:57:51 18 THE COURT: All right. Then why don't you argue them 

09:57:53 19 one at a time, but altogether, as opposed to arguing one and 

09:57:58 20 then I go to Facebook and then we come back to you. I think 

09:58:05 21 it's clear, and I think it would just be easier if you argue 

09:58:10 22 your motions together, and then I'll get a response together.

09:58:15 23 MR. STAKE: Your Honor, thank you for the opportunity 

09:58:19 24 to be heard. We did -- we do appreciate the honor to submit 

09:58:24 25 briefing on these four motions. We are happy to rest on our 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:58:28 1 papers as to those four motions.

09:58:30 2 I think one that I would just highlight is the motion 

09:58:33 3 for judgment as a matter of law on validity of the '270 patent. 

09:58:37 4 For that patent it was Dr. Bhattacharjee. He did not present 

09:58:43 5 any invalidity analysis for that patent and confirmed that he 

09:58:49 6 had no invalidity analysis. So we believe that that one is -- 

09:58:53 7 that that one is appropriate to enter a judgment as a matter of 

09:58:57 8 law on at this time.

09:58:59 9 THE COURT: Let me look at that and see if I have any 

09:59:03 10 questions. 

09:59:16 11 Which one of your four motions does that go to?

09:59:26 12 MR. STAKE: So that is Docket Number 320. It's 

09:59:28 13 Voxer's Motion For Judgment as a Matter of Law that the '270 is 

09:59:31 14 not Invalid as Anticipated or Obvious.

09:59:33 15 THE COURT: Okay. Thank you. All right. So you 

09:59:39 16 rest on your papers on those? 

09:59:41 17 MR. STAKE: Yes, Your Honor.

09:59:42 18 THE COURT: All right. Ms. Anderson, do you or 

09:59:44 19 anyone at Facebook have a response?

09:59:44 20 MS. ANDERSON: Thank you, Your Honor. Mr. Paige will 

09:59:44 21 address that.

09:59:45 22 THE COURT: Mr. Paige does.

09:59:46 23 MR. PAIGE: Thank you, Your Honor. Good morning. 

09:59:49 24 Gene Paige on behalf of Meta.

09:59:50 25 Your Honor, with respect to that motion for judgment 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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09:59:52 1 of law -- as a matter of law, Voxer isn't entitled to a 

09:59:58 2 judgment of no invalidity the '270 patent. There's no claim at 

10:00:03 3 issue on validity. As Voxer pointed out in the sidebar 

10:00:07 4 yesterday, when resisting rebuttal on '557 invalidity, Facebook 

10:00:11 5 didn't file a counterclaim for invalidity. So there isn't a 

10:00:15 6 claim at issue here. This is a defense to their claim of 

10:00:18 7 infringement. And Voxer isn't entitled to anything in the 

10:00:24 8 judgment on this. It wasn't a disputed issue at trial, and no 

10:00:27 9 evidence was presented one way or another on it.

10:00:29 10 It doesn't change the status quo, because there is a 

10:00:37 11 presumption of validity in the first place, one that wasn't 

10:00:40 12 addressed at trial. So there is no basis to enter judgment on 

10:00:44 13 what is an affirmative defense, not a claim. And if Voxer is 

10:00:50 14 somehow entitled to judgment on things that were not presented 

10:00:55 15 at trial, were not at issue at trial, then certainly Facebook 

10:00:58 16 would be entitled to a judgment of noninfringement of all 

10:01:02 17 claims except the asserted claims in the '270 patent. And 

10:01:05 18 that's just not the way things are normally done.

10:01:10 19 THE COURT: All right. Anything else? 

10:01:12 20 MR. PAIGE: No, Your Honor.

10:01:13 21 THE COURT: Mr. Stake, any response? 

10:01:14 22 MR. STAKE: Your Honor, two quick points. First, we 

10:01:27 23 believe judgment as a matter of law is appropriate here because 

10:01:30 24 a reasonable jury would not have a legally sufficient 

10:01:33 25 evidentiary basis to find that any asserted claim of the '270 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:01:36 1 patent is invalid as anticipated or obvious. That's point 

10:01:39 2 number one.

10:01:40 3 Point number two is that we understand that Facebook 

10:01:44 4 is not seeking to include the invalidity of the '270 patent in 

10:01:49 5 the verdict form. So as long as that is the case, that takes 

10:01:55 6 care of much of this issue. The jury certainly should not be 

10:01:58 7 given an opportunity to reach a verdict on invalidity of this 

10:02:03 8 patent.

10:02:10 9 THE COURT: Thank you. All right. I have reviewed 

10:02:14 10 the four motions. I'll run through them: Voxer's Motion For 

10:02:18 11 Judgment as Matter of Law that the '270 patent is Not Invalid 

10:02:22 12 as Anticipated or Obvious; Voxer's Motion For Judgment as a 

10:02:26 13 Matter of Law of Infringement of the '270 patent; Voxer's 

10:02:33 14 Motion For Judgment as a Matter of Law of Infringement on the 

10:02:37 15 '557 Patent; and Voxer's Motion For Judgment as a Matter of Law 

10:02:43 16 that the '557 Patent is not Invalid as Anticipated or Obvious.

10:02:48 17 I have gone back through my notes of the trial also, 

10:02:55 18 and much as I have found in the major part of the motion that 

10:03:03 19 defendants file, I cannot say that a reasonable jury could not 

10:03:10 20 have legally sufficient basis to find for Meta on any of the 

10:03:16 21 issues raised by the plaintiff. So the plaintiff's motion for 

10:03:23 22 judgment as matter of law under Rule 50(a), the four of them, 

10:03:27 23 are each overruled.

10:03:29 24 Now, that gets us to the Court's Charge. Have 

10:03:37 25 you-all had an opportunity to discuss this, and where are we on 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:03:42 1 that? 

10:03:46 2 MR. STAKE: Your Honor, Sam Stake on behalf of Voxer. 

10:03:48 3 Mr. Silbert and I were able to make a good deal of 

10:03:51 4 progress last night in narrowing any remaining disputes. There 

10:03:55 5 are just a couple of lingering issues that we are prepared to 

10:04:02 6 essentially submit competing versions on to Your Honor and 

10:04:05 7 leave to Your Honor's discretion. 

10:04:09 8 I think there are essentially three that I would 

10:04:12 9 address. The first one is that Voxer wishes for Your Honor to 

10:04:18 10 include a jury instruction on this judicial notice issue that 

10:04:23 11 we raised yesterday. I have a copy of that to submit to 

10:04:27 12 Your Honor. 

10:04:27 13 To recap, this is the question of taking judicial 

10:04:32 14 notice of the public records of the five issued Voxer patents 

10:04:37 15 before February 9th, 2012, which is when Mr. Deng, Facebook's 

10:04:43 16 head of product, discussed the Voxer patents. I think we 

10:04:48 17 have -- we had oral argument on that yesterday, and we have a 

10:04:52 18 version of that jury instruction to hand up to Your Honor for 

10:04:57 19 your consideration.

10:04:58 20 THE COURT: All right. You may pass those up.

10:05:09 21 MR. SILBERT: Your Honor, good morning. David 

10:05:11 22 Silbert for Defendant. 

10:05:12 23 May I just ask about the best way to proceed? Are we 

10:05:16 24 going to take these issues seriatim? And I assume, it sounds 

10:05:20 25 like, Sam, you want to start with the judicial notice issue? 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:05:24 1 MR. STAKE: That would be fine.

10:05:26 2 MR. SILBERT: Your Honor, would -- 

10:05:27 3 THE COURT: Well, I'm not sure -- I want to make sure 

10:05:35 4 we're on the same page as what I perceive the kind of ground 

10:05:41 5 rules to be here. I have started with what you presented as 

10:05:48 6 your proposed final jury instructions back at the beginning of 

10:05:54 7 trial. We are making some adjustments in those even as we 

10:05:58 8 speak. 

10:06:00 9 For instance, I think the word "foreperson" is a word 

10:06:06 10 whose time never should have come in the history of 

10:06:09 11 jurisprudence. I realize the world we live in and we don't 

10:06:13 12 refer to "foreman" anymore, but I consider "foreperson" one of 

10:06:18 13 the more strained words, so we're going to use "presiding 

10:06:22 14 juror" throughout. And we're making some other little changes 

10:06:25 15 like that.

10:06:25 16 But I think what I would like to do is kind of get an 

10:06:31 17 overview on whatever you have on where you areas of dispute 

10:06:37 18 are, and then I want to take a recess and consider these and 

10:06:41 19 look at what I'm doing and then come back and resolve them. So 

10:06:45 20 we don't need to argue them all right now. 

10:06:47 21 So I've got down as area of disagreement, one, the 

10:06:52 22 judicial notice issue. And my presumption from looking at this 

10:07:02 23 Mr. Stake wants what he has presented me in the Court's Charge. 

10:07:06 24 You are opposed to anything in the charge about the judicial 

10:07:11 25 notice. So you won't be submitting -- you're not concerned 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:07:16 1 about the way he's worded it because you don't think it ought 

10:07:18 2 to be there at all, so you're not going to be submitting 

10:07:21 3 competing language.

10:07:23 4 MR. SILBERT: It is correct that we are opposed to it 

10:07:25 5 being there. With the Court's permission, when that issue is 

10:07:29 6 argued, Ms. Parikh will argue it, and I don't actually know if 

10:07:32 7 she's going to critique the actual wording of the instruction. 

10:07:36 8 But our fundamental point is that we don't think that 

10:07:38 9 instruction should be there.

10:07:40 10 THE COURT: Well, Ms. Parikh, I'll give you a 

10:07:41 11 heads-up. On anything where you're going to have a problem 

10:07:47 12 with the language at any point, then I want to see your 

10:07:50 13 language, too. So I would presume, in the absence of any 

10:07:54 14 language that you have, that if I were to determine to submit 

10:08:01 15 this instruction, you would object to it but you would not 

10:08:05 16 propose competing language; is that correct? 

10:08:08 17 MS. PARIKH: Yes, Your Honor. Meta proposes the 

10:08:10 18 instruction in its entirety, as was discussed at length 

10:08:14 19 yesterday, was premised on willfulness, and that is no longer 

10:08:17 20 in the case.

10:08:17 21 THE COURT: All right. So what other issues do we 

10:08:21 22 have?

10:08:21 23 MR. SILBERT: Your Honor, may I raise a practical 

10:08:23 24 issue of, I guess, version control? And I apologize, but we 

10:08:29 25 jointly have made some revisions. There's I believe, by my 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:08:35 1 count, four that we would like to discuss with Your Honor some 

10:08:39 2 of the language. I don't think it's going to be too painful. 

10:08:43 3 But we did make some agreed changes in the 

10:08:46 4 instructions, which I think would mean that the version we're 

10:08:50 5 working off of isn't going to match the version Your Honor has 

10:08:55 6 been making changes to.

10:08:56 7 THE COURT: Well, has that been e-mailed to us, where 

10:08:59 8 is your version?

10:09:00 9 MR. SILBERT: I don't believe that it has.

10:09:02 10 MR. STAKE: We have a copy of that ready to go to 

10:09:05 11 Your Honor. There are a few areas of essentially cleaning up 

10:09:08 12 the instructions and agreed-upon changes that we will e-mail to 

10:09:14 13 Ms. Oakes.

10:09:15 14 THE COURT: Well, what I would think I would like to 

10:09:17 15 do, then, before we get to further areas of disagreement is to 

10:09:24 16 get that version set up in our computer, because that's the way 

10:09:29 17 we're going to run it out eventually after we've made changes 

10:09:34 18 and what have you.

10:09:35 19 So I think what I would like for you to do is e-mail 

10:09:39 20 your version to us. And then I'll be taking a recess, and we 

10:09:47 21 will -- we will combine that with what we're thinking about and 

10:09:51 22 I'll get copies of that out to you-all. Because I don't think 

10:09:57 23 we're going to get anywhere if we're not dealing off the same 

10:10:00 24 copy. 

10:10:00 25 MR. STAKE: Your Honor, that is a sensible approach. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:10:02 1 And in view of Your Honor's ruling on the willfulness issue, it 

10:10:06 2 will give us an opportunity to clean up a few of the remaining 

10:10:09 3 issues. And I believe it will bring us closer to finality 

10:10:14 4 here.

10:10:14 5 THE COURT: All right. So when -- you know, can I 

10:10:19 6 expect something right now so we can go back in chambers and we 

10:10:22 7 can start working on it from our point of view, or what are we 

10:10:24 8 talking about on timeline?

10:10:26 9 MR. SILBERT: I think from a timing perspective, if I 

10:10:30 10 may make a suggestion, Your Honor, I think it would be best to 

10:10:33 11 send the Court the version that we were working on as of this 

10:10:36 12 morning right now and we could talk through the changes. 

10:10:39 13 I'll reiterate, I don't think there were a lot of 

10:10:41 14 disputed issues, and I think Your Honor -- on our end, and I 

10:10:45 15 think Your Honor is going to be able to make decisions pretty 

10:10:48 16 quickly on each one of them.

10:10:49 17 THE COURT: All right. Go ahead and send that to us.

10:10:53 18 MR. SILBERT: Are you able to do that? 

10:10:54 19 MR. STAKE: Your Honor, if we may, could we just take 

10:10:57 20 a few minutes to -- 

10:10:59 21 THE COURT: Sure.

10:11:00 22 MR. STAKE: -- get this over to you? 

10:11:01 23 THE COURT: I'm just trying to figure out when you 

10:11:02 24 want to do this, because I've got other things I can be working 

10:11:03 25 on. But it's -- I have got to have the charge in our word 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:11:14 1 processing equipment so, as I make changes -- and there's going 

10:11:17 2 to be probably some formatting changes because of the way I do 

10:11:21 3 things, so I can do that. So I need that as quickly as 

10:11:25 4 possible, knowing the jury is going to be here in three hours. 

10:11:28 5 So how much time are you talking about? 

10:11:30 6 As I've told the lawyers that were at the bench a 

10:11:33 7 couple of times during this trial, these things take much 

10:11:35 8 longer with all the fancy equipment than I can ever imagine. 

10:11:40 9 When I started trying lawsuits a long time ago, and I have now 

10:11:50 10 had a law license 53 years, which is shocking to me, I swear 

10:11:55 11 before we had this fancy equipment we got charges done more 

10:11:58 12 quickly and copies circulated to all of the lawyers than we do 

10:12:04 13 now. So we can burn up three hours here in no time at all. 

10:12:07 14 So I need to know -- I need do get it as quickly as 

10:12:10 15 possible so we can start working on it on our part while you're 

10:12:14 16 working on your part before we talk again. So when am I going 

10:12:19 17 to get something? 

10:12:20 18 MR. STAKE: Thirty minutes, Your Honor.

10:12:21 19 THE COURT: Okay. That's a long time. But get it to 

10:12:25 20 me as quick as we can. We'll be in recess until I can get it 

10:12:29 21 printed out and worked on myself. 

10:12:34 22 MR. SILBERT: Your Honor, I just put this out as an 

10:12:37 23 option, because we are short on time. And, obviously, whatever 

10:12:39 24 the Court prefers, we are fine with. But we do have hard 

10:12:43 25 copies, and I wonder if it wouldn't make sense, given the time 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:12:47 1 constraints -- 

10:12:48 2 THE COURT: Give me a hard copy, and then you-all do 

10:12:53 3 what you're going to do. And I'll take this back and start 

10:12:59 4 going through it and seeing where we are. So we'll just be at 

10:13:04 5 ease while you-all are doing what you're doing and I'm doing 

10:13:07 6 what I'm doing.

10:13:08 7 MR. SILBERT: May I address one very brief 

10:13:10 8 housekeeping issue?

10:13:11 9 THE COURT: Yes.

10:13:11 10 MR. SILBERT: We prepared a proposed order regarding 

10:13:13 11 the provisional sealing that the Court had ordered before the 

10:13:18 12 trial. I have copies. Voxer's counsel has confirmed that they 

10:13:22 13 don't oppose signing it.

10:13:33 14 THE COURT: I'll do that.

10:13:41 15 MR. SILBERT: Your Honor, would it be helpful for me 

10:13:43 16 to identify the I think four areas of dispute before 

10:13:47 17 Your Honor? 

10:13:47 18 THE COURT: No. Because I've got to get -- see, I've 

10:13:50 19 got to get this in my format because it's not in my format. 

10:13:54 20 You know, for instance, what I send to the jury is 

10:13:56 21 not going to say "Final Joint Jury Instructions." That's not 

10:14:00 22 what I do. I don't -- I'm not likely to use the intermediate 

10:14:12 23 headings of "Jury Instruction 14," "Jury Charge," or anything 

10:14:16 24 like that. I'm likely to delete all of those. As I said, one 

10:14:22 25 of the things I know I'm going to do is we're going to refer to 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:14:24 1 the "presiding juror." You know, I will give paragraph 

10:14:32 2 headings, but I'm not going to call them a jury instruction 

10:14:37 3 number. And I'm going to look and see as we go through these, 

10:14:41 4 you know, what language adjustments that I may have due to the 

10:14:45 5 way I usually give things.

10:14:46 6 So the biggest thing is we've got a lengthy set of 

10:14:50 7 instructions here, you know, about 40 pages worth, 39 pages 

10:14:57 8 worth. And that takes a good long time to get that and run out 

10:15:02 9 and what have you. And so I need to get this done as quickly 

10:15:08 10 as I can because we can't go any further until this gets into 

10:15:12 11 my machine.

10:15:13 12 MR. SILBERT: Understood.

10:15:14 13 MR. STONE: Your Honor, I've confirmed with my team, 

10:15:15 14 and we'll have it you in the next 10 minutes.

10:15:17 15 THE COURT: Okay. That's good. And everybody just 

10:15:19 16 be at ease while we're working on this, because I don't know 

10:15:22 17 when I'm going to back out and when I'm not. So we're on it.

10:15:25 18 (Recess)

10:54:50 19 (Open court, no jury) 

10:54:50 20 THE COURT: All right. Be seated, please. What I 

10:54:52 21 have done is looked at the most recent draft that you sent us, 

10:55:00 22 and we'll work off of that. 

10:55:08 23 But, at the time, I'm going to refer to the way I 

10:55:13 24 generally give things and we'll work it out. It doesn't mean 

10:55:20 25 I'm wedded to any of this. So take out your draft. Let me go 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:55:24 1 through it. The first page we're going to format into our way, 

10:55:36 2 but there's no substantive changes. And I'm going to -- after 

10:55:45 3 we discuss your stuff, then I'll run out another draft the way 

10:55:47 4 we do things. 

10:55:49 5 I generally don't give the jury a table of contents, 

10:55:52 6 but I'm open-minded on that. Throughout the charge I'm not 

10:55:58 7 going to say "Jury Instruction 14" or what have you. I won't 

10:56:03 8 give those numbers. But I will give them, generally, a 

10:56:10 9 lead-in, a caption. 

10:56:12 10 Now, looking on your current draft, if you look on 

10:56:16 11 pages 1 and 2, everywhere you use "counsel" or "attorneys," I'm 

10:56:21 12 going to use "lawyers." We always get bogged down in charges 

10:56:27 13 where we call ourselves different ways, and I've found the 

10:56:33 14 jurors are generally happy enough if I just say "lawyers." And 

10:56:37 15 sometimes we miss it, but I'm not going to use "counsel" or 

10:56:41 16 "attorneys," I'm just going to use "lawyers." 

10:56:43 17 And then page 2 "foreperson" becomes "presiding 

10:56:47 18 juror." 

10:56:49 19 Now, let me ask you a question about your pages 3 

10:57:02 20 and 4. Three is charts and summaries, and four is 

10:57:06 21 demonstrative exhibits. I guess we really need both of those, 

10:57:20 22 but I don't know if there's any way we can combine them into 

10:57:24 23 one. They refer to the same thing. But if we keep them the 

10:57:29 24 way they are, and it's fine with me if we do, I'm going to -- 

10:57:40 25 I'm going to use the word "demonstrative" wherever we use 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:57:45 1 "exhibits" just because I want it clear to them. 

10:57:48 2 So the demonstrative exhibits thing would read 

10:57:53 3 "Certain demonstrative exhibits shown to you, such as 

10:57:55 4 PowerPoint presentations, posters, or models are not themselves 

10:58:00 5 evidence. It's the parties' description of picture or model 

10:58:02 6 used. If your recollection of the evidence differs from the 

10:58:05 7 demonstrative exhibit, rely on your recollection." 

10:58:08 8 So, if you're comfortable, we'll do charts and 

10:58:12 9 summaries and demonstratives.

10:58:15 10 MR. SILBERT: David Silbert for Defendants, 

10:58:16 11 Your Honor. 

10:58:16 12 I was simply going to say we of course defer to the 

10:58:19 13 court and to what plaintiffs want. But I don't think in 

10:58:21 14 looking at this the parties admitted any actual summary 

10:58:25 15 exhibits, as I would think of a summary exhibit that summarizes 

10:58:30 16 voluminous documents. 

10:58:30 17 So I think on our part we would be okay doing away 

10:58:33 18 with that instruction and simply reading the instruction on 

10:58:37 19 demonstratives. 

10:58:38 20 THE COURT: I think that's right. How do you feel 

10:58:40 21 Mr. Stake? 

10:58:48 22 MR. STAKE: Your Honor, we had in mind here -- 

10:58:51 23 THE COURT: You're going to have to speak into a 

10:58:53 24 microphone. I don't care if you sit down, but I've got to be 

10:58:56 25 able to hear you. And there's one right in front of you if you 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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10:58:58 1 don't want to come all the way up here.

10:59:03 2 MR. STAKE: Your Honor, we had in mind here the sorts 

10:59:05 3 of charts and summaries that came up in presentations by 

10:59:09 4 experts.

10:59:12 5 THE COURT: Well, but all that the jury is going to 

10:59:15 6 see is what were actually admitted into evidence.

10:59:23 7 MR. STAKE: And I'm not aware of any charts and 

10:59:25 8 summaries that have been introduced into evidence. And so 

10:59:31 9 perhaps -- perhaps a reference by adding a reference to charts 

10:59:34 10 and summaries in Jury Instruction 16, that would help to 

10:59:40 11 clarify the point that the charts -- 

10:59:46 12 THE COURT: What -- what charts and summaries other 

10:59:50 13 than what were in the demonstratives did the jury ever see 

10:59:58 14 during this case? Just tell me because I can't remember. I'm 

11:00:00 15 not suggesting they didn't see any. I just don't remember any.

11:00:04 16 MR. STAKE: I believe Your Honor is correct, that 

11:00:07 17 these are charts and summaries that appeared in demonstratives.

11:00:09 18 THE COURT: So I think if we just say 

11:00:12 19 "demonstratives," I think we're fine.

11:00:15 20 MR. STAKE: Your Honor, that's fine.

11:00:25 21 THE COURT: And I have gone through, like on page 7, 

11:00:27 22 I cut willfulness. Just because we've heard testimony from a 

11:00:39 23 lot of people that can be accused of being nerds on some things 

11:00:43 24 during this trial, when we go to page 8, I'm kind of a nerd on 

11:00:48 25 editing, so I hyphenate "clear-and-convincing evidence." I'm 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:00:54 1 into phrasal adjectives. That doesn't affect anything.

11:00:56 2 Now, page 9. Here is something we're going to come 

11:01:02 3 back to. But initially on page 9, I've gone through and 

11:01:06 4 deleted the sentences on willfulness. Such as the second 

11:01:12 5 sentence in the paragraph after the bullet points and the 

11:01:17 6 fourth sentence in that paragraph. And then in the last full 

11:01:20 7 paragraph on the page, I've deleted the last four lines.

11:01:33 8 On page 10, I found that the caption is a little 

11:01:43 9 clunky, and I think I'm just going to say, "The role of a claim 

11:01:51 10 of a patent," and I think that picks everything else up. 

11:01:57 11 That's just a lead-in anyway.

11:01:59 12 Page 12, again, my nerdy editor stuff, I don't like 

11:02:05 13 to put an "s" in parenthesis. So in that paragraph after the 

11:02:11 14 bullet points that say claims with "s" in parenthesis, I'm just 

11:02:16 15 going to say "claim or claims." 

11:02:26 16 There's a couple of times we say proven. English 

11:02:34 17 teachers are divided on whether or not you say "has proven." I 

11:02:39 18 say "has proved" because I think jurors understand that more.

11:02:44 19 Now, when we get to page 15, this brings up something 

11:02:53 20 that I generally do, and I think it is better than the way you 

11:02:58 21 have done it. And that is, I think we ought to have at the 

11:03:06 22 very beginning under burden of proof definitions of 

11:03:11 23 preponderance of the evidence and clear and convincing evidence 

11:03:14 24 as opposed to trying to stick it in here.

11:03:19 25 So I'm likely to cut, and also because I don't like 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:03:23 1 the italicized i.e., where we say "Must prove by a 

11:03:29 2 preponderance of the evidence, i.e., it is more like than 

11:03:33 3 not" -- I'm going to cut that -- "must prove by a preponderance 

11:03:36 4 of the evidence that Facebook performed those." 

11:03:38 5 And then up at the beginning somewhere, and we'll go 

11:03:42 6 back and I'll kind of walk through the outline of what I 

11:03:45 7 usually do, I'm likely to have a burden of proof section that 

11:03:54 8 reads, "In any legal action, facts must be proved by a required 

11:03:58 9 amount of evidence known as the burden of proof. The burden of 

11:04:00 10 proof in this case is on Voxer on some issues and on Facebook 

11:04:06 11 for other issues. There are two burdens of proofs that you 

11:04:10 12 will apply in this case. One is the preponderance of the 

11:04:11 13 evidence, and the other is clear and convincing evidence." 

11:04:15 14 And then "Preponderance of the evidence. Voxer has 

11:04:17 15 the burden of proving patent infringement and damages by a 

11:04:21 16 preponderance of the evidence. To establish by a preponderance 

11:04:24 17 of the evidence means to prove something is more likely so than 

11:04:29 18 not so. It is simply the greater weight of the credible 

11:04:33 19 evidence. If you find that Voxer has failed to prove any 

11:04:36 20 element of its claim by a preponderance of the evidence, then 

11:04:40 21 it may not recover on that claim."

11:04:42 22 And then "Clear and convincing evidence. Facebook 

11:04:46 23 has the burden of proving patent invalidity by clear and 

11:04:49 24 convincing evidence. When a party has the burden of proving 

11:04:53 25 any claim or defense by clear and convincing evidence, it means 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:04:57 1 that the party must present evidence that leaves you with the 

11:05:00 2 firm belief or conviction that it is highly probable that the 

11:05:06 3 factual contentions of the claim or defense are true. This is 

11:05:09 4 a higher standard of proof than proof by a preponderance of the 

11:05:13 5 evidence, but it does not require proof beyond a reasonable 

11:05:16 6 doubt." 

11:05:18 7 Something to that effect. We can talk about the 

11:05:19 8 language of that later. But I do want to have the burden stuff 

11:05:25 9 moved back up to its own sections at the beginning of the 

11:05:29 10 Court's Charge.

11:05:31 11 MR. SILBERT: Your Honor, I simply was going to say, 

11:05:33 12 if it's helpful, that makes sense to us. There are -- I don't 

11:05:36 13 know if the Court was looking at those, but there are 

11:05:38 14 instructions whose language match what the Court read very 

11:05:42 15 closely at pages 7 and 8, without the introductory, I think, 

11:05:47 16 comments about burdens of proof. 

11:05:50 17 THE COURT: Yeah. No. I saw that, and it's very 

11:05:52 18 close. But I think my point is to kind of roll them into 

11:06:00 19 something that -- you'll see when I do this, but that's one of 

11:06:05 20 the things we're going to do. 

11:06:07 21 Now, while we're on 15, we've got -- Voxer wants the 

11:06:15 22 language at the bottom of the page, "Direct infringement is a 

11:06:19 23 strict liability claim. A party can directly infringe a patent 

11:06:22 24 without knowing of the patent or without knowing that what the 

11:06:27 25 party is doing is patent infringement," and Facebook opposes.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:06:31 1 So I don't want to hear much argument. I want Voxer 

11:06:37 2 to tell me what your authority for my putting that in there, 

11:06:42 3 and I want Facebook to tell me what's your authority for my not 

11:06:46 4 putting it in there.

11:07:04 5 MR. STAKE: Your Honor, we believe that this strict 

11:07:06 6 liability language is important to clarify the issue of jury -- 

11:07:11 7 potential jury confusion, which is the notion that Facebook 

11:07:16 8 would need to have known about -- 

11:07:18 9 THE COURT: No, no. Tell me what your authority is. 

11:07:19 10 I don't want any argument on it.

11:07:21 11 MR. STAKE: Okay. I have a case that I can have -- 

11:07:24 12 THE COURT: That's what I want to see.

11:07:26 13 MR. STONE: Okay. Can I have ...

11:07:29 14 THE COURT: Yeah. I don't have to see it this very 

11:07:31 15 instant.

11:07:33 16 MR. STAKE: Okay. I have the cite for Your Honor.

11:07:35 17 THE COURT: All right. What is the cite? 

11:07:36 18 MR. STAKE: Okay. It is BMC Resources v. Paymentech.

11:07:44 19 THE COURT: All right.

11:07:45 20 MR. STAKE: And this is 498 F-dot-three-d 1373.

11:07:50 21 THE COURT: Now, do you mean Federal Third? Is that 

11:07:52 22 what you're saying? 

11:07:54 23 MR. STAKE: It's Federal Circuit.

11:07:55 24 THE COURT: But you don't have to say 

11:07:58 25 "F-dot-three-d." You're saying Federal Third? 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:07:58 1 MR. STAKE: Federal Third. Yes, your Honor.

11:08:00 2 THE COURT: Okay. I can understand that.

11:08:03 3 MR. STAKE: Yes.

11:08:03 4 THE COURT: All right. And the page number? 

11:08:05 5 MR. STAKE: 1381. And it states that direct 

11:08:07 6 infringement of a patent is a strict liability offense.

11:08:11 7 THE COURT: Well, does it say that it has to go in 

11:08:13 8 the Court's Charge? 

11:08:14 9 MR. STAKE: I don't believe that this was addressing 

11:08:16 10 the Court's Charge.

11:08:17 11 THE COURT: All right. 

11:08:19 12 MR. STAKE: It's a Federal Circuit decision.

11:08:25 13 MR. SILBERT: Very briefly, Your Honor, we don't 

11:08:27 14 believe this paragraph is necessary. That said, we don't have 

11:08:32 15 a strong opposition to it. Our only opposition is we don't 

11:08:34 16 like the term "strict liability claim" in a jury instruction. 

11:08:38 17 I don't think that's helpful to the jury, it's a legal term, 

11:08:41 18 and it has little bit of a nefarious air to it.

11:08:44 19 THE COURT: Well, let's look at it this way. If I 

11:08:47 20 were just to strike that first line and say, "A party can 

11:08:52 21 directly infringe a patent without knowing of the patent or 

11:08:56 22 without knowing that what the party's doing is patent 

11:08:59 23 infringement," you're comfortable with that? It's you that 

11:09:02 24 want the words "strict liability"? 

11:09:04 25 MR. STAKE: That's right. We're just trying to avoid 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:09:06 1 jury confusion on this issue of -- 

11:09:08 2 THE COURT: Well, I think I'm going to confuse them 

11:09:10 3 more. I'm not going to give that, because then I feel like I'm 

11:09:13 4 going to have to define "strict liability" and we get into a 

11:09:17 5 whole different thing. I think the substance is picked up in 

11:09:22 6 the language, so I'm going to do that.

11:09:26 7 MR. STAKE: Thank you, Your Honor.

11:09:27 8 THE COURT: Now, over on page 18, Facebook opposes 

11:09:43 9 the blue language?

11:09:59 10 MR. SILBERT: Your Honor, we think that for the Court 

11:10:03 11 to call the claims of the '557 patents inventions, particularly 

11:10:11 12 in an instruction on invalidity, is uncalled for and 

11:10:15 13 prejudicial. We have a contrary proposal that we've shared 

11:10:21 14 with counsel that I'd like to hand up to the Court, if I may, 

11:10:26 15 for this instruction. 

11:10:28 16 It does two things. Instead of saying, "The 

11:10:40 17 inventions were invented" as an instruction from the Court, it 

11:10:45 18 says, "The '557 patent claims priority to the date to which 

11:10:50 19 they claim priority," which is really the issue and we think 

11:10:53 20 much more appropriate language for a jury instruction. 

11:10:56 21 The other thing it does is it indicates that the 

11:11:01 22 Seckin reference is prior art, and it includes some statements 

11:11:04 23 which are in front of Your Honor to the effect that all of the 

11:11:08 24 disclosures, including the figures and text of Seckin are 

11:11:13 25 considered part of the prior art. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:11:14 1 We believe this is necessary in light of the 

11:11:17 2 cross-examination and questioning which we think might have 

11:11:20 3 created some confusion. There was some suggestion in the 

11:11:23 4 questioning to the effect of comparing the claims of Seckin to 

11:11:29 5 the patent, which is not the appropriate test for the jury, of 

11:11:32 6 suggesting that because the Seckin application did not issue as 

11:11:36 7 a patent, that somehow diminishes its status as prior art. So 

11:11:41 8 we'd simply like this instruction to clarify that all of the 

11:11:44 9 text of Seckin is to be considered prior art.

11:11:47 10 THE COURT: Well, let me ask you both: Why do I need 

11:11:50 11 and why does the jury need either one of your proposed 

11:11:53 12 instructions? 

11:11:54 13 Why does the jury need anything about "inventions 

11:11:59 14 defined were invented on a certain date," and why do I get into 

11:12:14 15 detail on the Seckin reference?

11:12:14 16 MR. STAKE: Your Honor, we heard various arguments 

11:12:15 17 from Facebook's counsel, including in opening statement and 

11:12:20 18 elsewhere, that the fact that these patents were applied for in 

11:12:23 19 2017 and '18 and issued in 2018 and '19 should somehow impact 

11:12:29 20 the validity of these patents. And so this is a -- this first 

11:12:37 21 sentence is taken directly from the AIPLA jury instruction.

11:12:40 22 We don't believe that the invention date is -- is 

11:12:43 23 disputed as to October 19th, 2007. I don't -- and I don't 

11:12:48 24 believe I've heard any opposition to the second sentence here 

11:12:52 25 that we've proposed.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:12:54 1 As to the rest of this instruction, I think this is 

11:12:59 2 probably akin to the juror notebook issue, just where we'd be 

11:13:03 3 concerned that this would put a thumb on the scale, so to 

11:13:08 4 speak, as to this piece of prior art. We think that the issue 

11:13:12 5 of when this reference was publicly disclosed and these other 

11:13:18 6 contentions here were developed in cross-examination, including 

11:13:22 7 yesterday. 

11:13:22 8 And so we would ask for just these first two 

11:13:27 9 sentences with the invention language, and I would ask to hand 

11:13:32 10 up this AIPLA model jury instruction.

11:13:39 11 THE COURT: Would you not hand it up if you weren't 

11:13:41 12 asked to hand it up? Since we're talking about the way things 

11:13:47 13 are worded, you kind of act like, well, now I've had my 

11:13:50 14 argument but somebody else at my table wants me to show this to 

11:13:55 15 you, so I'm just going to do it.

11:13:57 16 MR. STAKE: Your Honor, would you like me to hand 

11:13:59 17 this up to you.

11:14:00 18 (Laughter)

11:14:00 19 THE COURT: Hand it to me.

11:14:26 20 So, Mr. Silbert, you know, this -- I presume that 

11:14:36 21 these cases probably support the AIPLA model patent jury 

11:14:43 22 instructions. 

11:14:47 23 MR. SILBERT: I haven't seen, Your Honor, what 

11:14:49 24 counsel just handed you.

11:14:51 25 THE COURT: Well, show him a copy of that. Is this 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:14:55 1 the only copy that lives? 

11:15:02 2 MR. SILBERT: The AIPLA, which is an independent body 

11:15:08 3 of attorneys -- 

11:15:08 4 THE COURT: I'm very aware of that.

11:15:10 5 MR. SILBERT: -- has not been the primary source of 

11:15:12 6 jury instructions. As Your Honor knows, we've tried to use the 

11:15:15 7 Northern District of California instructions. I guess I'd 

11:15:17 8 reiterate and I could read these cases, but I'd say we have a 

11:15:21 9 pretty strenuous objection to the Court referring to the patent 

11:15:27 10 claims as inventions at all, and particularly in a -- in an 

11:15:31 11 instruction on invalidity. And I just don't see why that's 

11:15:34 12 necessary.

11:15:35 13 If they want to make a point about priority date, 

11:15:38 14 it's perfectly accurate to say as -- and if it's necessary, and 

11:15:42 15 I'm really not sure it's necessary, as the Court commented. 

11:15:46 16 But to the extent it is necessary, it's perfectly accurate and 

11:15:51 17 appropriate to say that the patents claim priority to a 

11:15:54 18 particular date, and then the further explanation that that's 

11:15:57 19 the date that the jury should consider for purposes of prior 

11:16:01 20 art.

11:16:01 21 THE COURT: All right. I'm going to look at this. 

11:16:03 22 Let me tell you what I'm leaning toward doing, is not using the 

11:16:12 23 invention language, because that's really not the way I've ever 

11:16:16 24 seen one of these cases tried, much less this one. I've got a 

11:16:21 25 world of respect for the AIPLA, but it seems like it does 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:16:27 1 insert something where we've argued all along about filings at 

11:16:32 2 the patent office and what we do and that your patent contains 

11:16:36 3 the invention.

11:16:36 4 I'm inclined, so you can think about this a little 

11:16:40 5 bit and prepare your objections accordingly, to say, "The '557 

11:16:45 6 patent claims priority to a provisional application filed on 

11:16:49 7 October 19, 2007," which is the first sentence of what Facebook 

11:16:55 8 wants, and then saying, "For the purposes of determining the 

11:17:00 9 validity of the '557 patent, you may only consider prior art 

11:17:04 10 that was publicly disclosed before October 19th, 2007" and not 

11:17:09 11 say anything specific about the Seckin reference. And you-all 

11:17:15 12 can pick that up in argument and argue it that way.

11:17:18 13 And so that's -- I'm going to give some more thought 

11:17:22 14 to this, but that's what I'm inclined to do. 

11:17:47 15 You know, page 23, I don't really have a problem of 

11:17:50 16 your level of ordinary skill in the art. I just pass on this 

11:17:55 17 as an editorial comment. I think the person of skill in the 

11:18:03 18 art is the single most confusing thing to juries in a patent 

11:18:09 19 case, because I never have lawyers tell me we're of agreement 

11:18:18 20 and you look at the jury and say, "A person of skill in the art 

11:18:21 21 is so and so and this is what they've done." 

11:18:24 22 When I ask people during Markman hearings, well, tell 

11:18:27 23 me who the person of skill in the art is, people look at their 

11:18:30 24 shoes and they dance around, and nobody ever wants to tell me 

11:18:33 25 what a person of skill in the art is. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:18:35 1 I don't think the jury here knows who a person of 

11:18:39 2 skill in the art is. But I think, since that's the way these 

11:18:47 3 things go, your proposed paragraphs is as good as any. But 

11:18:51 4 I've always thought that we ought to confront the jury more 

11:18:58 5 with exactly who is supposed to be analyzing this. 

11:19:01 6 I have a farming patent right now which, believe me, 

11:19:04 7 if it goes to trial is going to be a whole lot easier to try 

11:19:07 8 than this case was, involving sesame seeds. I mean, I can 

11:19:11 9 grasp all of the things about this. And I feel like at some 

11:19:15 10 point, if we try that case, I'm just going to look at the jury 

11:19:16 11 and say, "It's a farmer. Just know that. That's all you have 

11:19:20 12 to worry about. Forget all about these technical terms about 

11:19:24 13 they grow or not. What would have a farmer have known at the 

11:19:27 14 time this seed was done? 

11:19:30 15 All right. Page 25. I'm not going to say "The Court 

11:19:40 16 will account for interest later, if appropriate." I'm going to 

11:19:46 17 say, "You must not add any amount of damages for interest." I 

11:19:50 18 may word it a little bit differently because I always put that 

11:19:53 19 in, that they're supposed to just look at the damages and 

11:19:56 20 they're not supposed to give any consideration to anything else 

11:20:00 21 that is outlying out there. So there will be some language in 

11:20:04 22 one that I bring out that you will see that will say something 

11:20:07 23 about not putting interest in there.

11:20:20 24 MR. SILBERT: Thank you, Your Honor.

11:20:21 25 THE COURT: Now, tell me about page 30, your proposed 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:20:23 1 jury instruction 38.

11:20:27 2 MR. SILBERT: This was an agreed instruction in the 

11:20:30 3 set of agreed instructions that we submitted pretrial. 

11:20:35 4 THE COURT: Yes.

11:20:36 5 MR. SILBERT: Voxer is now proposing to strike it. 

11:20:38 6 We oppose striking it. It's a correct statement of the law, as 

11:20:43 7 everyone agreed when we submitted it as an agreed instruction. 

11:20:46 8 And it's highly applicable in this case and all patent cases.

11:20:50 9 I think what Voxer is going to say is that Facebook 

11:20:53 10 did not offer certain potential design-around, noninfringing 

11:21:00 11 alternatives that we had described in discovery and, had 

11:21:03 12 Your Honor given us a whole lot more time for this trial, I 

11:21:06 13 think maybe we would have. But that's something that hit the 

11:21:09 14 cutting room floor. But that doesn't matter for purposes -- 

11:21:12 15 THE COURT: You didn't use all the time I gave you.

11:21:14 16 MR. SILBERT: I know. I do know that. 

11:21:16 17 THE COURT: So that kind of falls hollow here.

11:21:19 18 MR. SILBERT: Well, that I understand.

11:21:20 19 THE COURT: But Voxer told me they were going to 

11:21:21 20 finish in eight hours the first time around.

11:21:23 21 MR. SILBERT: They did.

11:21:24 22 THE COURT: And the second time they said, well, you 

11:21:25 23 know, if you're going give them any more than that, give them 

11:21:29 24 ten. Well, you kind of went beyond ten, too.

11:21:31 25 MR. SILBERT: Your Honor, I'd like to draw the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:21:33 1 Court's attention to just two sentences in this agreed 

11:21:35 2 instruction. One starts on the third line. It says, "Voxer 

11:21:39 3 has the burden to persuade you that no noninfringing 

11:21:44 4 alternatives existed by a preponderance of the evidence." 

11:21:46 5 So, first of all, it -- although we did introduce 

11:21:50 6 evidence, which I'll get to in a second, it was not incumbent 

11:21:54 7 on Facebook to introduce evidence that there are alternative -- 

11:21:57 8 noninfringing alternatives. Voxer would have had to prove that 

11:22:01 9 they didn't exist, first of all.

11:22:03 10 There was, in fact, a lot of testimony throughout the 

11:22:06 11 trial by multiple witnesses of the existence of live streaming 

11:22:09 12 technologies. There was discussion of people watching concerts 

11:22:13 13 by Madonna on Youtube, et cetera, with millions of viewers, 

11:22:18 14 about RealNetworks. All those --

11:22:19 15 THE COURT: Don't leave out Severe Tire Damage.

11:22:22 16 MR. SILBERT: And Severe Tire Damage. Thank you very 

11:22:25 17 much, Your Honor. So that's point number one that makes this 

11:22:28 18 relevant. And, really, what the jury ought to be considering 

11:22:31 19 for damages, if anything, is the difference, the delta, between 

11:22:37 20 preexisting technologies and what Voxer says its patents cover. 

11:22:42 21 And then the other sentence I point the Court to is 

11:22:45 22 just the next sentence which makes that clear. It says, 

11:22:49 23 "Noninfringing technologies include, not only existing 

11:22:52 24 technologies that do not infringe, but also technologies that 

11:22:57 25 could reasonably have been developed that would not infringe."

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:23:00 1 And so the instruction is directly applicable to the 

11:23:05 2 evidence in the case about preexisting streaming -- live 

11:23:12 3 streaming technologies. We think it is highly relevant and 

11:23:14 4 really an important instruction that the jury needs to have if 

11:23:17 5 they are going to think about damages.

11:23:19 6 THE COURT: Do you have any authority for what you 

11:23:20 7 just said? 

11:23:26 8 MR. SILBERT: Well, Your Honor, I think we could find 

11:23:27 9 it. This was an agreed instruction that we submitted as an 

11:23:33 10 agreed statement of the law. So, respectfully, I don't think 

11:23:40 11 the accuracy of this instruction is in dispute. I think their 

11:23:41 12 argument -- and I don't want to anticipate Mr. Stake, but I 

11:23:47 13 think their argument is going to be we didn't introduce these 

11:23:48 14 particular potential design-arounds that we had talked about in 

11:23:52 15 discovery. And my point is that doesn't matter. We -- it's 

11:23:56 16 not incumbent on us to introduce anything.

11:23:59 17 THE COURT: All right. Mr. Stake?

11:24:00 18 MR. STAKE: Your Honor, I think just two points here. 

11:24:02 19 Voxer's view is that the predicate, you know, the 

11:24:07 20 basis for these has not been -- these purported noninfringing 

11:24:11 21 substitutes has not been presented to Your Honor sufficient to 

11:24:15 22 give this instruction. 

11:24:16 23 And point two is that this would cause -- as a 

11:24:18 24 result, this would cause jury confusion. We didn't hear any 

11:24:23 25 testimony from Facebook's experts opining that there were 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:24:30 1 substitutes for Voxer's technology or that these were 

11:24:34 2 commercially or technologically sufficient to be noninfringing 

11:24:40 3 or to be substitutes. 

11:24:42 4 And, simply, you know, Facebook had the opportunity 

11:24:45 5 to present these views of its experts that it presented in, for 

11:24:49 6 example, the reports that it served, and it elected not to 

11:24:55 7 present these positions. And so it would be a major leap for 

11:25:00 8 the jury to be asked to make some kind of determination on 

11:25:06 9 noninfringing substitutes where there simply aren't -- isn't 

11:25:10 10 sufficient expert testimony to support that or have them go 

11:25:13 11 down that -- that road.

11:25:18 12 THE COURT: Well, I'm not sure I would be arguing it 

11:25:28 13 your way. I'm not sure that I wouldn't be saying it ought to 

11:25:31 14 be in there. Because, if I were on the jury and reading this, 

11:25:37 15 it would cause me to think, from Facebook's point of view, that 

11:25:41 16 maybe they did infringe and now this is an excuse to get out of 

11:25:45 17 it.

11:25:46 18 So, you know, I don't know that your positions are 

11:25:51 19 really where they ought to be. But if that's where we are, 

11:25:57 20 I'll give some thought to it and either include it or not. I'm 

11:26:06 21 not sure it's something that I would really want if I were you, 

11:26:09 22 but I understand your situation. 

11:26:11 23 All right. Now, I know what I'm going to draft on 

11:26:13 24 that. Let me talk to you a little bit about something that is 

11:26:19 25 a little bit different than the way I've done it in the past. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:26:23 1 We went through earlier as we went through this your -- let me 

11:26:43 2 find it -- your summary of contentions. 

11:26:52 3 And, as I said, all I'm going to do with that, or 

11:26:55 4 would do with that, is take out the willfulness references. 

11:27:05 5 But I have not in the past really put in a summary of 

11:27:14 6 contentions, but it's fine to do it. But what is kind of tied 

11:27:23 7 to that and what you don't have in here is the stipulated 

11:27:33 8 facts. I usually put the stipulated facts in here because the 

11:27:37 9 jury -- the jury doesn't have them in front of them. I read 

11:27:41 10 them to the jury at the beginning of trial, but I usually put 

11:27:45 11 those in the Court's Charge. 

11:27:49 12 And that, then, would get us into a little bit of a 

11:28:03 13 deal on what we're going to do about how we handle claims 

11:28:15 14 construction, which is kind of interesting here because I 

11:28:17 15 didn't do the claim construction.

11:28:18 16 But normally what I would say, there would be 

11:28:23 17 something to where I would have the claim term. But since 

11:28:28 18 we've got four claim terms that we say plain and ordinary 

11:28:32 19 meaning on and two that we say preamble is limiting on, and 

11:28:38 20 that's not really the way you handled it -- and I don't have a 

11:28:48 21 problem with the way you handled it -- what do we do about 

11:28:54 22 stipulated facts? And do we -- are you comfortable with 

11:28:58 23 leaving it your way on the way you-all have talked about plain 

11:29:01 24 and ordinary meaning and what have you and not putting in 

11:29:04 25 anything else about what claims construction would do? 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:29:11 1 MR. STAKE: Your Honor, one initial comment from 

11:29:13 2 Voxer. Our understanding is that there was just one term that 

11:29:19 3 was addressed in the claim construction order that is still at 

11:29:23 4 issue here in this case. This is the single term. I think 

11:29:27 5 it's "end-to-end connection." That was the only one where 

11:29:30 6 plain and ordinary meaning was decided. The other terms that 

11:29:34 7 were addressed are from other patents that are no longer being 

11:29:37 8 asserted in the case.

11:29:41 9 THE COURT: Well, you're right. It's end-to-end 

11:29:43 10 connection. Well, it seems to me that we -- we don't make any 

11:29:54 11 further reference to that, that you-all are comfortable with 

11:29:59 12 the way you have it. Am I right on that? 

11:30:01 13 MR. STAKE: That's fine, Your Honor.

11:30:02 14 THE COURT: All right. So what do we do about the 

11:30:07 15 other stipulated facts? Do you want a section on that in the 

11:30:18 16 charge or not? I will tell you the reason it's crawled its way 

11:30:24 17 into my charges in patent cases and others is generally the 

11:30:27 18 lawyers tell me that jurors sometimes don't know -- you know, 

11:30:32 19 we tell them they're to consider the evidence and the exhibits 

11:30:35 20 and stipulated facts, and that it's sometimes helpful for them 

11:30:39 21 to know what the stipulated facts are.

11:30:40 22 The stipulated facts in this case, you know, may or 

11:30:49 23 may not be helpful to the jury, may or may not be a big deal. 

11:30:52 24 And it might be helpful to know these corporate things. But I 

11:30:57 25 don't -- I'm not committed to one way or the other. I normally 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

47

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11:31:01 1 do it. If you want it, I'll do it. If you don't want it, I 

11:31:04 2 won't do it.

11:31:05 3 MR. SILBERT: Your Honor, it makes eminent sense as a 

11:31:07 4 suggestion. I'm going to confess that I just hadn't even 

11:31:10 5 thought about it. May I just confer with our team and make a 

11:31:13 6 suggestion? 

11:31:15 7 MR. STAKE: Your Honor, we would be fine with reading 

11:31:18 8 the stipulated facts. They aren't very lengthy. And the only 

11:31:21 9 point here is there may have been a reference to a couple of 

11:31:25 10 patents that are no longer asserted in the stipulated facts. 

11:31:28 11 Let me see.

11:31:29 12 THE COURT: Yeah. We can -- 

11:31:31 13 MR. STONE: In the version I'm looking at, I don't 

11:31:33 14 see any reference to those. I only the see '270 and '557. But 

11:31:36 15 that was the one -- the one note.

11:31:38 16 THE COURT: Well, we would take out any reference to 

11:31:41 17 the -- about the '030 and the '969. There were stipulated 

11:31:46 18 facts on that.

11:31:47 19 MR. SILBERT: That's what my colleagues were saying, 

11:31:49 20 that it was, I guess, an older version that still referred to 

11:31:52 21 the patents that were no longer in the case. But I think, 

11:31:57 22 assuming we delete those references, I don't think we would 

11:32:01 23 object to it. I'm not sure we see a strong need for it, but I 

11:32:04 24 don't think we'd object to it.

11:32:06 25 THE COURT: All right. Then what I'm likely to do is 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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11:32:08 1 take out -- I'll take out anything about claims construction, 

11:32:11 2 and I'll take out the reference to the '030 and the '969. 

11:32:16 3 Now, let me run through couple of other things that I 

11:32:22 4 normally do that you'll see. I generally give a rundown about 

11:32:44 5 determining the credibility and truthfulness of the witnesses. 

11:32:48 6 I say a pretty good amount about that. I tell them a little 

11:32:53 7 bit more about expert witnesses. And so we're going to -- 

11:33:09 8 we'll massage that around a little bit.

11:33:11 9 So here's what we're going to do. If you don't have 

11:33:14 10 anything else right now, we're going to take what we just 

11:33:17 11 discussed, and I'm going to incorporate it into our deal. I'm 

11:33:23 12 going to give it to you to look at. The first one you get will 

11:33:27 13 not be your take-it-or-leave-it, state your objections. It 

11:33:31 14 will be for you to look at, and we'll talk about it one more 

11:33:35 15 time. And if it's all right, fine. If it's not, I'll take up 

11:33:40 16 what your problems are with it, and then I'll go back and 

11:33:43 17 decide what I'm going to do with it. And then I'll bring you 

11:33:46 18 your take-it-or-leave-it and state your objections.

11:33:49 19 MR. SILBERT: Thank you very much, Your Honor. I 

11:33:50 20 could also report that -- and counsel can confirm -- that in 

11:33:55 21 light of the court's ruling this morning regarding willfulness, 

11:33:58 22 I understand that Voxer's prior request for judicial notice is 

11:34:02 23 withdrawn. So I don't think there's any other issues.

11:34:06 24 THE COURT: That true? 

11:34:08 25 MR. STAKE: Confirmed, Your Honor.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

49

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11:34:09 1 THE COURT: All right. Very good. All right. We'll 

11:34:12 2 go to work here.

12:37:41 3 (Recess)

12:37:41 4 (Open court, no jury) 

12:37:41 5 THE COURT: This is the verdict form that picks up 

12:54:57 6 your revisions and puts it in our form. So you can look that 

12:54:59 7 over while we talk about it. 

12:55:14 8 I've distributed to each side a copy of the proposed 

12:55:19 9 charge for discussion purposes. So just because it's an easy 

12:55:29 10 default, I'll start with the plaintiff. Comments? 

12:55:36 11 MR. STAKE: Your Honor, we have gone through a few 

12:55:39 12 what I'd call "nits," just minor changes.

12:55:41 13 THE COURT: There's always that, so run through them 

12:55:45 14 with me.

12:55:46 15 MR. STAKE: Okay. Happy to. On page 7 under Summary 

12:55:55 16 of Contentions.

12:55:59 17 THE COURT: All right.

12:56:04 18 MR. STAKE: In the second to last sentence that 

12:56:06 19 begins "Facebook also argues," after the asserted claims, we 

12:56:12 20 would add "of the '557 patents are invalid."

12:56:16 21 THE COURT: Just a minute. I have to find you. Oh. 

12:56:19 22 In the next-to-the-last paragraph. "Facebook also argues that 

12:56:24 23 the asserted claims of the '557 patent"? That's what you want 

12:56:30 24 in it? 

12:56:30 25 MR. STAKE: Yes, Your Honor.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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12:56:31 1 THE COURT: Any problem from the defendants? 

12:56:34 2 MR. SILBERT: No, Your Honor. And we did compare 

12:56:36 3 notes on these, and I believe everything Mr. Stake is going to 

12:56:39 4 say is something we agreed to.

12:56:41 5 THE COURT: All right. Then I won't come back to 

12:56:43 6 you. But if you hear something that gives you pause, jump up.

12:56:48 7 MR. SILBERT: We'll do that. Thank you.

12:56:50 8 THE COURT: All right. Next, Mr. Stake? 

12:56:52 9 MR. STAKE: Then on the last line of page 7 just 

12:56:55 10 below, where it states "The Voxer patents," we would again just 

12:57:00 11 say "The '557 patent."

12:57:02 12 THE COURT: "The asserted claims of the '557 patent"? 

12:57:08 13 MR. STAKE: Correct.

12:57:10 14 THE COURT: Okay.

12:57:18 15 MR. STAKE: On page 13 under the heading Patent 

12:57:22 16 Invalidity Generally.

12:57:27 17 THE COURT: Yes.

12:57:28 18 MR. STAKE: We have two similar edits where we would 

12:57:32 19 replace "Voxer patents" with "'557 patents" again.

12:57:43 20 '557 patent.

12:57:44 21 THE COURT: No. I'm just looking. So it would be on 

12:57:47 22 the second line. And did you say there were two places that 

12:57:56 23 appears? 

12:57:57 24 MR. STAKE: That's right. In the next sentence.

12:57:59 25 THE COURT: No -- where -- all right. Go ahead.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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12:58:03 1 MR. STAKE: Okay.

12:58:04 2 THE COURT: Because all I've done is correct line 2 

12:58:06 3 right now.

12:58:10 4 MR. STAKE: Pardon me. Let me correct the record. 

12:58:13 5 So line 2 we would leave as is.

12:58:18 6 THE COURT: Oh. The Voxer patents? 

12:58:22 7 MR. STAKE: Under the doctrine of equivalents, we 

12:58:24 8 would leave that as is.

12:58:24 9 THE COURT: No. I'm in Patent Invalidity Generally.

12:58:27 10 MR. STAKE: Okay. In that one, in line 2 of that 

12:58:29 11 section, we would replace "Voxer patents" with "'557 patents".

12:58:33 12 THE COURT: All right. And I thought you told me 

12:58:34 13 there was two places in that paragraph. Am I wrong? 

12:58:37 14 MR. STAKE: Yes. That's right.

12:58:38 15 THE COURT: Okay. Now go to your next one.

12:58:41 16 MR. STAKE: Okay. The next one is in the next 

12:58:43 17 sentence. It should say, "To prove any claim of the '557 

12:58:45 18 patent is invalid."

12:58:54 19 THE COURT: All right. "To prove that any claim of 

12:58:55 20 the '557 patent is invalid." Got it.

12:59:05 21 MR. STAKE: Yes. Thank you. On page 14 under the 

12:59:07 22 heading Patent Invalidity - Obviousness, in the first line we 

12:59:11 23 would again replace "Voxer patents" with "'557 patent".

12:59:22 24 THE COURT: All right.

12:59:28 25 MR. STAKE: And on page 16, which is a few pages into 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

52

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12:59:34 1 Instruction F -- 

12:59:37 2 THE COURT: Yep.

12:59:38 3 MR. STAKE: -- it's before the numbered list 1 to 9, 

12:59:41 4 the top of that page we would replace "Voxer patents" with 

12:59:43 5 "'557 patent".

12:59:53 6 THE COURT: All right.

13:00:02 7 MR. STAKE: In the section on Damages - Introduction, 

13:00:05 8 which is Section I, Facebook had requested a sentence on 

13:00:13 9 interests that Your Honor indicated -- 

13:00:15 10 THE COURT: All right. I put that in the -- in the 

13:00:17 11 verdict form. If you look at that new verdict form, you'll see 

13:00:21 12 under damages, that's where I put that the jury is not to 

13:00:26 13 consider interest. Is it all right to have it in the verdict 

13:00:29 14 form? 

13:00:29 15 MR. SILBERT: Yes.

13:00:30 16 THE COURT: All right.

13:00:30 17 MR. SILBERT: Thank you, Your Honor.

13:00:31 18 THE COURT: Okay.

13:00:36 19 MR. STAKE: Now, on page 22 there's an instruction 

13:00:39 20 Damages - Comparable Agreements. This is a section that the 

13:00:43 21 parties have agreed to eliminate.

13:00:45 22 THE COURT: Okay. No problem.

13:01:01 23 MR. STAKE: And on page 24 under Section P, Damages - 

13:01:08 24 Date of Commencement of Damages, the parties have agreed to 

13:01:13 25 delete the second sentence which begins, "If you find that the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

53

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13:01:18 1 infringed Voxer patent" and ends with "that the infringement 

13:01:21 2 began."

13:01:22 3 THE COURT: All right. So we take that whole 

13:01:23 4 sentence out?

13:01:25 5 MR. STAKE: Correct, Your Honor.

13:01:26 6 THE COURT: So we have the first sentence and then go 

13:01:28 7 right into, "If you find that the infringed Voxer patent was 

13:01:33 8 granted, et cetera, et cetera."

13:01:35 9 MR. STAKE: Correct.

13:01:35 10 THE COURT: Okay.

13:01:37 11 MR. STAKE: That's all that we had. Our 

13:01:39 12 understanding is this is not ...

13:01:40 13 THE COURT: No. But now that we have those little 

13:01:44 14 things taken care, of let me hear do you have any big things 

13:01:49 15 you want to suggest, or do you just -- is there anything we 

13:01:55 16 ought to talk about? Who knows? You might convince me to 

13:01:58 17 change something before you have to make your ...

13:02:01 18 MR. STAKE: Your Honor, no major discussion 

13:02:02 19 warranted, I believe. But we did want to preserve our 

13:02:05 20 objection as to the instruction and damages availability of 

13:02:11 21 noninfringing substitutes for the reasons we gave earlier.

13:02:14 22 THE COURT: Okay. We'll get back to that.

13:02:16 23 All right. Mr. Silbert? 

13:02:18 24 MR. SILBERT: Nothing further, Your Honor. Thank 

13:02:19 25 you.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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13:02:19 1 THE COURT: All right. Then what we're going to do 

13:02:21 2 is I'm going to make these changes. Hopefully it won't take 

13:02:25 3 long. We'll come back, give you the final jury charge, and 

13:02:29 4 then we'll be -- we'll bring in the jury and argue it.

13:02:32 5 Now, have you had a chance to look over that verdict 

13:02:35 6 form, and is -- do you have any additional comments on it or is 

13:02:40 7 it fine? It pretty much incorporated everything you had in 

13:02:44 8 your last one. It just moved it to the way we do things. 

13:02:48 9 And so you'll know, the reason I cut the sentence 

13:02:51 10 that said that the jury foreman should hang on to the verdict 

13:02:56 11 form and bring it to the courtroom, is when I'm told we have a 

13:03:00 12 verdict, I will have a court security officer bring the verdict 

13:03:03 13 form to me and I will look at it to make sure there's not some 

13:03:07 14 clerical error or something in it that would cause me to want 

13:03:10 15 to send it back to them before I notify you. And so, if 

13:03:13 16 there's not, I'm going to send it back to the jury, and then 

13:03:16 17 when the jury comes in, the presiding juror will have it. 

13:03:19 18 So there wasn't anything secretive about why I cut 

13:03:24 19 that line out. It's just I thought, you know, when the court 

13:03:27 20 security officers says, Well, give me the form to show the 

13:03:30 21 judge, the presiding juror might say, No, no. The judge says I 

13:03:33 22 can't give it to you. I'm supposed to bring it in myself. So 

13:03:36 23 that's why I cut it out.

13:03:38 24 MR. STAKE: Your Honor, Sam Stake for Voxer. 

13:03:39 25 There was just one small change that I believe we 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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13:03:42 1 agreed on with Facebook's counsel on page 5 of the verdict 

13:03:46 2 form.

13:03:47 3 THE COURT: All right.

13:03:50 4 MR. STAKE: We would have it just state "Facebook" 

13:03:53 5 rather than "Facebook, Inc. and Instagram LLC."

13:03:58 6 THE COURT: I think that's fine, and that's 

13:04:00 7 consistent with what we've done before. So we'll make that 

13:04:05 8 change.

13:04:05 9 All right? 

13:04:07 10 MR. SILBERT: That's fine.

13:04:08 11 THE COURT: We're good with that. Then we're going 

13:04:10 12 to get this in final form. I'll come in and hear your formal 

13:04:13 13 objections, and then we'll be ready to go.

13:04:17 14 (Recess)

13:18:59 15 (Open court, no jury) 

13:18:59 16 THE COURT: Will you distribute the final charge and 

13:19:02 17 verdict form to the lawyers. 

13:19:05 18 Beginning with the plaintiffs, if there are 

13:19:07 19 objections to the jury charge, you may make them at this time.

13:19:29 20 MR. STAKE: Your Honor same, Sam Stake for Voxer. 

13:19:31 21 Voxer wishes to preserve its objection to instruction 

13:19:36 22 and damages, availability of noninfringing substitutes, for the 

13:19:39 23 reasons we've stated previously. We further wish to preserve 

13:19:45 24 all other objections that we have stated on the record thus 

13:19:49 25 far.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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COURT'S CHARGE

13:19:50 1 THE COURT: Those objections are noted by the court, 

13:19:52 2 and they are overruled. 

13:19:54 3 Any objections from the defendants? 

13:19:57 4 MR. SILBERT: Your Honor, David Silbert for 

13:19:59 5 defendants. 

13:19:59 6 We would preserve any objections previously stated, 

13:20:02 7 but we have no additional objections to state at this time. 

13:20:06 8 THE COURT: Those likewise are noted and overruled.

13:20:08 9 Are you ready for me to read the charge and argue to 

13:20:13 10 the jury? 

13:20:15 11 MR. STONE: Yes, Your Honor.

13:20:16 12 THE COURT: All right. For the plaintiffs, as I said 

13:20:18 13 I'm going to break after your initial argument. How long do 

13:20:22 14 you intend to argue for the initial argument? 

13:20:25 15 MR. STONE: Approximately 40, 45 minutes, Your Honor.

13:20:28 16 THE COURT: All right. Then what we'll do is what I 

13:20:33 17 told you earlier. I'll read the charge to the jury, you'll 

13:20:35 18 make your 45-minute argument, we'll take a brief recess. Then 

13:20:39 19 the defendants will make their argument, and you'll close.

13:20:47 20 MR. STONE: Thank you, Your Honor.

13:20:47 21 THE COURT: All right. Bring in the jury. 

13:22:55 22 (Open court, jury present)

13:22:55 23 COURT'S INSTRUCTIONS TO THE JURY

13:22:55 24 THE COURT: We're now coming to an end and will soon 

13:23:00 25 be putting this case in your hands.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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COURT'S CHARGE

 1 So Members of the jury: It is my duty and 

 2 responsibility to instruct you on the law you are to apply in 

 3 this case. The law contained in these instructions is the only 

 4 law you may follow. It is your duty to follow what I instruct 

 5 you the law is, regardless of any opinion that you might have 

 6 as to what the law ought to be. 

 7 Each of you is going to have your own printed copy of 

 8 these final jury instructions that I am giving you now, so 

 9 there is really no need for you the take notes unless you just 

 10 want to.

 11 If I have given you the impression during the trial 

 12 that I favor either party, you must disregard that impression. 

 13 If I have given you the impression during the trial that I have 

 14 an opinion about the facts of this case, you must disregard 

 15 that impression. You are the sole judges of the facts of this 

 16 case. Other than my instructions to you on the law, you should 

 17 disregard anything I may have said or done during the trial in 

 18 arriving at your verdict. 

 19 You should consider all of the instructions about the 

 20 law as a whole with regard each instruction in light of the 

 21 others, without isolating a particular statement or paragraph.

 22 The testimony of the witnesses and other exhibits 

 23 introduced by the parties constitutes the evidence. The 

 24 statements of lawyers are not evidence; they are only 

 25 arguments. It is important for you to distinguish between the 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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COURT'S CHARGE

 1 arguments of lawyers and the evidence on which those arguments 

 2 rest. What the lawyers say or do is not evidence. You may, 

 3 however, consider their arguments in light of the evidence that 

 4 has been admitted and determine whether the evidence admitted 

 5 in this trial supports the arguments. You must determine the 

 6 facts from all of the testimony that you have heard and the 

 7 other evidence submitted. You are the judges of the facts, but 

 8 in finding those facts, you must apply the law as I instruct 

 9 you.

 10 You are required by law to decide the case in a fair, 

 11 impartial, and unbiased manner, based entirely on the law and 

 12 on the evidence presented to you in the courtroom. You may not 

 13 be influenced by passion, prejudice, or sympathy you might have 

 14 for Voxer or Facebook in arriving at your verdict. 

 15 After the remainder of these instructions, you will 

 16 hear closing arguments from the lawyers. Statements and 

 17 arguments of the lawyers, I remind you, are not evidence, and 

 18 they are not instructions on the law. They are intended only 

 19 to assist the jury in understanding the evidence and the 

 20 parties' contentions. 

 21 A verdict form has been prepared for you. You are to 

 22 take this verdict form with you to the jury room; and when you 

 23 have reached a unanimous decision or agreement as to the 

 24 verdict, you are to have your presiding juror fill in the 

 25 blanks in the verdict form, date it, and sign it.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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COURT'S CHARGE

 1 Answer each question in the verdict form from the 

 2 facts as you find them to be. Do not decide who you think 

 3 should win the case and answer the questions to reach that 

 4 result. Again, your answers and your verdict must be 

 5 unanimous. 

 6 Do not let bias, prejudice, or sympathy play any 

 7 party in your deliberations. A corporation and all other 

 8 persons are equal before the law and must be treated as equals 

 9 in a court of justice. 

 10 In determining the weight to give the testimony of a 

 11 witness, consider whether there was evidence that at some time 

 12 the witness said or did something, or failed to say or do 

 13 something, that was different from the testimony given at the 

 14 trial. 

 15 A simple mistake by a witness does not necessarily 

 16 mean that the witness did not tell the truth as he or she 

 17 remembers it. People may forget some things or remember other 

 18 things inaccurately. If a witness has made a misstatement, 

 19 consider whether that misstatement was an intentional falsehood 

 20 or simply an innocent mistake. The significance of that may 

 21 depend on whether it has to do with an important fact or an 

 22 unimportant detail. 

 23 In any legal action, facts must be proved by a 

 24 required amount of evidence known as the "burden of proof." 

 25 The burden of proof in this case is on Voxer for some issues 

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 1 and on Facebook for other issues. There are two burdens of 

 2 proof that you will apply in this case. One is the 

 3 preponderance of the evidence, and the other is 

 4 clear-and-convincing evidence. 

 5 Voxer has the burden of proving patent infringement 

 6 and damages by a preponderance of the evidence. To establish 

 7 by a preponderance of the evidence means to prove something is 

 8 more likely so than not. It is simply the greater weight of 

 9 the credible evidence. If you find that Voxer has failed to 

 10 prove any element of its claim by a preponderance of the 

 11 evidence, then it may not recover on that claim. 

 12 Facebook has the burden of proving patent invalidity 

 13 by clear-and-convincing evidence. 

 14 When a party has the burden of proving any claim or 

 15 defense by clear-and-convincing evidence, it means that the 

 16 party must present evidence that leaves you with a firm belief 

 17 or conviction that it is highly probable that the factual 

 18 contentions of the claim or defense are true. This is a higher 

 19 standard of proof than proof by a preponderance of the 

 20 evidence, but it does not require proof beyond a reasonable 

 21 doubt. 

 22 The evidence you are to consider consists of the 

 23 testimony of the witnesses, the documents and other exhibits 

 24 admitted into evidence, and any fair inferences and reasonable 

 25 conclusions you can draw from the facts and circumstances that 

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 1 have been proved. 

 2 Generally speaking, there are two types of evidence. 

 3 One is direct evidence, such as the testimony of an eyewitness. 

 4 The other is indirect or circumstantial evidence. 

 5 Circumstantial evidence is evidence that proves a fact from 

 6 which you can logically conclude another fact exists. As a 

 7 general rule, the law makes no distinction between direct and 

 8 circumstantial evidence but simply requires that you find the 

 9 facts from a preponderance of all of the evidence, both direct 

 10 and circumstantial. 

 11 You alone are to determine the questions of 

 12 credibility or truthfulness of the witnesses. In weighing the 

 13 testimony of the witnesses, you may consider the witness's 

 14 manner and demeanor on the witness stand, any feelings or 

 15 interest in the case, or any prejudice or bias about the case 

 16 that the witness may have, and any consistency or inconsistency 

 17 of the witness's testimony considered in the light of the 

 18 circumstances. Has the witness been controlled -- pardon me. 

 19 Has the witness been contradicted by other credible evidence? 

 20 Has the witness made statements at other times and places 

 21 contrary to those made here on the witness stand? You must 

 22 give the testimony of each witness the credibility that you 

 23 think it deserves. 

 24 Even though a witness may be a party to the action 

 25 and, therefore, interested in the outcome, the testimony may be 

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 1 accepted if it is not contradicted by direct evidence or by any 

 2 inference that may be drawn from the evidence, if you believe 

 3 the testimony. 

 4 You are not to decide the case by counting the number 

 5 of witnesses who have testified on the opposing sides. Witness 

 6 testimony is weighed; witnesses are not counted. The test is 

 7 not the relative number of witnesses, but the relative 

 8 convincing force of the evidence. The testimony of a single 

 9 witness is sufficient to prove any fact, even if a greater 

 10 number of witnesses testified to the contrary, if after 

 11 considering all of the other evidence, you believe that 

 12 witness. 

 13 When knowledge of technical subject matter may be 

 14 helpful to the jury, a person who has special training or 

 15 experience in that technical field is permitted to state an 

 16 opinion on those technical matters. However, you are not 

 17 required to accept that opinion. As with any other witness, it 

 18 is up to you to decide whether to rely on it. 

 19 Certain demonstrative exhibits shown to you, such as 

 20 PowerPoint presentations, posters, or models, are illustrations 

 21 of the evidence, but are not themselves evidence. It is the 

 22 party's description, picture, or model used to describe 

 23 something involved in the trial. Your recollection of the 

 24 evidence differs from the demonstrative exhibits -- if your 

 25 recollection of the evidence differs from the demonstrative 

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 1 exhibits, rely on your recollection.

 2 For the purposes of this action only, the parties do 

 3 not contest the following. These are stipulated facts:

 4 (a) This Court has jurisdiction over the parties and 

 5 all claims and defenses in this action.

 6 (b) Voxer is a Delaware corporation with its 

 7 principal place of business at 1999 Bryan Street, Suite 900, 

 8 Dallas, Texas 75201-3140.

 9 (c) Voxer LLC is a Delaware limited liability company 

 10 and the legal owner by assignment of the Asserted Patents. 

 11 Voxer IP LLC is a wholly-owned subsidiary of Voxer, Inc.

 12 (d) Meta Platforms, Inc. f/k/a Facebook, Inc., is a 

 13 Delaware corporation with a principal place of business at 

 14 1601 Willow Road, Menlo Park, California.

 15 (e) Instagram LLC is a limited liability company and 

 16 a wholly-owned subsidiary of Meta Platforms. Inc.

 17 (f) Defendants Meta Platforms, Inc. f/k/a Facebook, 

 18 Inc., and Instagram LLC own and operate the facebook.com and 

 19 instagram.com websites, and make available the Facebook Live 

 20 and Instagram Live services, as well as the Facebook and 

 21 Instagram applications for mobile devices.

 22 (g) The application leading to the '270 Patent was 

 23 filed on May 2nd, 2017 and the '270 Patent was issued on 

 24 November 27th, 2018 by the U.S. Patent Office.

 25 (h) For purposes of this litigation, the parties 

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 1 agree that the '270 patent is entitled to a priority date of no 

 2 earlier than June 28th, 2007.

 3 (i) The application leading to the '557 patent was 

 4 filed on October 16th, 2018, and the '557 patent was issued on 

 5 December 17th, 2019 by the U.S. Patent Office.

 6 (j) For purposes of this litigation, the parties 

 7 agree that the '557 patent is entitled to a priority date of no 

 8 earlier than June 28th, 2007.

 9 (k) On January 7th, 2020, Voxer filed this patent 

 10 infringement action against Defendants. 

 11 As I did at the start of this case, I will now give 

 12 you a summary of each side's contentions in this case. I will 

 13 then provide you with detailed instructions on what each side 

 14 must prove to prevail on each of its contentions. 

 15 As I previously told you, Voxer seeks money damages 

 16 from Facebook for allegedly infringing the Voxer patents by 

 17 making, using, selling, and offering for sale methods that 

 18 Voxer argues are covered by one or more of the asserted claims 

 19 of those patents, which are:

 20 Claims 34, 47, 48, and 51 of the '270 patent; and 

 21 Claims 1 and 9 of the '557 patent. 

 22 Voxer contends that Facebook directly infringes each 

 23 of these claims. Facebook denies that it has infringed any of 

 24 the asserted claims of the Voxer patents. Facebook also argues 

 25 that the asserted claims of the '557 patent are invalid. I 

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 1 will instruct you later as to the ways in which a patent may be 

 2 invalid. 

 3 Your job is to decide whether Facebook has infringed 

 4 the asserted claims of the Voxer patents and whether any of the 

 5 asserted claims of the '557 patent are invalid. If you decide 

 6 that any asserted claim has been infringed and is not invalid, 

 7 you will need then to decide any money damages to be awarded to 

 8 Voxer to compensate it for the infringement. 

 9 Before you can decide many of the issues in this 

 10 case, you'll need to understand the role of the patent claims.

 11 The patent claims are the numbered sentences at the end of each 

 12 patent. The claims define a patent owner's rights under the 

 13 law. The claims are important because it is the words of the 

 14 claims that define what the patent covers. The figures and 

 15 text in the rest of the patent provide a description or 

 16 examples of the invention, and they provide a context for the 

 17 claims; but it is the claims that define the breadth of the 

 18 patent's coverage. 

 19 Therefore, what a patent covers depends, in turn, on 

 20 what each of its claims cover. 

 21 To know what a claim covers, a claim sets forth, in 

 22 words, a set of requirements. Each claim sets forth its 

 23 requirements in a single sentence. The requirements of a claim 

 24 are often referred to as "claim elements" or "claim 

 25 limitations." When a method meets all of the requirements of a 

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 1 claim, in other words, where it meets all of its limitations or 

 2 all of its elements, the claim is said to cover that method; 

 3 and that method is said to fall within the scope of the claim. 

 4 In other words, a claim covers a method where each of the claim 

 5 elements or limitations is present in that method. 

 6 You will first need to understand what each claim 

 7 covers in order to decide whether or not there is infringement 

 8 of that claim and to decide whether or not the claim is 

 9 invalid. The first step is to understand the meaning of the 

 10 words used in the patent claim. 

 11 The law says that it is my role to define the terms 

 12 of the claims, and it is your role to apply my definitions to 

 13 the terms I have construed to the issues that you have been 

 14 asked to decide in this case. 

 15 The beginning portion of a claim, also known as the 

 16 preamble, often uses the word "comprising." The word 

 17 "comprising," when used in the preamble, means "including but 

 18 not limited to" or "containing but not limited to." When 

 19 "comprising" is used in the preamble, if you decide that an 

 20 accused method includes all of the requirements of that claim, 

 21 the claim is infringed. This is true even if the accused 

 22 method contains additional elements. 

 23 You are to use the plain and ordinary meaning of the 

 24 words of the patent claims as understood by a person of 

 25 ordinary skill in the art, which is to say, in the field of 

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 1 technology of the patent at the time of the invention. The 

 2 meaning of the words of the patent claims must be the same when 

 3 deciding both issues of infringement and validity. 

 4 This case involves two types of patent claims: 

 5 independent claims and dependent claims. 

 6 An "independent claim" sets forth all of the 

 7 requirements which must be met in order to cover that claim. 

 8 Thus, it is not necessary to look at any other claim to 

 9 determine what an independent claim covers. In this case, the 

 10 following claims are independent claims: 

 11 Claim 34 of the '270 patent; and Claim 1 of the '557 

 12 patent. 

 13 The remainder of the asserted claims in the Voxer 

 14 Patents are "dependent claims." A dependent claim does not 

 15 itself recite all of the requirements of the claim but refers 

 16 to another claim for some of its requirements. In this way, 

 17 the claim "depends" on another claim. A dependent claim 

 18 incorporates all of the requirements of the claim or claims to 

 19 which it refers. The dependent claim then adds its own 

 20 additional requirements. To determine what a dependent claim 

 21 covers, it is necessary to look at both the dependent claim and 

 22 any other claim or claims to which it refers. A method that 

 23 meets all the requirements of both the dependent claim and the 

 24 claim or claims to which it refers is covered by that dependent 

 25 claim. In this case, the following claims are dependent 

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 1 claims: 

 2 Claims 47, 48, and 51 of the '270 patent; and Claim 9 

 3 of the '557 patent.

 4 The use of the terms "a" or "an" in a claim is a term 

 5 of art, which has a special meaning in the context of a patent 

 6 claim. When used in a claim, the terms "a" or "an" means "one 

 7 or more."

 8 The subsequent use of the definite article "the" or 

 9 "said" in a claim refers back to the same claim term and does 

 10 not change the general plural rule or similarly refers to "one 

 11 or more." 

 12 I will now instruct you on how to decide whether the 

 13 Voxer -- whether or not Voxer has proved that Facebook 

 14 infringed any of the asserted claims of the Voxer Patents. 

 15 Patent law gives the owner of a valid patent the 

 16 right to exclude others from importing, making, using, offering 

 17 to sell, or selling the claimed invention or performing a 

 18 method claimed in the patent within the United States during 

 19 the term of the patent. Any person or business entity that has 

 20 engaged in any of those acts without the patent owner's 

 21 permission infringes the patent. 

 22 In determining infringement, you must compare 

 23 Facebook's accused methods to the asserted claims of the Voxer 

 24 patents infringement. 

 25 There are two types of "direct infringement": (1) 

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 1 "literal infringement" and (2) "infringement under the doctrine 

 2 of equivalents." I will now instruct you on literal 

 3 infringement, and then will provide an instruction on 

 4 infringement under the doctrine of equivalents. 

 5 In order to prove literal infringement of an asserted 

 6 patent claim, Voxer must prove by a preponderance of the 

 7 evidence that Facebook performed within the United States an 

 8 accused method that meets all of the requirements of the 

 9 asserted claim and did so without Voxer's permission. You must 

 10 compare the accused methods with each and every one of the 

 11 requirements of the asserted claim to determine whether all of 

 12 the requirements of that claim are met. 

 13 You must determine, separately for each asserted 

 14 claim, and separately for each accused method, whether or not 

 15 there is infringement. For dependent claims, if you find that 

 16 a claim to which a dependent claim refers is not infringed, 

 17 there cannot be infringement of that dependent claim. On the 

 18 other hand, if you find that an independent claim has been 

 19 infringed, you must still decide, separately, whether the 

 20 accused method meets the additional requirement or requirements 

 21 of any claims that depend from the independent claim to 

 22 determine whether those dependent claims have also been 

 23 infringed. This is because a dependent claim includes all of 

 24 the requirements of any of the claims to which it refers, plus 

 25 additional requirement or requirements of its own. 

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 1 A party can directly infringe a patent without 

 2 knowing of the patent or without knowing that what the party is 

 3 doing is patent infringement. 

 4 If a company makes, uses, sells, or offers to sell 

 5 within the United States a method that does not literally meet 

 6 all of the elements of a claim and thus does not literally 

 7 infringe that claim, there can still be direct infringement if 

 8 that method satisfies the claim elements under the doctrine of 

 9 equivalents. 

 10 Under the doctrine of equivalents, a method infringes 

 11 a claim if the accused method contains elements or steps that 

 12 literally meet or are equivalent to each and every element of 

 13 the claim. You may find that an element or step is equivalent 

 14 to an element of a claim that is not met literally if a person 

 15 having ordinary skill in the field of technology of the patent 

 16 would have considered the differences between them to be 

 17 "insubstantial" or would have found that the element or step: 

 18 (1) performs substantially the same function and (2) works in 

 19 substantially the same way (3) to achieve substantially the 

 20 same result as the element of the claim. 

 21 In order to prove infringement by "equivalents," 

 22 Voxer must prove the equivalency of the element or step of the 

 23 claim element by a preponderance of the evidence. Thus, each 

 24 element of a claim must be met by the accused method either 

 25 literally or under the doctrine of equivalents for you to find 

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 1 infringement. If the accused method is missing an equivalent 

 2 method step to even one method step of the asserted patent 

 3 claim, the accused method cannot infringe under the doctrine of 

 4 equivalents. 

 5 Known interchangeability of the claim element and the 

 6 proposed equivalent is a factor that can support a finding of 

 7 infringement under the doctrine of equivalents. In order for 

 8 the elements or step to be considered interchangeable, the 

 9 claim element must have been known at the time of the alleged 

 10 infringement by a person having ordinary skill in the field of 

 11 technology of the patent. Interchangeability at the present 

 12 time is not sufficient. 

 13 Voxer contends that if you find Facebook does not 

 14 literally infringe the asserted claims, then Facebook infringes 

 15 the asserted claims of the Voxer Patents under the doctrine of 

 16 equivalents. 

 17 I will now instruct you on the rules you must follow 

 18 in deciding whether or not Facebook has proved that the 

 19 asserted claims of the '557 patent are invalid. To prove that 

 20 any claim of the '557 patent is invalid, Facebook must persuade 

 21 you by clear-and-convincing evidence, that is, you must be left 

 22 with a clear conviction that the claim is invalid. Otherwise, 

 23 you must conclude that Facebook has not proved that the claim 

 24 is invalid. 

 25 The '557 patent claims priority to a provisional 

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 1 application filed on October 19th, 2007. For purposes of 

 2 determining the validity of the '557 patent, you may only 

 3 consider prior art that was publicly disclosed before 

 4 October 19th, 2007. 

 5 In order for someone to be entitled to a patent, the 

 6 invention must actually be "new." A patent claim is invalid if 

 7 the claimed invention is not new. If an invention is not new, 

 8 we say that it is "anticipated" by the prior art. 

 9 Anticipation must be determined on a claim-by-claim 

 10 basis. In order to show that a claim is anticipated, Facebook 

 11 must prove by clear-and-convincing evidence that all of the 

 12 requirements of the claim are present in a single piece of 

 13 prior art. You may not find that prior art anticipates a 

 14 patent claim by combining two or more elements of prior art. 

 15 To anticipate the invention, the prior art does not 

 16 have to use the same words as the claim, but all of the 

 17 requirements of the claim must have been disclosed and arranged 

 18 as in the claim. The claim requirements may either be 

 19 disclosed expressly or inherently, that is, necessarily 

 20 implied, such that a person having ordinary skill in the art in 

 21 the technology of the invention, looking at that one reference, 

 22 could make and use the claimed invention. 

 23 If a dependent claim is anticipated by the prior art, 

 24 then the claims from which it depends are necessarily 

 25 anticipated as well. 

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 1 Facebook contends in this case that the asserted 

 2 claims of the '557 patent are invalid as being obvious. 

 3 Even though an invention may not have been 

 4 identically disclosed or described in a single prior art 

 5 reference before it was made by an inventor, the invention may 

 6 have been obvious to a person of ordinary skill in the field of 

 7 technology of the patent at the time the invention was made. 

 8 Facebook may establish that a patent claim is invalid 

 9 by proving, by clear-and-convincing evidence, that the claimed 

 10 invention would have been obvious to persons having ordinary 

 11 skill in the art at the time the invention was made in the 

 12 field of the invention. 

 13 In determining whether a claimed invention is 

 14 obvious, you must consider the level of ordinary skill in the 

 15 field of the invention that someone would have had at the time 

 16 the invention was made, the scope and content of the prior art, 

 17 any differences between the prior art and the claimed 

 18 invention, and, if present, so-called objective evidence or 

 19 secondary considerations, which I will describe shortly. Do 

 20 not use hindsight; consider only what was known at the time of 

 21 the invention. 

 22 Keep in mind that the existence of each and every 

 23 element of the claimed invention in the prior art does not 

 24 necessarily prove obviousness. Most, if not all, inventions 

 25 rely on the building blocks of prior art. 

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 1 In considering whether a claimed invention is 

 2 obvious, you should consider whether, as of the priority date 

 3 of the asserted patents, there was a reason that would have 

 4 prompted a person of ordinary skill in the field to combine the 

 5 known elements in a way that the claimed invention does, taking 

 6 into account such facts as: 

 7 (1) Whether the claimed invention was merely the 

 8 predictable result of using prior art elements according to 

 9 their known function or functions; 

 10 (2) Whether the claimed invention provides an obvious 

 11 solution to a known problem in the relevant field; 

 12 (3) Whether the prior art teaches or suggests the 

 13 desirability of combining elements claimed in the invention; 

 14 (4) Whether the prior art teaches away from combining 

 15 elements in the claimed invention; and 

 16 (5) Whether it would have been obvious to try the 

 17 combinations of elements, such as when there is a design 

 18 incentive or market pressure to solve a problem and there are a 

 19 finite number of identified, predictable solutions. 

 20 To find it rendered the claimed invention obvious, 

 21 you must find that the prior art provided a reasonable 

 22 expectation of success. 

 23 In determining whether the claimed invention was 

 24 obvious, consider each claim separately and consider only what 

 25 was known at the time of the invention. In determining whether 

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 1 the claimed invention was obvious, do not use hindsight. In 

 2 other words, you should not consider what a person of ordinary 

 3 skill in the art would know now or what has been learned from 

 4 the teaching of the '557 patent. In making these assessments, 

 5 you should take into account any objective evidence, sometimes 

 6 called secondary considerations, that may shed light on whether 

 7 or not the claimed invention is obvious. These include: 

 8 (1) Whether the claimed invention was commercially 

 9 successful as a result of the merits of the claimed invention 

 10 (rather than the result of design needs or market-pressure 

 11 advertising or similar activities); 

 12 (2) Whether the claimed invention satisfied a 

 13 long-felt need; 

 14 (3) Whether others had tried and failed to make the 

 15 claimed invention; 

 16 (4) Whether others invented the claimed invention at 

 17 roughly the same time; 

 18 (5) Whether others copied the claimed invention; 

 19 (6) Whether the claimed invention achieved unexpected 

 20 results; 

 21 (7) Whether the claim -- pardon me. (7) Whether 

 22 others in the field praised the claimed invention; 

 23 (8) Whether persons having ordinary skill in the art 

 24 of the invention expressed surprise or disbelief regarding the 

 25 claimed invention; and 

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 1 (9) Whether the inventor proceeded contrary to 

 2 accepted wisdom in the field. 

 3 While these objective indicia must be taken into 

 4 account, you must consider all of the evidence related to 

 5 obviousness before you reach a decision. 

 6 In determining whether the claimed invention was 

 7 obvious, consider each claim separately, but understand that if 

 8 a dependent claim is obvious, then the claims from which it 

 9 depends are necessarily obvious as well. 

 10 In deciding what the level of ordinary skill in the 

 11 field of the invention is, you should consider all of the 

 12 evidence introduced at trial, including but not limited to: (1) 

 13 the levels of education and experience of the inventor and 

 14 other persons actively working in the field; (2) the types of 

 15 problems encountered in the field; (3) prior art solutions to 

 16 those problems; (4) the rapidity with which inventions are 

 17 made; and (5) the sophistication of the technology. 

 18 In considering whether the claimed invention was 

 19 obvious, you must first determine the scope and content of the 

 20 prior art. The scope and content of the prior art for deciding 

 21 whether the invention was obvious includes at least prior art 

 22 in the same field as the claimed invention. It also includes 

 23 prior art from different fields that a person of ordinary skill 

 24 in the art would have considered when trying to solve the 

 25 problem that is addressed by the invention. 

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 1 Where Facebook is relying on prior art that differs 

 2 from the prior art considered by the Patent and Trademark 

 3 Office, you should give that prior art more weight when you are 

 4 considering whether the challenger has carried its burden of 

 5 proving invalidity. 

 6 If you find that Facebook infringed any claim of the 

 7 Voxer patents and that Facebook has not proved that such claim 

 8 is invalid, you must then consider what amount of damages to 

 9 award to Voxer. I will now instruct you on that measure of 

 10 damages. By instructing you on damages, I am not suggesting 

 11 which party should win this case on any issue. If you find 

 12 that Facebook has not infringed any valid claim of the asserted 

 13 patents, then Voxer is not entitled to damages. 

 14 The damages you award must be adequate to compensate 

 15 Voxer for the infringement. They are not meant to punish 

 16 Facebook. 

 17 Voxer has the burden to establish the amount of 

 18 damages by a preponderance of the evidence. In other words, 

 19 you should award only those damages that Voxer establishes that 

 20 are more likely than not it has suffered. While Voxer is not 

 21 required to prove the amount of damages with mathematical 

 22 precision, it must prove them with reasonable certainty. You 

 23 may not award damages that are speculative, damages that are 

 24 only possible, or damages that are based on guesswork. 

 25 In this case, Voxer seeks damages in the form of what 

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 1 it contends to be a reasonable royalty. You must be careful to 

 2 ensure that the award is no more and no less than the value of 

 3 the patented inventions. 

 4 Facebook may also present evidence as to what 

 5 damages, if any, it believes would be due should you find that 

 6 Facebook infringes any valid asserted claim of the asserted 

 7 patents. Facebook's presentation of such evidence should not 

 8 be taken as an indication that Facebook believes that it 

 9 infringes or that the claims of the asserted patent are valid. 

 10 A royalty is a payment made to a patent holder in 

 11 exchange for the right to make, use, or sell the claimed 

 12 invention. A reasonable royalty is the amount of royalty 

 13 payment Voxer and Facebook would have agreed to in a 

 14 hypothetical negotiation taking place at the time immediately 

 15 prior to when the infringement first began. 

 16 In considering this hypothetical negotiation, you 

 17 should focus on what the expectation of Voxer and Facebook 

 18 would have been had they entered into an agreement at that 

 19 time, and had they acted reasonably in their negotiations. 

 20 Unlike in a real-world negotiation, all parties to 

 21 the hypothetical negotiation are presumed to believe that the 

 22 patents are valid and infringed and that both parties were 

 23 willing to enter into an agreement. The reasonable royalty you 

 24 determine must be a royalty that would have resulted from the 

 25 hypothetical negotiation and not simply a royalty either party 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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 1 would have preferred. 

 2 Evidence of things that happened after the 

 3 infringement first began can be considered in evaluating the 

 4 reasonable royalty only to the extent that the evidence aids in 

 5 assessing what royalty would have resulted from a hypothetical 

 6 negotiation just prior to the first infringement. 

 7 A reasonable royalty award must be based on the 

 8 incremental value that the patented invention adds to the 

 9 accused services. When the infringing methods have both 

 10 patented and unpatented features, measuring this value requires 

 11 a determination of the value added by the patented features. 

 12 The ultimate combination of the royalty base and royalty rate 

 13 must reflect the value attributable to the infringing features 

 14 of the Facebook services, and no more. 

 15 Any amount of damages must be based solely on the 

 16 value attributable to the patented invention, as distinct from 

 17 unpatented features of the accused services or other factors 

 18 such as marketing, advertising, or Facebook's size. 

 19 A royalty compensating the patent owner for damages 

 20 must reflect the value attributable to the infringing features 

 21 of the services -- pardon me. Let me restate that.

 22 A royalty compensating the patent owner for damages 

 23 must reflect the value attributable to the infringing features 

 24 of the services, and no more. The process of separating the 

 25 value of the allegedly infringing features from the value of 

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 1 all other features is called apportionment. When the services 

 2 accused of infringement use both patented and unpatented 

 3 methods, your award must be apportioned so that it is based 

 4 only on the value of the patented methods, and no more. 

 5 In determining the amount of a reasonable royalty 

 6 that would have resulted from the hypothetical negotiations 

 7 between Voxer and Facebook, you may consider evidence on any of 

 8 the following factors, in addition to any other evidence 

 9 presented by the parties on the economic value of the patent: 

 10 These factors are: The rates paid by Facebook and 

 11 similar parties in the industry to license other patents 

 12 comparable to the Voxer patents. 

 13 The nature and scope of the license, as exclusive or 

 14 non-exclusive, or as restricted or non-restricted in terms of 

 15 its territory or with respect to whom the services may be sold. 

 16 The commercial relationship between Voxer and 

 17 Facebook, such as whether or not they are competitors in the 

 18 same territory in the same line of business. 

 19 The effect of selling the patented methods in 

 20 promoting other sales of Facebook and the extent of such 

 21 collateral sales. 

 22 The duration of the Voxer patents and the term of the 

 23 license. 

 24 The established profitability of the methods 

 25 performed under the Voxer patents; their commercial success; 

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 1 and their popularity. 

 2 The utility and advantages of the patented inventions 

 3 over the old modes or devices, if any, that had been used for 

 4 achieving similar results. 

 5 The nature of the patented inventions; the character 

 6 of the commercial embodiment of the inventions as owned and 

 7 produced by or for the licensor; and the benefits to those who 

 8 have used the inventions. 

 9 The extent to which Facebook has made use of the 

 10 inventions, and any evidence that shows the value of that use. 

 11 The portion of the profit or of the selling price 

 12 that may be customary in the particular business or in 

 13 comparable businesses that allow for the use of the inventions 

 14 or analogous inventions. 

 15 The portion of the profit that arises from the 

 16 patented inventions themselves, as distinguished from 

 17 unpatented features, such as the manufacturing process, 

 18 business risks, or significant features or improvements added 

 19 by the accused infringer. 

 20 The opinion and testimony of qualified experts. 

 21 The amount that Voxer and Facebook would have agreed 

 22 upon (at the time the infringement began) if both sides had 

 23 been reasonable and voluntarily trying to reach an agreement; 

 24 that is, the amount which a prudent licensee, who desired as a 

 25 business proposition to obtain a license to manufacture and 

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 1 sell a particular article embodying the patented invention, 

 2 would have been willing to pay as a royalty and yet be able to 

 3 make a reasonable profit and which amount would have been 

 4 acceptable by a patentee who was willing to grant a license. 

 5 No one factor is dispositive, and you can and should 

 6 consider the evidence that has been presented to you in this 

 7 case on each of these factors. You may also consider any other 

 8 factors which in your mind would have increased or decreased 

 9 the royalty the alleged infringer would have been willing to 

 10 pay and the patent owner would have been willing to accept, 

 11 acting as normally prudent businesspeople. 

 12 In determining a reasonable royalty, you should also 

 13 take into account whether Facebook could have implemented any 

 14 non-infringing technologies as an alternative to the patented 

 15 invention. These are called non-infringing alternatives. 

 16 Voxer has the burden to persuade you that no non-infringing 

 17 alternative existed by a preponderance of the evidence. 

 18 Non-infringing technologies include not only existing 

 19 technologies that do not infringe, but also technologies that 

 20 could reasonably have been developed and that would not 

 21 infringe. When a party can avoid a patent and replace an 

 22 infringing service with a non-infringing alternative, there is 

 23 little incentive for the party to take a license from the 

 24 patent owner rather than simply avoid the patent by 

 25 implementing a non-infringing alternative. By the same 

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 1 reasoning, if avoiding the patent would be difficult, 

 2 expensive, and time-consuming, the amount the party would be 

 3 willing to pay for a license may be greater. 

 4 A reasonable royalty can be paid either in the form 

 5 of a one-time lump-sum payment or as a "running royalty." 

 6 Either method is designed to compensate the patent holder based 

 7 on the infringer's use of the patented technology. It is up to 

 8 you, based on the evidence, to decide what type of royalty, if 

 9 any, is appropriate in this case. 

 10 Reasonable royalty awards may take the form of a 

 11 lump-sum payment. A lump-sum payment is equal to an amount 

 12 that the alleged infringer would have paid at the time of a 

 13 hypothetical negotiation for a license covering all use of the 

 14 licensed methods, both past and future. When a lump sum is 

 15 paid, the infringer pays a single price for the license 

 16 covering both past and future infringing use. 

 17 Reasonable royalty awards may also take the form of a 

 18 running royalty based on the revenue from or the volume of use 

 19 of licensed methods. A running royalty can be calculated, for 

 20 example, by multiplying a royalty base by a royalty rate. 

 21 In determining the amount of damages, you must 

 22 determine when the damages began. If you find that the 

 23 infringed Voxer patent was granted after the infringing 

 24 activity began, damages should be calculated from the date the 

 25 patent issued. 

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 1 It is now your duty to deliberate and to consult with 

 2 one another in an effort to reach a verdict. Each of you must 

 3 decide the case for yourself, but only after an impartial 

 4 consideration of the evidence with your fellow jurors. During 

 5 your deliberations, do not hesitate to reexamine your own 

 6 opinions and change your mind if you are convinced that you 

 7 were wrong. But do not give up on an honest belief because the 

 8 other jurors think differently, or just to finish the case. 

 9 Remember at all times, you are the judges of the 

 10 facts. You have been allowed to take notes during this trial. 

 11 Any notes that you took during this trial are only aids to 

 12 memory. If your memory differs from your notes, you should 

 13 rely on your memory and not on the notes. The notes are not 

 14 evidence. If you did not take notes, rely on your independent 

 15 recollection of the evidence and do not be unduly influenced by 

 16 the notes of other jurors. Notes are not entitled to greater 

 17 weight than the recollection or impression of each juror about 

 18 the testimony. 

 19 When you go into the jury room to deliberate, you may 

 20 take a copy of this charge, the exhibits that I have admitted 

 21 into evidence, and your notes. You must select a presiding 

 22 juror to guide you in your deliberations and to speak for you 

 23 here in the courtroom. 

 24 During your deliberations, you may not communicate 

 25 any information about this case to anyone by any means. For 

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 1 example, do not talk face-to-face or use any electronic device 

 2 or media, such as the telephone, a cell phone, smartphone, 

 3 tablet or computer, the Internet, any Internet service, any 

 4 text or instant messaging service, any Internet chat room, blog 

 5 or website such as Twitter, LinkedIn, YouTube, Facebook, 

 6 Instagram, TikTok, or Snapchat or the like, or any other way to 

 7 communicate. You may not communicate to anyone any information 

 8 about this case or conduct any research about this case until 

 9 this case is over and I accept your verdict. 

 10 In other words, you cannot talk to anyone on the 

 11 phone, correspond with anyone, or electronically communicate 

 12 with anyone about this case. You can only discuss the case in 

 13 the jury room with your fellow jurors during deliberations. 

 14 Your verdict must be unanimous. After you have 

 15 reached a unanimous verdict, your presiding juror must fill out 

 16 the answers to the written questions on the verdict form and 

 17 sign and date it. Answer each question in the verdict form 

 18 from the facts as you find them. Do not decide who you think 

 19 should win and then answer the questions to reach that result. 

 20 Your answers and your verdict must be unanimous. After you 

 21 have concluded your service and I have discharged you, you are 

 22 not required to talk with anyone about the case. 

 23 If you need to communicate with me during your 

 24 deliberations, your presiding juror should write the inquiry 

 25 and give it to the court security officer. After consulting 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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 1 with the lawyers, I will respond either in writing or by 

 2 meeting with you in the courtroom. Keep in mind, however, that 

 3 you must never disclose to anyone, not even to me, your 

 4 numerical division on any question. 

 5 And there's a place at the bottom for me to fill in 

 6 the date. It will say, Submitted this blank day of September 

 7 22 at blank o'clock p.m., and I will sign it and instruct you 

 8 that you may then proceed to the jury room. 

 9 Now, you will have a verdict form that you must 

 10 follow. Let me say little bit about the verdict form. It 

 11 varies slightly from the verdict form that you have had in your 

 12 notebooks. The form we gave you was to follow along during the 

 13 trial so you would know what you would be looking to answer. 

 14 But during every trial -- it's only television where a trial is 

 15 scripted where it always comes out exactly the way you're 

 16 looking for. So there have been little changes as we've gone 

 17 along, so I've prepared a new verdict form. And when you 

 18 retire to your jury room, Ms. Oakes, my courtroom deputy, will 

 19 give you each a copy of that new verdict form and pick up your 

 20 old verdict form so you won't get confused with what you're ave 

 21 having to answer. 

 22 The verdict form that whoever is elected your 

 23 presiding juror is the one then that should be filled out and 

 24 brought back to me. 

 25 The verdict form will read: In answering the 

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 1 following questions, you are to follow the instructions I have 

 2 given you in the Court's jury charge. Your answers to each 

 3 question must be unanimous. Some of the questions contain 

 4 legal terms that are defined and explained to you in detail in 

 5 the jury charge. You should refer to and consider the jury 

 6 charge as your answer to these questions in the verdict form. 

 7 The asserted patents may be referred to as follows: 

 8 Patent Number 10,142, 270 may be referred to by the 

 9 shorthand term of the '270 patent. 

 10 And Patent Number 10,511,557 may be referred to by 

 11 the shorthand term the '557 patent. 

 12 Then the next page of the jury -- or the verdict form 

 13 reads: We, the jury, unanimously agree to the answers to the 

 14 following questions and return them as our verdict in this 

 15 case. 

 16 Question 1: Infringement. 

 17 Did Voxer Inc. and Voxer IP LLC ("Voxer") prove, by a 

 18 preponderance of the evidence, that Meta Platforms, Inc. 

 19 (formerly known as Facebook, Inc.) and Instagram LLC 

 20 (collectively "Facebook") infringed one or more of the 

 21 following claims of the asserted patents? 

 22 You're instructed to check yes or no for each claim, 

 23 and you're instruct that "yes" is a finding for Voxer and "no" 

 24 is a finding for Facebook. And then there are charts. 

 25 Claims 34, there's a column Facebook Live and another 

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 1 column Instagram Live. And you're given yes and no choices for 

 2 each of those defendants. And the same is true as to Claim 47, 

 3 48, and 51 of the '270 patent. 

 4 Then the '557 patent is listed much the same way. 

 5 There's columns Facebook Live and Instagram Live, and Claim 1, 

 6 places to check either yes or no for each of the defendants, 

 7 and Claim 9 the same. 

 8 And then my instructions are: If you answered "no" 

 9 to all the claims, please proceed to the final page of the 

 10 verdict form. 

 11 If you selected "yes" to any claim of the '557 

 12 patent, please proceed to directly to Question 2. 

 13 If you selected "yes" to any claim of the '270 patent 

 14 and no to all claims -- claims of the '557 patent, please 

 15 proceed to Question 3. 

 16 Question 2 is invalidity. 

 17 Solely with respect to the claims of the '557 patent 

 18 for which you answered "yes" in Question 1, did Facebook prove 

 19 by clear and convincing evidence that one or more of those 

 20 claims of the below listed patents are invalid? 

 21 Check yes or no for each claim that corresponds to a 

 22 "yes" answer in Question 1. "Yes" is a finding for Facebook. 

 23 "No" is a finding for Voxer. 

 24 And it lists the '557 patent, Claim 1 and Claim 9, 

 25 and columns to check either yes or no for each claim. 

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 1 Then my instructions are: If you selected "no" to 

 2 any claim of the '557 patent, or if you found any claim of the 

 3 '270 patent infringed in response to Question 1, please proceed 

 4 to Question 3. 

 5 Otherwise, please proceed to the final page of the 

 6 verdict form. 

 7 Then Question 3 is damages. 

 8 What sum of money, if any, do you find Voxer has 

 9 proved it is entitled to for Facebook and Instagram's 

 10 infringement up through the date of this verdict? Do not 

 11 include any interest on any amount of damages you find. 

 12 And there's blank preceded by a dollar sign, and 

 13 you're to fill that in in dollars and cents. 

 14 Question 4 refers back to Question 3. Does this 

 15 number represent a running royalty or a one-time lump sum? 

 16 Please check one only. 

 17 And it gives you a blank to check "running royalty" 

 18 or and it gives you another blank to check "lump sum." 

 19 And then your instructions are to proceed to the 

 20 final page of the verdict form. 

 21 The final page of the verdict form reads: You have 

 22 now reached the end of the verdict form and should review it to 

 23 ensure it accurately reflects your unanimous determinations. 

 24 The preceding -- the presiding juror should then sign and date 

 25 the verdict form in the spaces below. Once this is done, 

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14:18:54 1 notify the court security officer that reach -- you have 

14:18:57 2 reached a verdict. 

14:18:58 3 And it has a space, Signed this blank day of 

14:19:01 4 September 2022 at blank o'clock blank m., where your presiding 

14:19:06 5 juror will fill in the date and time of your verdict and sign 

14:19:09 6 the verdict form.

14:19:13 7 THE COURT: Those will be the instructions of the 

14:19:15 8 verdict form. And, ladies and gentlemen, at this time we'll 

14:19:17 9 proceed with opening arguments and we'll proceed first with the 

14:19:21 10 opening argument of the plaintiffs.

14:19:28 11 MR. STONE: Thank you, Your Honor. 

14:19:29 12 PLAINTIFF'S CLOSING ARGUMENT

14:19:29 13 MR. STONE: May it please the Court: 

14:19:30 14 Good afternoon, ladies and gentlemen. It's nice to 

14:19:33 15 have a chance to speak directly to you again. My colleague, 

14:19:38 16 Mike Powell, and I look forward to summarizing our case to you 

14:19:42 17 this afternoon. But, before I do that, I just want to thank 

14:19:46 18 you for the time that you've taken away from your lives to be 

14:19:51 19 here. I've seen that you've all been taking notes and paying a 

14:19:54 20 lot of attention to all of the testimony, and I know that we've 

14:19:57 21 given you a lot of information over the course of the last 

14:20:00 22 week. And I just wanted to say thank you again. This matter 

14:20:04 23 is obviously very important to my client Voxer, and so we 

14:20:07 24 certainly appreciate your attention.

14:20:09 25 Now, what I'm going to do is go back over the road 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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14:20:12 1 map that I shared with you during my opening. And, like the 

14:20:16 2 judge said, there's four sources of evidence that are for your 

14:20:20 3 consideration: There's the witness testimony, there's the 

14:20:23 4 exhibits, there's stipulations, and there's certain assumptions 

14:20:28 5 or presumptions that the judge has talked to you about. 

14:20:33 6 And I'm confident that, when you all get together in 

14:20:36 7 the jury room after you've heard our closing arguments and you 

14:20:39 8 reflect on the questions that you've been asked to answer about 

14:20:43 9 whether Facebook and Instagram live infringed the '270 and '557 

14:20:48 10 patents, that you will agree that they do and that Voxer is 

14:20:52 11 entitled to a reasonable royalty as a result. 

14:20:58 12 Now you heard from Mr. Katis about the genesis of his 

14:21:01 13 idea that led to Voxer, the problems that he had with 

14:21:05 14 battlefield radios that led him to pondering about whether or 

14:21:08 15 not there was a better solution; a hybrid technology that could 

14:21:13 16 bridge the gap with between purely live communications, like a 

14:21:16 17 phone call, and purely time-shifted communications like text or 

14:21:20 18 e-mail. This is what Voxer would come to call "live 

14:21:23 19 messaging." 

14:21:25 20 And, to be clear, this wasn't live streaming. You 

14:21:28 21 heard both Mr. Katis and Mr. Ranney testify that their 

14:21:32 22 invention was not live streaming. And you certainly didn't see 

14:21:35 23 the defendants rely on live streaming as prior art. 

14:21:39 24 And you heard how Mr. Katis, after he got out of the 

14:21:42 25 military, hired Mr. Ranney, a networking specialist, to help 

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14:21:47 1 him with the first company that Mr. Katis founded. And you 

14:21:51 2 heard how the two of them pondered the questions that Mr. Katis 

14:21:54 3 had about this new hybrid technology. And you'll recall that 

14:21:58 4 Mr. Ranney, who joined Voxer as its chief technology officer, 

14:22:02 5 spent lots of time with Mr. Katis and the other coinventors at 

14:22:05 6 Voxer white-boarding how they would build their system. 

14:22:09 7 And you heard Mr. Ranney testify that he wanted that 

14:22:12 8 Voxer system to build -- to be scalable, a flexible network 

14:22:17 9 that could easily expand to support the millions of users that 

14:22:22 10 Voxer anticipated having, and ultimately did have, with it's 

14:22:26 11 break-through live messaging technology. 

14:22:29 12 And you heard from the beginning that Voxer had a 

14:22:31 13 patent prosecutor, Jim Rose, on their team to help them 

14:22:35 14 navigate the patent rules so they would have protection for the 

14:22:39 15 ideas that they came up with related to live messages. So that 

14:22:43 16 when they disclosed those ideas, as you heard Mr. Katis said 

14:22:46 17 that he did always when he had meetings with other companies, 

14:22:49 18 those ideas could be protected. And you heard that they did 

14:22:54 19 get patents, many of them, that covered all aspects of the live 

14:22:57 20 messaging technology. You heard that Mr. Katis and Mr. Ranney 

14:23:01 21 are named inventors or more than 150 patents. 

14:23:08 22 And they described the process for you in their 

14:23:10 23 testimony about how it was that they went about getting those 

14:23:11 24 patents, including filing their two provisional patent 

14:23:16 25 applications in 2007. And you heard from Mr. Katis in his 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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14:23:19 1 testimony about what that first provisional disclosed, to do 

14:23:23 2 for voice and video communications what e-mail, instant 

14:23:26 3 messaging and devices like the Blackberry have done for written 

14:23:30 4 correspondence. And he also testified that users could send 

14:23:35 5 quick voice and video messages at the click of a button to any 

14:23:38 6 number of users, without necessarily interrupting others' 

14:23:42 7 conversations or waiting for acknowledgment. 

14:23:45 8 And in their second provisional filed on 

14:23:47 9 October 19, 2007, you heard Mr. Katis and Mr. Ranney testify 

14:23:53 10 how that described their inventions in more detail. And you 

14:23:56 11 heard the judge's instruction that the Voxer patents are 

14:24:01 12 entitled to a priority date in 2007 and, in particular, that 

14:24:05 13 the '557 patent is entitled to a priority date back to 

14:24:09 14 October 19, 2007. 

14:24:12 15 That's the date of the second provisional. And 

14:24:14 16 Mr. Ranney testified when he was on the stand that some of the 

14:24:17 17 things disclosed in that second provisional, including the 

14:24:20 18 target markets that they had envisioned for live messaging, and 

14:24:25 19 that those could include public and social networks and media 

14:24:28 20 industries. And that he and Mr. Katis envisioned that live 

14:24:32 21 messaging would be a natural for social networks using Voxer's 

14:24:38 22 multiple conversation management system. 

14:24:41 23 Now, you heard Mr. Katis and Mr. Ranney testify about 

14:24:43 24 rolling out their Voxer app for iOS and Android in 2011 -- in 

14:24:51 25 May for iOS and in November for Android. And you heard that, 

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14:24:55 1 at the time they did that, Mr. Ranney testified that the app 

14:25:00 2 did not support video, but from the very beginning, he wrote 

14:25:04 3 that the code for the server side was already there. And that 

14:25:08 4 was not something that was ever challenged by Facebook. 

14:25:12 5 Now to put back in perspective how things were when 

14:25:17 6 Voxer rolled out its app in 2011, Mr. Ranney gave you testimony 

14:25:22 7 about how phones back then couldn't support live video. They 

14:25:25 8 weren't powerful enough to do that. And he also testified that 

14:25:28 9 bandwidth on the networks wasn't fast enough to support live 

14:25:32 10 video. Voxer was ahead of its time, which explains the sheer 

14:25:36 11 number of its patents. And you heard Ms. Lawton say that Voxer 

14:25:40 12 had actually more than 200 patents as a company. Its new live 

14:25:44 13 messaging technology just needed the market to catch up with it 

14:25:48 14 so that it could roll out video. 

14:25:50 15 Now, shortly after the app's release in 2011, you 

14:25:53 16 heard that the Voxer app went viral. You saw that the Voxer 

14:25:57 17 app was often number one in the App Store, even ahead of 

14:26:01 18 Facebook's social networking apps. And in 2012, you heard 

14:26:05 19 Mr. Katis testify that it was number 13 out of all apps in the 

14:26:10 20 App Store. And that by the end of 2012, Voxer had nearly 

14:26:15 21 60 million total users. 

14:26:18 22 Now, this success caught the attention of Facebook, 

14:26:21 23 which in 2011 and 2012, reached out to Voxer on a number of 

14:26:27 24 occasions to discuss the possibility of doing business 

14:26:29 25 together. Again, for perspective, back in 2011, Facebook's 

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14:26:33 1 Messenger app didn't even offer voice. Voxer did, Facebook did 

14:26:39 2 not. 

14:26:40 3 And you heard that there were a series of meetings 

14:26:42 4 between Voxer and Facebook, and you heard how, in all those 

14:26:48 5 meetings, Mr. Katis would describe the origin story for Voxer's 

14:26:52 6 live messaging technology as well as the patents that the 

14:26:55 7 company had sought to protect that, and Mr. Ranney would 

14:26:59 8 explain the technology in more detail. 

14:27:02 9 And you heard Mr. Katis testify that he even told 

14:27:06 10 Mr. Zuckerberg about Voxer's patents. And you heard Mr. Ranney 

14:27:10 11 testify that it was important to Voxer to get those patents 

14:27:14 12 because they were in an industry, telecommunications, with 

14:27:17 13 strong existing patents, and they wanted to make sure that they 

14:27:20 14 had protection for their unique inventions. 

14:27:24 15 Now, you heard about some of the meetings that 

14:27:26 16 occurred between Facebook and Voxer, including the 

14:27:29 17 February 8th, 2012 meeting between Peter Deng, Ben Davenport, 

14:27:37 18 and Mike Schroepfer and Mr. Katis. And internal documents from 

14:27:41 19 Facebook after that meeting showed that Facebook viewed Voxer's 

14:27:44 20 technology very positively. 

14:27:47 21 In Exhibit 810, which is one of the exhibits admitted 

14:27:50 22 into evidence, in an e-mail to Mr. Zuckerberg, Mr. Schroepfer, 

14:27:55 23 Mr. Zoufonoun, and Mr. Davenport, Mr. Deng described Voxer as 

14:27:59 24 having good product sense; that they were long-term thinkers 

14:28:04 25 that wanted to take over the space between phone-to-phone and 

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14:28:06 1 text messaging; that they built good technology. And he 

14:28:11 2 emphasized that they had rebuilt -- they had built and rebuilt 

14:28:16 3 their back end, which you heard from Mr. Ranney meant their 

14:28:19 4 scalable server infrastructure. 

14:28:22 5 And Mr. Deng went on to say that Voxer's systems 

14:28:25 6 scaled well with their hyper growth late last year, referring 

14:28:29 7 to 2011. 

14:28:31 8 Now, on the very same day as that first meeting, 

14:28:35 9 February 8th, 2012, from Zuckerberg replied to Mr. Deng, "I'm 

14:28:40 10 not surprised the founders are smart," he wrote. The product 

14:28:45 11 seems generally well done. It might be worth getting them on 

14:28:48 12 board if the price is reasonable."

14:28:50 13 Now, the very next day, February 9, 2012, Mr. Deng 

14:28:55 14 sent an e-mail to Sam O'Rourke, Amin Zoufonoun, and Ben 

14:29:00 15 Davenport with the subject "Voxer patents." Now, you didn't 

14:29:04 16 see that e-mail, but you heard Mr. Deng's testimony about it 

14:29:08 17 and the fact that this e-mail confirmed that Facebook was aware 

14:29:12 18 of Voxer's patents at the time, which isn't a surprise, since 

14:29:17 19 Mr. Katis told everyone that he met with that that was a key 

14:29:21 20 part of Voxer's business plans, to patent their live messaging 

14:29:25 21 technology. 

14:29:27 22 Now you also heard from Mr. Katis that, at the time 

14:29:30 23 of these meetings, Voxer was seeking funding that valued Voxer 

14:29:35 24 at approximately the $200 million. And internal Facebook 

14:29:39 25 documents confirmed that Facebook was aware of that valuation 

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14:29:42 1 at the time. And you also heard testimony yesterday from 

14:29:46 2 Ms. Lawton that Houlihan Lokey had valued Voxer at around 

14:29:53 3 200-million plus in 2013. 

14:29:56 4 Now you also heard about a meeting that Voxer had 

14:30:01 5 with Peter Deng again and Chris Daniels on March 6th, 2012 to 

14:30:06 6 discuss the possible licensing of Voxer's technology. And you 

14:30:10 7 heard from Mr. Katis that there were many product and 

14:30:13 8 engineering people there who had questions and that the bulk of 

14:30:16 9 the questions were about video uses for the technology. 

14:30:20 10 And Mr. Katis explained to them that he had been 

14:30:23 11 thinking about that for a long time, dating back to the 

14:30:25 12 provisional that you-all saw that mentioned social networks, 

14:30:29 13 and he explained the use cases for live messaging and social 

14:30:34 14 media and social networks. 

14:30:36 15 And you can see here in Mr. Ranney's testimony he 

14:30:39 16 confirmed that there were also lots of questions about video 

14:30:43 17 and, in particular, could the Voxer technology support live 

14:30:45 18 messaging at Facebook's scale. And he told them, yes, it 

14:30:49 19 could, that they had scaled it to the millions of people who 

14:30:52 20 were now using Voxer, and that they just hadn't done it on 

14:30:56 21 phones yet in part because of the technology limitations with 

14:30:59 22 respect to phones then. 

14:31:01 23 Now, mind you, Facebook didn't have voice for 

14:31:03 24 Messenger at this time, and Facebook has brought no witness at 

14:31:08 25 all to contradict any of this testimony that Mr. Ranney and 

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14:31:11 1 Mr. Katis offered. 

14:31:13 2 Now, you also heard Mr. Katis testify about his 

14:31:16 3 conversation that he had with Mr. Daniels as he left that 

14:31:19 4 meeting, and that Mr. Daniels said that Facebook was trying to 

14:31:23 5 decide if Voxer's technology was core and if Voxer was a 

14:31:28 6 competitor. And you heard that Mr. Katis was troubled by 

14:31:32 7 Mr. Daniels' remark because Mr. Katis believed that, if 

14:31:36 8 Facebook determined that Voxer and his technology was core, 

14:31:40 9 then Facebook would not take a license from them and would 

14:31:43 10 instead build their technology in-house. 

14:31:51 11 Now, you'll recall soon after this meeting, Facebook 

14:31:53 12 did reach out to Voxer to say they weren't interested, after 

14:31:57 13 months of productive discussions. Now, what Voxer didn't know 

14:32:00 14 at the time was that Facebook internal documents showed that 

14:32:03 15 Facebook had been having discussions about building a decent 

14:32:06 16 version of Voxer for themselves. And, of course, you heard, 

14:32:09 17 although Voxer did not know that either, that Facebook was 

14:32:12 18 aware of Voxer's patents dating back to the February 9, 2012 

14:32:22 19 e-mail. 

14:32:22 20 Now, in August of 2015, Facebook first introduced 

14:32:25 21 Facebook Live. And you heard testimony from a number of young 

14:32:27 22 engineers who were involved in the roll out of that product, 

14:32:31 23 and none of them had met with Voxer, and several of whom had 

14:32:36 24 never met or even knew the senior Facebook executives that 

14:32:38 25 Voxer had met. 

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14:32:39 1 But you didn't hear from anyone in management who 

14:32:44 2 made the decision to pursue Facebook Live or when that decision 

14:32:46 3 was even made. You certainly didn't hear from the senior folks 

14:32:49 4 who had met with Voxer, like those pictured here, including 

14:32:53 5 Mr. Zuckerberg and Mr. Schroepfer. None of them were here at 

14:32:58 6 all. And you didn't see any documents that describe why that 

14:33:01 7 decision was made or who made it. 

14:33:03 8 You heard Mr. Zuckerberg was there when The Rock and 

14:33:10 9 Facebook rolled out its first Facebook Live broadcast, but he 

14:33:11 10 wasn't here to explain Facebook's interactions with Voxer. 

14:33:18 11 Now you'll recall that Mr. Katis testified that after 

14:33:22 12 Facebook Live first rolled out, it made him think of that 

14:33:26 13 ominous meeting he had with Chris Daniels, where Mr. Daniels 

14:33:29 14 said that Facebook was considering whether Voxer was a 

14:33:31 15 competitor and whether its technology was core. And you heard 

14:33:35 16 Mr. Katis testify that that was exactly what he was afraid of 

14:33:39 17 when he saw Facebook Live. Facebook had rolled out a product 

14:33:45 18 that to him looked like Voxer's live messaging with video. 

14:33:49 19 So Mr. Katis reached out to Facebook in early 2016, 

14:33:52 20 telling them that he thought that his patents, the Voxer 

14:33:55 21 patents, related to Facebook Live, and he sent materials to 

14:34:00 22 Facebook describing all of those patents at that time, asking 

14:34:03 23 Facebook to engage in licensing discussions. But Facebook 

14:34:07 24 wasn't interested. 

14:34:08 25 So Voxer was compelled to file this lawsuit to 

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14:34:11 1 protect its patent rights, based on that bargain we talked 

14:34:15 2 about that every inventor makes with the government to protect 

14:34:18 3 what Mr. Ranney called "Voxer's unique technology." They 

14:34:23 4 disclosed their patents and, in so doing, Voxer had done the 

14:34:26 5 right thing, affording it the protection of the 20 years that 

14:34:30 6 you get after your inventions are disclosed to the patent 

14:34:33 7 office. 

14:34:34 8 So Voxer brought this case involving those two 

14:34:40 9 patents that you've heard a lot about, the '270 patent and the 

14:34:43 10 '557 patent. And, as you see, the parties don't get that much 

14:34:46 11 time in front of the jury to describe the nature of their case, 

14:34:49 12 so the parties have to make decisions about which patents to 

14:34:53 13 actually assert. And these are the two that Voxer ended up 

14:34:56 14 asserting for trial. 

14:34:57 15 And Voxer submits that the evidence shows that 

14:35:00 16 Facebook did the wrong thing. They used Voxer's patented 

14:35:07 17 technology rather than innovate. And that is all that Voxer 

14:35:10 18 needs to prove, because knowledge is not needed to prove direct 

14:35:12 19 infringement. So, even if Facebook never ever heard of Voxer 

14:35:19 20 or any of its patents, because the evidence shows that each and 

14:35:21 21 every element of the asserted claims is practiced by Facebook 

14:35:27 22 and Instagram Live, they still infringe. 

14:35:29 23 Now, let me walk through that evidence, the evidence 

14:35:31 24 that confirms that. Now, first on the '270 patent, you heard 

14:35:36 25 from Dr. Mitzenmacher each of the elements of each of the 

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14:35:39 1 asserted claim of the '270 patent is found in Facebook and 

14:35:43 2 Instagram Live, and Voxer submits that you can find that 

14:35:46 3 Facebook infringes those two patents based on 

14:35:52 4 Dr. Mitzenmacher's testimony. 

14:35:53 5 Now, what did defendants try to prove? Their key 

14:35:56 6 noninfringement argument since the beginning of the trial has 

14:35:59 7 been that they don't infringe because the '270 patent requires 

14:36:05 8 guaranteed delivery. But you heard Dr. Mitzenmacher testify 

14:36:07 9 that nothing in the claims of the '270 patent requires 

14:36:10 10 guaranteed delivery. And you will have the claims yourselves 

14:36:16 11 in the jury room, and you've been instructed that they're all 

14:36:17 12 to be afforded and interpreted based on their plain and 

14:36:20 13 ordinary meaning. And you'll see that nothing in the plain and 

14:36:24 14 ordinary language requires guaranteed delivery. 

14:36:27 15 And on cross-examination you heard Dr. Bhattacharjee 

14:36:32 16 agree that the claims of the '270 patent do not require 

14:36:35 17 guaranteed delivery. So that argument is dead on arrival. 

14:36:39 18 Now, the defendants had another argument, that 

14:36:42 19 Facebook and Instagram don't infringe because Facebook and 

14:36:51 20 Instagram live don't ascertain the location of a recipient in 

14:36:53 21 response to the receipt of an identifier. 

14:36:55 22 But you heard Dr. Mitzenmacher testify about the 

14:36:58 23 various identifiers that Facebook and Instagram Live use to 

14:37:04 24 limit access to who can view live videos. And you heard 

14:37:07 25 Dr. Bhattacharjee testify that he agreed that this is a role 

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14:37:12 1 that those identifiers played. And you also heard additional 

14:37:15 2 testimony from him during cross-examination that there were 

14:37:20 3 lots of other identifiers that might satisfy this claim 

14:37:23 4 element, duck hunting, for example. 

14:37:26 5 Now, you heard Dr. Mitzenmacher explain just 

14:37:28 6 yesterday how you go from left to right in reading the series 

14:37:31 7 of steps relating to this claim, and that after the recipient 

14:37:40 8 identifier is received, then users -- a URL is provided only to 

14:37:43 9 authorized recipients per the privacy selector, then the 

14:37:47 10 recipient requests a valid URL, and the receipt IP address is 

14:37:52 11 ascertained. He walked you through the chain? 

14:37:55 12 Now, what the defendants are doing is claiming that, 

14:37:57 13 because there are additional steps, those extra steps in the 

14:38:00 14 middle there that are not claimed, there's no infringement. 

14:38:05 15 But that's not the law. As the judge has already instructed 

14:38:08 16 you, additional steps in a method claim cannot be pointed to to 

14:38:14 17 avoid infringement. And Dr. Bhattacharjee was asked about this 

14:38:19 18 during his cross-examination, and he agreed. 

14:38:24 19 So because the noninfringement arguments that the 

14:38:27 20 defendants have advanced are lacking, when you look at the 

14:38:29 21 verdict form and the infringement question directed to the '270 

14:38:35 22 patent, we ask that you please check all of the boxes for each 

14:38:38 23 of the asserted claims for Facebook and Instagram Live. 

14:38:42 24 Now, there is no question relating to the invalidity 

14:38:44 25 of the '270 patent. You've heard that that's been dropped. 

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14:38:50 1 The defendants aren't even arguing this. So you'll see no 

14:38:53 2 question on your verdict form for you about the '270 patent and 

14:39:01 3 invalidity. The '270 patent is valid. 

14:39:03 4 Now on the '577 patent. You heard from 

14:39:06 5 Dr. Mitzenmacher that each of the elements of each of the 

14:39:08 6 asserted claims of the '557 patent are found in Facebook and 

14:39:12 7 Instagram Live. And Voxer submits that you can find that 

14:39:16 8 Facebook infringes those two claims based on Dr. Mitzenmacher's 

14:39:23 9 testimony. 

14:39:23 10 Now, you heard from Dr. Mitzenmacher that Defendant's 

14:39:25 11 only dispute concerning the '557 patent, which we've 

14:39:29 12 highlighted here, was whether the selecting step took place on 

14:39:35 13 the server. But you heard from Dr. Jeffay and from 

14:39:38 14 Dr. Mitzenmacher that, under the plain and ordinary language of 

14:39:40 15 the claim, selecting occurs either on the server or on the 

14:39:44 16 client, the Facebook app. And there's no dispute that 

14:39:51 17 selecting occurs. 

14:39:52 18 And Dr. Jeffay admitted when he was on the stand that 

14:39:54 19 discretion was not required for selecting. Instead, again, the 

14:39:58 20 only question was whether or not one of the two or more 

14:40:03 21 degraded versions was selected. And he also admitted that the 

14:40:06 22 version was transmitted from the server to the client, just as 

14:40:13 23 you see in Exhibit P-14 on the right-hand side with the arrow 

14:40:16 24 sending the degraded version from the CDN to the player. 

14:40:23 25 Now, you also heard Dr. Jeffay admit that, in 

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14:40:26 1 previous sworn testimony, he declared under oath that the 

14:40:30 2 selecting step in the '557 patent could take place at the 

14:40:34 3 client and, in so doing, he was acknowledging that the argument 

14:40:37 4 Dr. Mitzenmacher made was correct. 

14:40:41 5 So when you look at the verdict form and the 

14:40:43 6 infringement question directed to the '557 patent, we ask that 

14:40:46 7 you please check all of the boxes "yes" for Claims 1 and 9 for 

14:40:52 8 Facebook and Instagram Live. 

14:40:58 9 So, lastly, I want to talk about the other side's 

14:41:00 10 invalidity for the '557 patent based on the Seckin patent 

14:41:03 11 application. 

14:41:04 12 And you'll recall again from the judge's instructions 

14:41:06 13 that there are four sources of evidence, and one of them is 

14:41:11 14 applicable presumptions. And, as you might remember from the 

14:41:14 15 patent video, patents are entitled to a presumption of validity 

14:41:19 16 because patents that issue have already been through the patent 

14:41:22 17 office. And, like you heard in the video that the judge showed 

14:41:27 18 you, the patent office works hard to evaluate patents and does 

14:41:31 19 a good job making sure that patents that issue should issue. 

14:41:37 20 And you heard from the judge's instructions that 

14:41:39 21 Facebook has the burden of proving invalidity by clear and 

14:41:42 22 convincing evidence, meaning that Facebook must present 

14:41:46 23 evidence that leaves you with a firm belief or conviction that 

14:41:50 24 it is highly probable that the factual contentions of the claim 

14:41:55 25 or defense are true. And Voxer submits that Facebook cannot 

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14:41:59 1 meet this heightened burden, and if you have any lingering 

14:42:02 2 doubts, the presumption must stand. 

14:42:07 3 Now, you heard Dr. Jeffay testify about the Seckin 

14:42:09 4 patent application, and on cross he said he didn't consider 

14:42:13 5 whether or not it had actually matured into a patent. And then 

14:42:17 6 you heard Dr. Mitzenmacher yesterday say that it had not, and 

14:42:21 7 that was actually something relevant to consider about how 

14:42:24 8 strong this prior art was. 

14:42:26 9 And you heard Dr. Mitzenmacher explain that Seckin 

14:42:32 10 does not invalidate the '557 patent because, unlike the video 

14:42:37 11 message service infrastructure required by that patent, 

14:42:41 12 Seckin's patent was only a one-way broadcast video message 

14:42:45 13 service. It was not bidirectional like live messaging, Voxer's 

14:42:50 14 invention, requires. By contrast, you did hear 

14:42:55 15 Dr. Mitzenmacher testify that the '557 patent does disclose 

14:43:02 16 bidirectional messaging, which is required. 

14:43:05 17 Now, Dr. Jeffay did not dispute that Seckin's end 

14:43:09 18 users cannot send messages to each other and acknowledged, in 

14:43:15 19 essence, that it was unidirectional. And based on that, Voxer 

14:43:19 20 submits that it doesn't invalidate the '557 patent. 

14:43:23 21 Now, finally with respect to Claim 9, you heard from 

14:43:27 22 Dr. Mitzenmacher that Seckin additionally fails to meet this 

14:43:31 23 element because it requires a second real-time streaming 

14:43:34 24 protocol. And that's another reason for you to reject the 

14:43:39 25 invalidity argument advanced by Facebook. 

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14:43:42 1 So, because Defendants have not met the burden of 

14:43:46 2 clear and convincing evidence on this point, they cannot 

14:43:49 3 overcome the presumption that the '557 patent is valid. And we 

14:43:54 4 would ask you to check the boxes "no" on the verdict form 

14:43:57 5 relating to the '557 patent invalidity question. 

14:44:01 6 And now I'm going to turn over the mic to my 

14:44:04 7 colleague, Mike Powell, who will be addressing damages and our 

14:44:07 8 rebuttal case. And since this will be the last time that I get 

14:44:11 9 to address you directly, I just want to say thank you again for 

14:44:14 10 your time. 

14:44:30 11 MR. POWELL: Thank you, Robert. 

14:44:31 12 May it please the Court: 

14:44:32 13 Good afternoon. You know, today is a special day for 

14:44:37 14 me. Not only do I get the pleasure of presenting closing 

14:44:41 15 arguments to you today, but it's also my 25th wedding 

14:44:44 16 anniversary to my beautiful wife, who also happens to be a 

14:44:48 17 lawyer. We have so much to be thankful for, especially our 

14:44:52 18 three healthy and happy children. 

14:44:53 19 You know, I have sure enjoyed being with you-all here 

14:44:56 20 in Austin this last week and a little bit extra, and I want you 

14:45:00 21 to know before I begin that I, my client Voxer, the whole team 

14:45:05 22 here, we've been looking forward to this day for a long, long 

14:45:10 23 time. So we appreciate your attention. 

14:45:19 24 Now, you'll recall Dr. Ratliff's testimony a few days 

14:45:22 25 ago, and it's my pleasure to summarize Voxer's damages claims 

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14:45:26 1 for infringement of the '270 and the '557 patents. And, 

14:45:32 2 frankly, Facebook and Instagram have made my job a lot easier 

14:45:35 3 by electing not to present their own damages expert, an 

14:45:38 4 opinion. 

14:45:39 5 Instead, they chose to bring Ms. Kathy Lawton here 

14:45:42 6 yesterday simply to nitpick and criticize Mr. Ratliff for not 

14:45:47 7 doing things her way. But, of course, there was no "her way" 

14:45:50 8 because she had to admit on cross-examination that she had not 

14:45:57 9 given us a reasonable royalty. She had not done the work to 

14:46:01 10 explain the hypothetical negotiation that is required by the 

14:46:07 11 law as you were instructed just a few moments ago. 

14:46:12 12 Now, you will recall Mr. Ratliff explaining the 

14:46:16 13 Georgia-Pacific factors, and Your Honor instructed you on the 

14:46:22 14 Georgia-Pacific factors just a few moments ago. Now, you have 

14:46:26 15 to have the facts of the case fit within the Georgia-Pacific

14:46:32 16 factors. And Mr. Ratliff gave you five groups of those 

14:46:37 17 factors, and he walked you through each group identifying for 

14:46:41 18 you the evidence which either supported Voxer's case or not. 

14:46:49 19 Now, recall the judge did instruct you that damages 

14:46:52 20 must be apportioned. Dr. Mitzenmacher and Mr. Ratliff did 

14:46:57 21 their required apportionment, but neither of Drs. Jeffay or 

14:47:04 22 Bhattacharjee, nor Ms. Lawton, did any apportionment 

14:47:06 23 whatsoever. 

14:47:07 24 And you know who else did not do apportionment: 

14:47:11 25 Houlihan Lokey. You'll recall Houlihan Lokey was presented by 

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14:47:15 1 the defense as another example of a licensing transaction that 

14:47:19 2 you could consider in evaluating damages. 

14:47:22 3 Now, you see while Ms. Lawton talked about the 

14:47:24 4 Houlihan Lokey report, that report was prepared in June of 

14:47:28 5 2017. The hypothetical negotiation, as you have been 

14:47:33 6 instructed by the judge, is deemed to take place in 

14:47:35 7 November 2018, over a year later. 

14:47:40 8 So, as we will see, while the Houlihan Lokey report 

14:47:45 9 had patent license valuations that overwhelmingly support 

14:47:49 10 Mr. Ratliff, had Voxer tried to present those valuations to 

14:47:53 11 you, the jury, you can be sure that Facebook would have been 

14:47:56 12 objecting. They would have objected that those valuations are 

14:47:59 13 irrelevant and should not be considered because they do not 

14:48:02 14 reflect the hypothetical negotiation. But you don't hear Voxer 

14:48:09 15 object. Voxer believes you, the jury, should have all the 

14:48:12 16 evidence to consider. 

14:48:15 17 But since Facebook and Ms. Lawton opened that door in 

14:48:18 18 trial, those Houlihan Lokey valuations, the relevant ones, the 

14:48:22 19 ones that are based on a running royalty of the type that the 

14:48:26 20 evidence urges you to use here, those applied to -- the ones 

14:48:32 21 that were apples to apples, if you were. You may recall I used 

14:48:35 22 that terminology. Well, those show a different story. Those 

14:48:39 23 Houlihan Lokey valuations offer bookends to the reasonable 

14:48:43 24 royalty range in this case and put Mr. Ratliff's reasonable 

14:48:46 25 royalty smack dab in the middle. 

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14:48:50 1 Now, you'll recall this stream -- slide from 

14:48:54 2 Mr. Ratliff's examination. And there was additional testimony 

14:48:58 3 and evidence admitted during trial that can also be considered 

14:49:02 4 as what I might call a "gut check," evidence of Facebook's own 

14:49:06 5 internal actual revenue data and its projections. Now, 

14:49:10 6 remember, the Facebook in-stream flywheel that Mr. Ratliff took 

14:49:14 7 time to discuss with you, nobody can dispute -- nobody can 

14:49:20 8 dispute time on Facebook's services means more money to 

14:49:24 9 Facebook. That was why Mr. Ratliff walked you through the 

14:49:28 10 in-stream flywheel.

14:49:30 11 And Ms. Lawton had to agree with me on that point in 

14:49:33 12 cross-examination. Of course, Ms. Lawton also said it is not a 

14:49:37 13 concern that Houlihan Lokey had relied on projections instead 

14:49:41 14 of Facebook's actual revenue information. 

14:49:46 15 Well, Mr. Ratliff told you last week that he did look 

14:49:49 16 at Facebook's specifically tracked Facebook Live revenues. 

14:49:54 17 They were over 1.4 billion. That is the number Facebook's 

14:49:58 18 Mr. Poffenberger said he did not have handy during my 

14:50:02 19 cross-examination when he said he had only looked at numbers 

14:50:05 20 through June of 2021. 

14:50:08 21 And then on cross-examination of Mr. Poffenberger, 

14:50:12 22 despite Facebook's objection, I was able to introduce 

14:50:15 23 Plaintiff's Exhibit P-704. Remember the rocket ship and 

14:50:19 24 Facebook's target of 100 million watch hours which they hit way 

14:50:24 25 ahead of schedule in March 2020 because of the pandemic 

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14:50:28 1 lockdowns. We heard from Mr. Ratliff, and we saw on Facebook's 

14:50:31 2 own words, they protected -- they projected internally to 5X 

14:50:36 3 these numbers by 2023, which is just three short months from 

14:50:41 4 today. 

14:50:43 5 So simple math tells us that 5 times 362 million is 

14:50:48 6 $1.81 billion in revenue specifically tracked to the Facebook 

14:50:51 7 Live accused functionality. 

14:50:55 8 So when -- so when we use this specifically tracked 

14:51:00 9 revenue using Facebook's own numbers and plug it into 

14:51:03 10 Mr. Ratliff's formula, this time eliminating the downward 

14:51:07 11 adjustment step of technical apportionment, because this is 

14:51:11 12 directly tracked revenue that is directly tied to the accused 

14:51:15 13 Facebook Live functionality, and also eliminating the upward 

14:51:18 14 adjustment for the was live derivative sales, since that is not 

14:51:22 15 relevant if we are talking about specifically tracked revenue, 

14:51:26 16 we get a reasonable royalty of 183 million on the low side 

14:51:30 17 using actual numbers and 234 million on the high side using the 

14:51:35 18 projected numbers. 

14:51:38 19 By the way, ladies and gentlemen, this is precisely 

14:51:41 20 why Mr. Ratliff's reasonable royalty got bigger after several 

14:51:45 21 client application patents were voluntarily withdrawn by Voxer 

14:51:50 22 before trial so that it could focus on the server patents and 

14:51:53 23 have sufficient time with you to make its case. 

14:51:55 24 You see, if Mr. Ratliff adjusted his reasonable 

14:51:58 25 royalty downward to account for the client application patents 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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14:52:02 1 being withdrawn, he had to make an adjustment upward because 

14:52:07 2 this trial was delayed nine months due to scheduling conflicts 

14:52:11 3 at the court. Now, when Mr. Ratliff added in the royalty for 

14:52:16 4 that period of time, the number actually got bigger despite the 

14:52:19 5 reduction in the royalty rate from the client application 

14:52:23 6 patents dropping out of his analysis. 

14:52:28 7 Now, of course, Ms. Lawton denied this, but the 

14:52:30 8 evidence shows Ms. Lawton was simply wrong, which makes sense, 

14:52:34 9 since she didn't bother to consult the book of wisdom she 

14:52:37 10 talked about on this point and her client's corporate 

14:52:39 11 representative, Mr. Poffenberger, refused to look at revenue 

14:52:43 12 past June 2021, more than a year ago now. 

14:52:46 13 So that brings us back full circle. Mr. Ratliff has 

14:52:50 14 offered the only reasonable royalty calculation that meets the 

14:52:53 15 legal requirements you were just instructed on. And in view of 

14:52:58 16 this, ladies and gentlemen, Voxer asks that you find Facebook 

14:53:01 17 and Instagram infringed the '270 and '557 patents; that the 

14:53:06 18 '557 patent is valid; that in response to the question, "What 

14:53:09 19 damages do you find?" please write in "$175 million," and check 

14:53:15 20 the box running royalty since these patents continue until 

14:53:19 21 2028. 

14:53:20 22 Thank you.

14:53:22 23 THE COURT: Ladies and gentlemen, at this time we'll 

14:53:25 24 take a brief recess before we finish the arguments. We'll be 

14:53:28 25 in recess for 15 minutes.

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14:53:30 1 (Jury recessed)

14:54:06 2 THE COURT: This always happens. It doesn't matter 

14:54:08 3 how many eyes go over these things, whether it's all of my 

14:54:11 4 staff and all of you, as I was reading the jury charge and the 

14:54:14 5 verdict form, I found a couple of mistakes and perhaps you do, 

14:54:23 6 too. We will get these corrected in the finals that go to the 

14:54:26 7 jury. 

14:54:27 8 On page 3 of your jury charge in the first line, the 

14:54:31 9 word "party" should be "part." And in part B, the next to last 

14:54:38 10 line of the paragraph, "significant" should have been 

14:54:42 11 "significance." And the verdict form on the last page in the 

14:54:50 12 second line, "accurate" should be "accurately." 

14:54:53 13 So we're going to correct those pages and we'll just 

14:54:56 14 get corrected pages to you instead of doing the whole thing. 

14:55:00 15 And then what will go to the jury will have those done.

14:55:04 16 So at this time we'll be in recess for 15 minutes.

14:55:08 17 (Recess)

15:13:27 18 (Open court, jury present) 

15:13:27 19 THE COURT: Mr. Van Nest, the defendants may present 

15:13:29 20 closing argument.

15:13:30 21 DEFENDANT'S CLOSING ARGUMENT

15:13:30 22 MR. VAN NEST: Thank you, Your Honor, and good 

15:13:31 23 afternoon, ladies and gentlemen. Bob Van Nest here again for 

15:13:34 24 Facebook. 

15:13:35 25 Thank you again for your jury service. You've be 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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DEFENDANT'S CLOSING

15:13:38 1 very attentive group. We've all been noticing the note-taking, 

15:13:42 2 and we appreciate that very much. And I want to begin by 

15:13:45 3 saying, whatever verdict you reach, thank you on behalf of 

15:13:48 4 Facebook for your service as jurors.

15:13:50 5 Now, I want to get right into the evidence. The 

15:13:56 6 testimony of these Facebook engineers -- and they're the ones 

15:14:00 7 who built and maintain Facebook Live and Instagram Live -- was 

15:14:03 8 clear, it was detailed, and it was completely unchallenged by 

15:14:07 9 Voxer and its lawyers.

15:14:09 10 Dave Capra and Abhishek Mathur led the development 

15:14:14 11 team, and they told you where the idea for Facebook Live came 

15:14:17 12 from, how they built the product, and what technology they 

15:14:20 13 used. Nothing was copied from Voxer. The Facebook engineers 

15:14:24 14 did their own work. That was undisputed testimony, not 

15:14:28 15 challenged by the Voxer lawyers. 

15:14:30 16 And the testimony of these engineers also proves 

15:14:34 17 there's no infringement of either one of these patents, and 

15:14:37 18 we're going to focus our discussion this afternoon on 

15:14:40 19 infringement, because that's a really key issue in this case. 

15:14:44 20 You didn't hear much about it in Voxer's opening. 

15:14:47 21 The '270 patent requires using and receiving an 

15:14:52 22 identifier that identifies a recipient of the video and using 

15:14:57 23 that to ascertain a location for delivery of the video. The 

15:15:02 24 Facebook and Instagram Live privacy settings, which is what 

15:15:07 25 they accuse of infringement, only establish who is eligible to 

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DEFENDANT'S CLOSING

15:15:11 1 receive a video, not who is going to receive a copy of one. 

15:15:16 2 It's a broadcast system, not a messaging system.

15:15:20 3 There's no inbox for a Facebook Live video. You 

15:15:25 4 heard that testimony from Mr. Leland. And the location for 

15:15:29 5 delivering the video is not ascertained upon receiving any 

15:15:33 6 privacy setting. It's only known when the user or the user's 

15:15:37 7 device requests the video. It's a pull system. That is 

15:15:42 8 ascertained not based on any identifier, no privacy selector. 

15:15:48 9 The privacy selectors have nothing to do with that. 

15:15:51 10 And the '557 patent isn't infringed either because 

15:15:55 11 the Facebook engineers, they confirmed and it's undisputed now, 

15:16:00 12 that it's the client device -- the phone, your laptop -- not 

15:16:04 13 the Facebook servers, that select the version of the video to 

15:16:08 14 send. They're the ones that make -- the client devices are the 

15:16:13 15 ones that make the all-important selection, and so there's no 

15:16:15 16 infringement of the '557 patent either because the 

15:16:20 17 infrastructure, the Facebook servers, don't make that selection 

15:16:24 18 and so they don't perform that critical step. 

15:16:28 19 And, as I said in the opening, Voxer's technology 

15:16:32 20 just wasn't right for the industry. No one has taken a license 

15:16:35 21 to it whatsoever. Ms. Anderson is going to discuss that aspect 

15:16:41 22 of the evidence once I finish. She's going to talk to you 

15:16:44 23 about the damage claim that Voxer's made and how inconsistent 

15:16:49 24 it is with all of the evidence that you've heard about the 

15:16:52 25 market.

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15:16:52 1 So here's our key points of evidence. They haven't 

15:16:56 2 changed since we started. The Voxer engineers -- excuse me. 

15:17:00 3 The Facebook engineers built Facebook Live. They used their 

15:17:03 4 own technology. The technology is very different, 

15:17:07 5 fundamentally different, from what's in Voxer's patents.

15:17:11 6 Now, Mr. Mathur went through this. They started 

15:17:14 7 Facebook Live, Coding Under the Stars. They developed it 

15:17:19 8 themselves. It took almost a year to build it, of hard, 

15:17:22 9 detailed engineering work. And Mr. Mathur explained where it 

15:17:26 10 came from. Some of it was new code that they wrote, some of it 

15:17:30 11 with was from Facebook's existing video, and some was from 

15:17:33 12 open-source software that existed in the market.

15:17:36 13 Nothing was copied from Voxer. They did their own 

15:17:40 14 independent work. And you heard Mr. Mathur tell you that he 

15:17:44 15 never even heard of Voxer. 

15:17:46 16 "In all of your work on building Facebook Live, did 

15:17:49 17 the subject of Voxer ever come up?" 

15:17:51 18 "No." 

15:17:52 19 "Was there any mention of Voxer patents that you 

15:17:54 20 personally heard of?"

15:17:56 21 "No."

15:17:56 22 Same thing for Mr. Capra. No mention of Voxer, no 

15:18:02 23 use of any Voxer technology.

15:18:04 24 Now, let me briefly touch on this. I'm not sure why 

15:18:10 25 they spent so much time talking about 2012. 2012 has 

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15:18:15 1 absolutely nothing to do with what you guys have been asked to 

15:18:19 2 decide. 2012 was two years before -- three years before the 

15:18:25 3 launch of Facebook Live, and it was five years before either of 

15:18:28 4 these patents was even applied for, and it had nothing to do 

15:18:33 5 with video. They were talking about VoIP, their walkie-talkie 

15:18:39 6 patent, voice over the Internet. 

15:18:41 7 This is the e-mail you saw in the opening. You saw 

15:18:44 8 it again during the course of the case. It confirms that all 

15:18:49 9 these folks were talking about was voice over the Internet. 

15:18:51 10 And the Messenger app that you heard, it's not accused of 

15:18:55 11 infringement. It's a messaging service that Facebook makes 

15:18:57 12 available with voice mail. It's not a video product. It's not 

15:19:01 13 a part of the case. 

15:19:01 14 And this was all confirmed by Mr. Davenport, who 

15:19:06 15 testified by video last week. "What we wanted was the ability 

15:19:09 16 to run on background, which required VoIP status." So the 2012 

15:19:16 17 discussions we heard so much about have nothing to do with what 

15:19:22 18 you are being asked to decide.

15:19:23 19 All right. Let's get right into infringement. The 

15:19:26 20 '270 patent, no infringement. Here's the jury instruction. 

15:19:32 21 This is from page 11 of the instructions that Judge Yeakel read 

15:19:35 22 you, and it just confirms what I told you in the opening.

15:19:38 23 Each and every one of the requirements of the 

15:19:40 24 asserted claim has to be present in the Facebook and Instagram 

15:19:44 25 Live products. Every single element has to be there. That was 

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15:19:48 1 the whole point of the soccer ball and the football. Three out 

15:19:54 2 of four, not good enough; five out of six, not good enough.

15:19:58 3 All right. Here are the elements where we start with 

15:20:01 4 the '270, the elements of Claim 34, and there are two critical 

15:20:04 5 requirements that are not performed by the Facebook servers, 

15:20:07 6 and the evidence on that is essentially undisputed at this 

15:20:11 7 point.

15:20:11 8 The two questions you have to answer on '270 are: 

15:20:15 9 One, are the privacy settings, because that's what they accuse 

15:20:21 10 as the recipient identifier -- are the privacy settings in 

15:20:24 11 Facebook and Instagram Live or Instagram Direct a recipient 

15:20:28 12 identifier that identifies a recipient of the video? 

15:20:31 13 Question 2. Do the Facebook and Instagram Live 

15:20:35 14 ascertain a location to deliver the video in response to 

15:20:39 15 receipt of a recipient identifier? 

15:20:42 16 Now, these are each independent requirements. If the 

15:20:45 17 answer to either one of these is no, there's no infringement. 

15:20:49 18 Either one of these. And, in fact, the answer to both of them 

15:20:53 19 is no, because here's the claim language.

15:20:57 20 The '270 patent requires receiving an identifier 

15:21:01 21 transmitted by the sending device -- that's the person that 

15:21:04 22 wants to broadcast, the broadcaster -- with an identifier 

15:21:10 23 identifying a recipient of a video communication. Here's the 

15:21:13 24 key point. It's not good enough that somebody down the line 

15:21:17 25 that's part of a group or part of the public decides to ask 

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15:21:22 1 for, request, and watch the video. The patent requires that, 

15:21:25 2 when the video is received from the broadcaster, there be some 

15:21:29 3 kind of an identifier, a recipient identifier, that identifies 

15:21:34 4 who is going to receive -- who is going to receive the video.

15:21:40 5 Now, Dr. Bhattacharjee illustrated this in this 

15:21:44 6 animation. This is an illustration of how '270 works. We have 

15:21:48 7 our sending broadcaster on the left. She's going to send, and 

15:21:51 8 she chooses recipients, Sue, Alice, and Mike, and she sends 

15:21:58 9 that video with the recipients -- I'm going to show it again -- 

15:22:01 10 over to the server.

15:22:02 11 When the server gets it, it then determines after 

15:22:06 12 receiving it, what are the addresses? What is the location to 

15:22:11 13 which we're going to deliver the video? And once the addresses 

15:22:14 14 are determined, then the system delivers the video. 

15:22:17 15 That's the point of having a recipient identifier.

15:22:21 16 Now, this is absolutely consistent with what the 

15:22:24 17 patent describes. This is an important passage. It's at 

15:22:29 18 column 22 of the patent. I encourage you guys to read it. 

15:22:33 19 It says: "When a client transmits a message, the message 

15:22:37 20 contains an identifier associated with the target recipient." 

15:22:41 21 This is not an embodiment. This is the only place in the 

15:22:45 22 patent that describes this identifier, this all-important 

15:22:48 23 identifier. This is it. And that's what it says. 

15:22:50 24 So the message contains an identifier associated with 

15:22:53 25 a target recipient. And what happens next? In response, the 

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15:22:57 1 server finds a delivery route to a client associated with the 

15:23:01 2 intended or targeted recipient.

15:23:03 3 Now, let's clear out one red herring right up front. 

15:23:07 4 There is no requirement in Claim 34 of a guaranteed delivery, 

15:23:14 5 because you can never guarantee delivery. And we're not 

15:23:17 6 arguing it because sometimes there are glitches or problems 

15:23:18 7 with delivery. That's not -- no. That's not it, and that's 

15:23:22 8 never a position that we took or that Dr. Bhattacharjee took. 

15:23:27 9 You read the claims in light of the specification. 

15:23:32 10 The point of this patent is to provide a messaging system where 

15:23:38 11 you make your best effort to get something delivered to a 

15:23:40 12 targeted recipient, just like the patent here says.

15:23:43 13 So the point isn't that there's no -- that there's no 

15:23:47 14 guarantee in Facebook Live. The point is there is no recipient 

15:23:50 15 identifier because it's a broadcast system. 

15:23:53 16 Here is what Voxer accuses of being a recipient 

15:23:57 17 identifier. They say the privacy selector there on the left 

15:24:01 18 for Facebook Live and the privacy selector for Instagram Live 

15:24:06 19 are the recipient. They say those are identifying receipts. 

15:24:10 20 But in these systems you now know these do not identify who is 

15:24:15 21 going to receive it. All they do is determine who is eligible. 

15:24:23 22 If it's a public setting, everybody in the world is 

15:24:25 23 eligible. Obviously, they're not all being sent a video. And 

15:24:29 24 if it's a private setting, it's a group of people, but they're 

15:24:30 25 not the recipients until they make a specific request to see 

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15:24:38 1 the video. So these only determine eligibility, they do not 

15:24:40 2 determine a recipient. 

15:24:45 3 Now, here's how Dr. Bhattacharjee described the 

15:24:48 4 system, and the engineers are absolutely consistent with this: 

15:24:51 5 It's a broadcast system that does not use a recipient 

15:24:55 6 identifier. There's our sender. He's going to broadcast a 

15:25:02 7 live soccer game. He sends his -- his broadcast, he sends his 

15:25:06 8 video to the servers. There are privacy selectors, but they 

15:25:11 9 don't determine where it's going to go. They don't determine, 

15:25:14 10 they don't identify a recipient, because this is broadcast. 

15:25:25 11 And in order to receive it, somebody has to see it on their 

15:25:25 12 feed or wherever they see it or whatever notification, and they 

15:25:28 13 have to make a specific request. It's a pull system. 

15:25:31 14 You heard about this HTTP request. Only then -- only 

15:25:36 15 then do the servers know what is the delivery address, because 

15:25:40 16 the servers look at the address provided by the sender -- 

15:25:45 17 excuse me -- by the user and they send it back. 

15:25:55 18 So, again, the privacy settings are not used, as 

15:25:57 19 we'll see in just a minute, to determine a recipient and 

15:25:58 20 they're not used to determine a location. This is the way 

15:26:03 21 Dr. Bhattacharjee described it. 

15:26:05 22 He was asked: "In your opinion, does setting the 

15:26:07 23 privacy to a Facebook Live video to any of these options 

15:26:14 24 identify a recipient?" 

15:26:14 25 "No." 

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15:26:15 1 Why not? Because the privacy selector only serves to 

15:26:19 2 restrict who may view it. In order for the video to be 

15:26:27 3 actually watched, for somebody to receive it, to become a 

15:26:28 4 recipient, an eligible viewer must send a request and pull the 

15:26:31 5 video. And the privacy selector, the privacy settings in 

15:26:35 6 Facebook Live and Instagram Live, tell us nothing about who 

15:26:37 7 does that. 

15:26:42 8 Now, the testimony from the engineers on this was 

15:26:45 9 unequivocal. Here's Mr. Leland. 

15:26:46 10 "Does the privacy selector enable broadcasters to 

15:26:47 11 determine who will ultimately get a copy of a Facebook Live 

15:26:50 12 video? 

15:26:53 13 "No." 

15:26:53 14 "What does it do?" 

15:26:55 15 "It allows the broadcaster to specify if they want to 

15:26:57 16 restrict access to a group, who should the access be limited 

15:27:00 17 to." 

15:27:00 18 Most -- as Mr. Leland testified, most of these are 

15:27:04 19 set public, so the whole world, anybody, online can have it. 

15:27:08 20 Again, we asked him another question: 

15:27:10 21 "Does Facebook allow broadcasters to dictate the 

15:27:13 22 people to whom Facebook will actually send the video?" 

15:27:16 23 "No." 

15:27:16 24 "Why can't broadcasters specify who the video will be 

15:27:21 25 sent to?"

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15:27:22 1 "Facebook does not provide an interface to do that." 

15:27:24 2 That is undisputed, unchallenged testimony that there 

15:27:30 3 is no recipient identifier in the Facebook Live system. That's 

15:27:33 4 what he's saying. 

15:27:34 5 Does Facebook Live have anything like an inbox? 

15:27:38 6 Dr. Mitzenmacher kept talking about e-mails that you get. You 

15:27:41 7 can get an e-mail and not open it. That's not what we're 

15:27:44 8 talking about. Someone can send you an e-mail that you don't 

15:27:53 9 get. That's not what we're talking about. 

15:27:53 10 In Facebook Live and Instagram Live, nothing is sent 

15:27:55 11 until and unless the user device or the user asks for it and 

15:28:00 12 requests it. That is fundamentally different from what the 

15:28:02 13 patent requires. 

15:28:08 14 Now, the same is true from Instagram. Here's 

15:28:12 15 Mr. Stinson. You heard from him last week. 

15:28:13 16 "Which of these settings" -- this is public and 

15:28:15 17 private now for Instagram. 

15:28:16 18 "Which of these settings enables broadcasters to 

15:28:19 19 determine who will request and view their live video?" 

15:28:22 20 "Neither of these settings allow a broadcaster to do 

15:28:24 21 that. To receive a live video, it requires an explicit action 

15:28:28 22 on the part of the viewer which the broadcaster would have no 

15:28:31 23 control over."

15:28:32 24 Again, these are broadcast systems. They are not 

15:28:41 25 messaging systems using identifiers. That's true even if 

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15:28:44 1 you're talking about Instagram Direct. That's the little paper 

15:28:50 2 airplane that was discussed by Dr. Mitzenmacher. 

15:28:56 3 We asked Mr. Stinson, What happens if you're using 

15:28:59 4 Instagram Direct? If you use it, is the live video itself sent 

15:29:04 5 to the user? No, it's not. The live video is not sent. What 

15:29:10 6 is sent at that point is an entry point. The user or the 

15:29:20 7 user's device still has to request it. There's no recipient 

15:29:21 8 identified even in Instagram Direct. 

15:29:23 9 Does the Instagram Direct feature control who 

15:29:26 10 ultimately ends up receiving an Instagram Direct video? No. 

15:29:30 11 It can't control who receives it because it can't control who 

15:29:33 12 will actually tap on it. 

15:29:37 13 There's one other thing that's important about 

15:29:40 14 Instagram Live that's different from Facebook Live. In 

15:29:44 15 Instagram Live, the settings, as you heard from 

15:29:46 16 Dr. Mitzenmacher and everybody else, they're default settings. 

15:29:49 17 They apply to all your content, not just your video. So the 

15:29:53 18 patent requires that the message be associated with the -- that 

15:29:57 19 the identifier be associated with a video message. That is 

15:30:00 20 not -- that never happens on Instagram Live because these are 

15:30:04 21 default settings that apply to everything -- posts, texts, 

15:30:09 22 everything you send -- not just live videos. 

15:30:15 23 Now, the privacy settings aren't equivalent. We may 

15:30:19 24 hear on the rebuttal about equivalents because Dr. Mitzenmacher 

15:30:22 25 talked about it. But they're not equivalents. A privacy 

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15:30:28 1 setting is fundamentally different from this claim recipient 

15:30:30 2 identifier. The patent requires that you will identify those 

15:30:35 3 who will receive the video. That's the function that they're 

15:30:38 4 talking about, and it results in reliable delivery to intended 

15:30:42 5 recipients. 

15:30:44 6 The Facebook privacy settings do not perform that 

15:30:47 7 function, and they don't receive that result. They only define 

15:30:50 8 who is eligible to request it. Eligibility is different from 

15:30:55 9 being a recipient, and it results only in providing access, not 

15:31:05 10 determining a recipient.

15:31:06 11 Now, there's a second question equally important on 

15:31:08 12 '270. And if either one of these is answered in the negative, 

15:31:13 13 there's no infringement. Do Facebook and Instagram Live 

15:31:16 14 ascertain a location used to deliver the video in response to 

15:31:20 15 receipt of the recipient identifier? 

15:31:22 16 We are not talking about an extra step, which is what 

15:31:26 17 Dr. Mitzenmacher wants to talk about. This is a fundamentally 

15:31:30 18 different step and a fundamentally different approach. Let's 

15:31:33 19 look at the claim because we start with the language of the 

15:31:36 20 claim.

15:31:36 21 The claim requires ascertaining the location in 

15:31:41 22 response to receipt of the identifier. So what they're 

15:31:44 23 claiming is that, in response to the privacy setting, the 

15:31:49 24 Facebook and Instagram Live systems determine where to send the 

15:31:56 25 video. And we know that that is not true. The Facebook and 

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15:31:59 1 Instagram Live servers have no idea where to send a video when 

15:32:04 2 they get the privacy setting.

15:32:06 3 Why? Because it's a broadcast system. The message 

15:32:10 4 is broadcast everywhere. It isn't until a user or user's 

15:32:14 5 device makes a specific request from a specific device that 

15:32:20 6 Facebook's servers know where to send it. You heard the 

15:32:22 7 testimony about the fact that your IP address can change, are 

15:32:28 8 you on Wi-Fi, are you on cell, are you in a coffee shop, are 

15:32:31 9 you at home. You move around with your phone or your tablet, 

15:32:33 10 you're on different networks and different IP addresses. 

15:32:37 11 So when the servers receive the privacy setting and 

15:32:41 12 the original video broadcast, they don't know where to send it. 

15:32:44 13 They need to have a request. And this is critical, and the 

15:32:48 14 testimony on this from Mr. Larumbe, who testified last week, 

15:32:52 15 was undisputed. 

15:32:53 16 "Does the CDN" -- the CDN is the Facebook server, the 

15:32:59 17 content deliver network. That's servers.

15:33:01 18 "Does the CDN ever receive any information regarding 

15:33:04 19 where to send the video based on the broadcaster's privacy 

15:33:08 20 settings? 

15:33:09 21 "No, it doesn't."

15:33:09 22 "Do the privacy settings have any connection to the 

15:33:12 23 server at all?"

15:33:13 24 "No. They are completely independent systems." 

15:33:18 25 In other words, it's not an extra step, it's a 

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15:33:21 1 different step that has nothing to do with the privacy 

15:33:23 2 settings. The servers don't know where to send a video until a 

15:33:28 3 user makes a request, and that's not what the patent requires.

15:33:31 4 This is a slide shown last week by Dr. Mitzenmacher 

15:33:38 5 from one of our engineers just confirming that the only way 

15:33:42 6 Facebook Live and Instagram Live ever know where to send a 

15:33:46 7 video is when the user or the user's device makes an HTTP 

15:33:51 8 request that has an IP address in it and they send it back.

15:33:56 9 Dr. Mitzenmacher's on board with this, too. I asked 

15:33:59 10 him on cross: "Based on your review of all this material, you 

15:34:04 11 concluded that Facebook Live and Instagram Live use technology 

15:34:08 12 typically thought of as a pull system, where client devices 

15:34:12 13 make requests to servers which the servers respond to?" 

15:34:16 14 "That's part of the technology. The players will 

15:34:20 15 make requests." 

15:34:21 16 The IP address changes, so the servers wait until 

15:34:27 17 there's a request from your phone or your tablet to receive it.

15:34:35 18 And these things aren't equivalent either. There's a 

15:34:39 19 fundamental difference between ascertaining a location when you 

15:34:42 20 get the privacy setting and only determining the location later 

15:34:48 21 when the user, whoever he or she is, makes a request. It's 

15:34:53 22 done in a different way, it produces a different result, it's 

15:34:56 23 fundamentally different. So there's no equivalence. 

15:34:59 24 And that means, that both of these two issues -- the 

15:35:05 25 evidence shows that on both of these issues, the Facebook 

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15:35:10 1 servers don't perform the step required by Claim 34 and, 

15:35:15 2 therefore, there is no infringement.

15:35:18 3 Voxer has the burden of proving infringement. They 

15:35:21 4 didn't do it. They didn't do it. They didn't show that 

15:35:25 5 there's a user identifier -- a recipient identifier, and they 

15:35:29 6 didn't show that the location to send the video is ascertained 

15:35:33 7 in response to the privacy settings.

15:35:35 8 Let's talk about the '557 patent, and we're going to 

15:35:40 9 get into some detail on that, too, because, again, the only 

15:35:44 10 issue for you as jurors is to resolve this infringement 

15:35:47 11 question. And we'll talk about validity on '557 in a minute.

15:35:51 12 Here are the claims. We start with the claims.

15:35:57 13 This claim claims a method for operating a video 

15:36:02 14 message service infrastructure, and the steps are laid out. 

15:36:07 15 And, yes, Voxer is right: We're only contesting the selecting 

15:36:11 16 step. But it is now established in the evidence that the 

15:36:15 17 selecting step is not performed by the servers. You heard 

15:36:19 18 Voxer's lawyers refer to these as the server patents. These 

15:36:22 19 patents are being read, or attempted to be, on the Facebook 

15:36:27 20 servers. They're all about the servers. 

15:36:30 21 What's the issue on '557? Do the Facebook servers 

15:36:35 22 perform the step of selecting a version of the video based on 

15:36:39 23 an ascertained bandwidth on the network? Is that done by the 

15:36:43 24 servers, or is it done somewhere else? Well, this isn't a hard 

15:36:48 25 one. Let's start with the language of the claim. 

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15:36:55 1 It's a method for operating a video message service 

15:36:58 2 infrastructure. That's what the claim is about. And it 

15:37:01 3 requires that the video message service infrastructure, which 

15:37:04 4 they claim is the server, selects one of the degraded versions 

15:37:07 5 of the video media based on ascertained bandwidth. 

15:37:11 6 This is the patent that talks about selecting a 

15:37:14 7 version based on your Internet bandwidth. You've got great 

15:37:19 8 bandwidth, you can get a great resolution version of the video. 

15:37:22 9 If your bandwidth is terrible, well, you'll have to suffer 

15:37:25 10 something a little fuzzier. We've all been through that.

15:37:28 11 Well, Dr. Mitzenmacher was crystal clear. This is 

15:37:31 12 his drawing that he put up last week, and he's done a labeling 

15:37:34 13 for us. In his view the video message service infrastructure 

15:37:39 14 is limited to the Facebook servers in the orange box. On the 

15:37:43 15 right, the player, that's the client device. That's your 

15:37:46 16 phone, your tablet, your laptop. They are two separate things. 

15:37:51 17 The Facebook -- the video message service 

15:37:54 18 infrastructure, according to Dr. Mitzenmacher, is the Facebook 

15:37:58 19 Live servers, FBLS, right in the middle of the orange box. And 

15:38:04 20 he has the client, which is the player -- that's you or me or 

15:38:09 21 anybody that's going to play the video -- on the right.

15:38:12 22 And you know what? The patent requires that these be 

15:38:16 23 separate things, because one of the claims -- one of the 

15:38:20 24 elements of this very claim requires transmitting the actual 

15:38:25 25 selected version from the video message service infrastructure 

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15:38:29 1 to a recipient device. So the claim requires that they be 

15:38:33 2 separate, that the infrastructure be one thing and that the -- 

15:38:39 3 that the client be another thing. 

15:38:41 4 And so the issue is: Do the servers provide this 

15:38:45 5 selection, or is it done by the client device? Well, again, 

15:38:52 6 the testimony of the engineers from Facebook was absolutely 

15:38:58 7 undisputed on this point. 

15:39:00 8 We asked Mr. Larumbe: "What role does the CDN" -- 

15:39:04 9 that's the Facebook server. "what role does it play in 

15:39:06 10 deciding which version of a video to deliver?"

15:39:09 11 "It doesn't play any role." 

15:39:11 12 The viewer device selects and then specifies the 

15:39:14 13 specific file name. And then the CDN, that's the server, just 

15:39:20 14 returns the file that the viewer device requested.

15:39:23 15 No role at all. They didn't get up and cross-examine 

15:39:28 16 this engineer on anything, let alone this opinion. The only 

15:39:34 17 Thing they established with Mr. Larumbe is he'd never met with 

15:39:37 18 anybody from Voxer. That was the cross-examination. He never 

15:39:41 19 met with anybody from Voxer. Right. That's our point too.

15:39:44 20 Now, why doesn't it play a role? It doesn't play a 

15:39:47 21 role because the servers in Facebook Live aren't even capable 

15:39:50 22 of measuring the bandwidth between themselves and the client 

15:39:55 23 device. So it doesn't even have the information that you need 

15:39:59 24 to make a selection. 

15:40:00 25 We asked Mr. Larumbe: "where is the network 

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15:40:03 1 bandwidth determined? 

15:40:04 2 "The viewer device performs an estimation of the 

15:40:07 3 bandwidth available."

15:40:09 4 Does the CDN -- that's Facebook server; that's what 

15:40:12 5 they're accusing. Does it know the network bandwidth between 

15:40:17 6 itself? No, it doesn't. It's not even capable of making the 

15:40:20 7 selection because it doesn't have the information.

15:40:22 8 Now, why did the Facebook engineers build a different 

15:40:25 9 system? Why did they build a system where the client device 

15:40:29 10 makes it? Mr. Larumbe told you that, too. The benefit of 

15:40:36 11 doing it this way is the viewer device -- your phone, your 

15:40:38 12 laptop, your tablet -- has more information, much more about 

15:40:41 13 itself. It knows its screen resolution ability, the window 

15:40:45 14 size, the network it's on. And that information is in the 

15:40:49 15 viewer device, and the server doesn't have it. 

15:40:53 16 So this idea that the server is participating or 

15:40:57 17 having anything to do is not true. And even Dr. Mitzenmacher 

15:41:01 18 admitted this. On cross-examination he admitted: "After 

15:41:09 19 looking at the Facebook system and the Instagram system and all 

15:41:12 20 the study you did, you said the user client must select a 

15:41:16 21 version from the manifest." And "version" there refers to a 

15:41:20 22 version of the degraded video, exactly what we're talking about 

15:41:24 23 on this patent.

15:41:25 24 "Yes. That's right."

15:41:29 25 What is even their argument? Their argument is, 

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15:41:32 1 well, even though the client selects it, when it requests that 

15:41:37 2 version, the server has to go find it. It has to fetch it. 

15:41:42 3 Remember, you saw that yesterday during his rebuttal testimony. 

15:41:45 4 He's saying the server makes a selection because it fetches 

15:41:49 5 what the client selected. But he admits, "In normal 

15:41:54 6 circumstances, the Facebook server will return the segment 

15:41:58 7 selected by the client device, right?"

15:42:01 8 "Right."

15:42:03 9 It's the server that doesn't have discretion. The 

15:42:05 10 server has to return what the client selected. When you go to 

15:42:08 11 a restaurant and you order a meal, a wait person will bring you 

15:42:14 12 the meal. But you're the one that's selected the meal. They 

15:42:17 13 may have put it together and provided it, but you selected it. 

15:42:20 14 I think the example Dr. Jeffay used was I go to a 

15:42:24 15 truck dealership, and I pick out a Ford F-150 all-electric, I'm 

15:42:29 16 making a selection. The dealer may have to find it, but the 

15:42:32 17 selection is made by the buyer. And Dr. Mitzenmacher is trying 

15:42:36 18 to pull a fast one on all of us when he says the servers 

15:42:39 19 participate in this by pulling up the file. All they do is 

15:42:43 20 fetch or retrieve. They fetch or retrieve the file that's 

15:42:47 21 selected by the client device. 

15:42:51 22 So, again, with respect to '557, Claim 1, it's not 

15:42:59 23 satisfied. This is a server patent. The server has to perform 

15:43:03 24 the step, and it hasn't performed the step. 

15:43:07 25 Now, I want to go back to something that I passed 

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15:43:12 1 over, and I'm going to put it back up here. Let me see if I 

15:43:14 2 can do this. Yeah. You may hear from Voxer, oh, it doesn't 

15:43:17 3 matter where it's done. Bologna. These are server patents. 

15:43:21 4 This claim is about a video service -- a video message service 

15:43:26 5 infrastructure.

15:43:27 6 Dr. Jeffay was asked: "Claim 1 of the patent doesn't 

15:43:31 7 say that the selecting step cannot be performed by a 

15:43:35 8 recipient?" 

15:43:36 9 He testified, "It doesn't say that, but a person of 

15:43:39 10 skill would understand that the selecting step happens inside 

15:43:43 11 the infrastructure," which is what this patent is all about 

15:43:48 12 anyway.

15:43:48 13 So, based on the undisputed testimony of the Facebook 

15:44:03 14 engineers, Claim 1 of the '557 patent is not infringed.

15:44:06 15 Let me make a very important point, and it's actually 

15:44:09 16 at page 11 of your jury instructions. Both with respect to the 

15:44:14 17 '270 and the '557, if you find that the independent claims are 

15:44:20 18 not infringed, it's automatic that the dependent claims are not 

15:44:23 19 infringed. You don't have to work any further.

15:44:26 20 In other words, the law is: If an independent claim 

15:44:29 21 is infringed, any claim that's dependent on that -- excuse me. 

15:44:32 22 If an independent claim is not infringed, any dependent claim 

15:44:38 23 is also not infringed. You'll find that on page 11 of the jury 

15:44:41 24 instructions. 

15:44:41 25 And it's true for both the '270. If Claim 34, which 

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15:44:46 1 I discussed a few minutes ago, is not infringed. The other 

15:44:49 2 claims aren't infringed either. The same thing is true here 

15:44:54 3 with respect to '557.

15:44:56 4 I'll pause a minute just to point out that not even 

15:45:04 5 Mr. Katis thought that Facebook Live infringed his patents. 

15:45:07 6 Remember that back in 2016 after he saw what -- how 

15:45:13 7 Facebook Live worked, he went on the ski trip? He sent an 

15:45:18 8 e-mail to Facebook saying hey, here's my IP. Here's our -- 

15:45:22 9 some of our key patents. And the response he got from Facebook 

15:45:24 10 was, hey, you may have great IP, but all of our properties are 

15:45:30 11 doing something completely different, something completely 

15:45:34 12 different, and we currently have no plans to extend into 

15:45:38 13 different territories, point-blank. They were honest. We are 

15:45:42 14 different from you. And Mr. Katis apparently agreed with that.

15:45:46 15 All good, Stan. Would love to grab lunch again 

15:45:50 16 sometime. 

15:45:50 17 So even Mr. Katis didn't believe there was 

15:45:52 18 infringement. 

15:45:59 19 Now, I'm going to spend a few moments here talking 

15:46:01 20 about the '557 patent, invalidity. But if you find as I think 

15:46:04 21 the evidence shows that the '557 patent is not infringed, then 

15:46:12 22 the verdict form allows you to skip over this issue. You only 

15:46:16 23 get to this issue if you find infringement of the '557 which, 

15:46:20 24 as I said, I don't believe you can because the servers don't 

15:46:24 25 perform this critical step.

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15:46:26 1 But we're going to talk about this because it's on 

15:46:29 2 the verdict form. But, again, you'll notice when you get to it 

15:46:32 3 that you don't have to answer it if you've found 

15:46:34 4 noninfringement of the claim. 

15:46:38 5 So now let's talk about the Seckin patent 

15:46:43 6 publication. Here it is. It's claim DTX249. It turns out 

15:46:49 7 it's got a ribbon on it, too, just like the patents that Voxer 

15:46:53 8 has. That's Ms. Seckin's patent application.

15:46:56 9 And, as you can see, it was filed and published in 

15:47:00 10 December of 2004. Filed and published December of 2004. And, 

15:47:05 11 like the patents, it has claims, it has descriptions, it has 

15:47:10 12 figures. Some are handwritten. But you saw some of it in 

15:47:15 13 Dr. Jeffay's testimony, some of it from Dr. Mitzenmacher. But 

15:47:18 14 there it is.

15:47:19 15 Now, there's certain things about it that are 

15:47:21 16 completely undisputed. It is prior art to the '557. No debate 

15:47:25 17 about that. The parties agree. The patent application 

15:47:30 18 publication qualifies as prior art even though it didn't become 

15:47:33 19 a patent. Everyone agrees with that, including 

15:47:36 20 Dr. Mitzenmacher, as you heard yesterday. No debate about 

15:47:40 21 that. 

15:47:41 22 The patent examiner did not consider the Seckin 

15:47:43 23 publication in connection with Voxer's application. You might 

15:47:50 24 ask how can that be. It's a patent application in the patent 

15:47:53 25 office. Well, these patents have some super high numbers on 

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15:47:56 1 them, right? The patents we're talking about, the '270 and the 

15:48:00 2 '557, they're in 10 million range. So there are millions of 

15:48:07 3 patents, both issued patents and applications. And so it's not 

15:48:10 4 unusual -- it is not unusual for patent examiners, if no one is 

15:48:17 5 pointing out what's there, it's impossible for them to be aware 

15:48:20 6 of everything. 

15:48:21 7 But there's no dispute, because the '557 and every 

15:48:25 8 patent lists on its cover page what has been considered. 

15:48:29 9 There's usually a list of prior art references. And so when 

15:48:33 10 you look at the '557, you will see on the cover page there is 

15:48:37 11 no mention of and no reference to the Seckin patent 

15:48:40 12 application. 

15:48:42 13 And, finally, the fourth thing that we established 

15:48:45 14 with Dr. Mitzenmacher yesterday, what Seckin disclosed is not 

15:48:49 15 limited to the claims. What Seckin discloses is everything 

15:48:55 16 inside, start to finish: all the text, all the figures, the 

15:49:00 17 descriptions, all of that. It's not limited to the claims. 

15:49:04 18 The publication has a lot more in it than the claims.

15:49:09 19 Now, this is very important, and it's one of the 

15:49:14 20 instructions that Judge Yeakel read just a few minutes ago. 

15:49:18 21 It's at page 17 of the jury instructions, page 17. And it says 

15:49:24 22 that, where someone like Facebook is relying on prior art that 

15:49:29 23 differs from the prior art considered by the patent office, you 

15:49:33 24 should give that prior art more weight. Well, that applies to 

15:49:36 25 Seckin. 

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15:49:37 1 In other words, if the patent office already 

15:49:40 2 considered it, as jurors, you're entitled to give it little 

15:49:43 3 weight. If the patent office didn't consider it and you're the 

15:49:46 4 first ones to do so, then the reference is entitled to more 

15:49:50 5 weight.

15:49:50 6 Here's the dates just to prove it up. Seckin 

15:49:58 7 December 2004, no dispute. The earliest priority date for the 

15:50:02 8 Voxer patents is June of 2007. So we're talking about 

15:50:07 9 2 1/2 years. 

15:50:08 10 Now, I think this is a pretty easy one, too, because 

15:50:14 11 there's only one debate. Dr. Mitzenmacher, for all his trying, 

15:50:19 12 only came up with one distinction. There's no debate that this 

15:50:25 13 publication talks about video, it talks about live video, it 

15:50:32 14 talks about live streaming video to client devices on the 

15:50:37 15 right. These colors are kind of hard to see here, but we're 

15:50:40 16 talking about that cloud has video in it. You'll see this is 

15:50:45 17 figure 2 of the patent. You'll have it in the jury room, or 

15:50:48 18 you'll get it on the electronic system. 

15:50:51 19 And it's got live video content streamed through 

15:50:54 20 servers and transcoders where bitrate versions are created. 

15:50:59 21 And, just like in the '557, where there's a selection made by 

15:51:05 22 the servers of which one to use. It discloses every single 

15:51:09 23 element limitation of Claim 1 of the '557 patent. It's all 

15:51:14 24 right there. And you can see it. 

15:51:18 25 You may remember Dr. Jeffay showed us this, which was 

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15:51:24 1 how it works. If you read the descriptions, it's doing exactly 

15:51:28 2 what '557 claims: live content, the transcoder creates 

15:51:33 3 different versions there in the different colors, and the 

15:51:36 4 server decides where to send it.

15:51:38 5 So let's take a look at the scorecard on this one. 

15:51:42 6 He didn't contest any of these elements. The receiving, 

15:51:46 7 generating, selecting, transmitting, all there. All there. 

15:51:50 8 His one beef was, well, wait a minute. Seckin doesn't disclose 

15:51:56 9 multidirectional, bidirectional. Remember he showed you this 

15:52:00 10 figure, and he drew on the figure. This is from the '577.

15:52:05 11 Now, important point: This is not the claims of the 

15:52:07 12 '557. You heard Dr. Mitzenmacher and the Voxer lawyers spend 

15:52:12 13 the whole trial telling you you can't take an embodiment and 

15:52:16 14 force it into the claim. You've got to stick with the claim 

15:52:19 15 language. 

15:52:20 16 The claim language of the '557 has nothing to do with 

15:52:25 17 bidirectional. This is Dr. Mitzenmacher violating his own 

15:52:29 18 ground rules, his own rule repeated over and over by the Voxer 

15:52:32 19 lawyers. You can't take an embodiment. And he admitted on the 

15:52:37 20 stand yesterday this is an embodiment. It is not the claim. 

15:52:42 21 I encourage you as jurors to read the claim. There's 

15:52:45 22 nothing in the claim about bidirectional. You receive, you 

15:52:54 23 create degraded versions, you select a good version, and you 

15:52:57 24 send it to the recipient. 

15:52:58 25 There's no requirement in the claim. And when we're 

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15:53:00 1 looking at invalidity, it's just like infringement in this 

15:53:03 2 respect. You're going to compare the claims to what's 

15:53:08 3 disclosed in Seckin. If Seckin discloses every element, as I 

15:53:12 4 just showed that it does, then it anticipates and renders this 

15:53:19 5 patent invalid. And the only issue that you have to decide on 

15:53:23 6 this one is: Does the claim of '557 require bidirectionality? 

15:53:30 7 No.

15:53:30 8 Here's what Dr. Mitzenmacher showed you. This is the 

15:53:33 9 definition from '557 of what a message from the -- from the 

15:53:37 10 patent. It's an individual unit of communication from one user 

15:53:43 11 to another. It is one-directional. This is the patent 

15:53:47 12 defining what a message is, directly contradicting 

15:53:50 13 Dr. Mitzenmacher. And he knew it. 

15:53:52 14 "We're in agreement that what you highlighted for the 

15:53:54 15 jury, that's a one-way communication, correct?"

15:53:56 16 "Yes. So if -- we can refer to that as a one-way if 

15:54:02 17 you like."

15:54:02 18 The only other issue is Claim 9. And on Claim 9 the 

15:54:09 19 only additional element requires using two protocols, and 

15:54:13 20 Dr. Jeffay, with 30 years of experience, told you it would be 

15:54:18 21 obvious to someone skilled in the art. That's not you or me or 

15:54:23 22 anyone in the courtroom other than someone like Jeffay or 

15:54:27 23 Mitzenmacher, who are experienced people. That's what a person 

15:54:30 24 of skill in the art is. And Dr. Jeffay made very clear that 

15:54:33 25 using one protocol to take the data in and another to send it 

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15:54:37 1 out was no big deal.

15:54:38 2 I'll close with this quote that you heard yesterday. 

15:54:43 3 Maybe it was -- yes. It was yesterday. Ms. Panttaja, one of 

15:54:48 4 the inventors on the Voxer patent, she was on video. 

15:54:52 5 We asked her: "You were a coinventor?" 

15:54:54 6 "It seems to say so." 

15:54:55 7 "Could you take a look at Independent Claim 1?" 

15:54:57 8 She looked at Claim 1. 

15:54:59 9 "Sitting here today, can you tell us what the 

15:55:03 10 advancement of this claim is over the prior art?" What's new? 

15:55:06 11 "No, I can't." 

15:55:09 12 No. They haven't explained it either. They haven't 

15:55:12 13 explained -- other than this bidirectional argument that 

15:55:16 14 Dr. Mitzenmacher is trying to run, they haven't explained what 

15:55:19 15 the '557 does over and above any prior art. 

15:55:23 16 So I'll say thank you. I appreciate your time and 

15:55:25 17 attention. I'm going to turn the floor over to Ms. Anderson, 

15:55:29 18 who is going to talk about -- there's our checkmarks on 

15:55:34 19 invalidity. That's a "yes" not a "no."

15:55:36 20 She's going to talk about this. Voxer's technology 

15:55:40 21 was not right for Facebook or anyone else. Thank you. 

15:55:45 22 MS. ANDERSON: Good afternoon, ladies and gentlemen. 

15:56:12 23 My name Christa Anderson. And on behalf of Facebook 

15:56:16 24 and Instagram, I'd like to thank you again for the time and 

15:56:19 25 attention you've given to this matter over these many days.

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15:56:22 1 As Mr. Van Nest mentioned, I will be addressing the 

15:56:27 2 subject of damages in the last 15 or so minutes of this 

15:56:30 3 presentation for the defendants. But before I dive in, I'd 

15:56:34 4 just like to make an important note. That although I am going 

15:56:38 5 to be discusses damages, it is not because Facebook and 

15:56:42 6 Instagram concede that there is any infringement of any patents 

15:56:46 7 in this case. 

15:56:48 8 So why am I going to be discussing it with you? It's 

15:56:51 9 because this is the last chance we will ever get to talk to you 

15:56:55 10 about the facts in this case, and we want to provide you an 

15:56:58 11 overview of some important evidence we think would be helpful 

15:57:02 12 to you, were you to find infringement. We want to make sure we 

15:57:07 13 give you some overview before you go into your discussions.

15:57:11 14 And, according to the evidence that has been 

15:57:13 15 presented during the course of this trial, we submit that the 

15:57:19 16 strong weight of the evidence clearly supports a finding of 

15:57:23 17 noninfringement or invalidity on the patents in this case.

15:57:26 18 We also believe that the evidence clearly supports a 

15:57:31 19 finding that any reasonable royalty, any damages in the case, 

15:57:35 20 is nowhere near the $174 million running royalty being demanded 

15:57:42 21 by Voxer in this matter. 

15:57:45 22 Instead, the evidence presented during the course of 

15:57:49 23 this trial supports a finding that any reasonable royalty in 

15:57:53 24 this matter would be a lump-sum royalty in an amount towards 

15:57:58 25 the lower end of the range developed by Voxer's own hired 

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15:58:03 1 valuation expert before this case was ever filed, which found a 

15:58:08 2 range of between 5- and 22.9-million for the entire Voxer 

15:58:14 3 patent portfolio. 

15:58:16 4 So let's begin our discussion with touching briefly 

15:58:24 5 on some important principles you heard during the jury 

15:58:30 6 instructions about the subject of damages. 

15:58:32 7 In a patent case, damages are not meant to punish. 

15:58:40 8 Instead, damages are measured as a reasonable royalty for the 

15:58:43 9 patented inventions. That reasonable royalty can be no more 

15:58:48 10 and no less than the value of just the patented inventions at 

15:58:53 11 issue. As you've heard and as indicated on the screen, a 

15:58:59 12 reasonable royalty is what the parties would have agreed to at 

15:59:03 13 a hypothetical negotiation in November of 2018. 

15:59:11 14 And, as both experts agree, both Voxer's expert and 

15:59:14 15 as Facebook's experts agreed on the stand, that negotiation is 

15:59:18 16 presumed to be a "cards up." The parties each know the 

15:59:22 17 relevant information going into that hypothetical negotiation. 

15:59:29 18 Now, during this trial you have heard evidence, most 

15:59:34 19 of it undisputed, about what the parties would have known when 

15:59:41 20 they entered into that hypothetical negotiation in 2018 for a 

15:59:47 21 license to the two patents that are at issue in this case.

15:59:49 22 A review of that evidence demonstrates that the 

15:59:51 23 hypothetical negotiation between these two parties would have 

15:59:55 24 resulted in a lump sum royalty payment in an amount much, much 

16:00:01 25 less than was demanded by Voxer in this case. 

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16:00:07 1 So what is that evidence? What would both parties 

16:00:09 2 have known when they sat down to this hypothetical negotiation? 

16:00:14 3 Well, as an initial matter, both parties sitting down 

16:00:21 4 in 2018 in a hypothetical negotiation would have known that no 

16:00:24 5 company has ever taken a patent license to any of the patents 

16:00:27 6 in this case. In other words, Voxer had no successful history 

16:00:33 7 of licensing its patents.

16:00:35 8 Here we have on the screen the testimony of 

16:00:38 9 Mr. Ratliff confirming what he wrote in his report, that he was 

16:00:40 10 aware of no Voxer licenses to the patents-in-suit or any 

16:00:45 11 evidence of the patents-in-suit having been licensed.

16:00:48 12 I'd also note that Mr. Ratliff acknowledged during 

16:00:53 13 his testimony that some licenses that Mr. Katis referenced 

16:00:57 14 early in the case when he was testifying were not patent 

16:01:04 15 licenses. Instead, they were user licenses, the kind you might 

16:01:06 16 click on to subscribe to a service. Those are not at issue in 

16:01:10 17 this case.

16:01:11 18 Now, during the hypothetical negotiation, sitting 

16:01:16 19 down in 2018, both parties would have known about the 2017 

16:01:23 20 Houlihan Lokey valuation. As you may recall from the evidence, 

16:01:27 21 Voxer hired a well-respected valuation expert known as 

16:01:32 22 Black Stone first, and they changed their name to Houlihan 

16:01:34 23 Lokey, to examine the value of Voxer's patent portfolio. And, 

16:01:40 24 in particular, Houlihan Lokey examined what the patents would 

16:01:44 25 be valued for Facebook, given the value of Facebook Live to 

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16:01:48 1 their business. 

16:01:51 2 And we see here on the screen an e-mail discussed by 

16:01:54 3 Ms. Lawton during her testimony, an e-mail from Voxer's own 

16:01:59 4 CEO, Irv Remedios, instructing Houlihan Lokey to take a look at 

16:02:05 5 just that, just the issue of the valuation for Facebook, given 

16:02:08 6 the value of Facebook Live to that business.

16:02:10 7 And Houlihan Lokey did that valuation work at Voxer's 

16:02:17 8 request. As you have heard from Ms. Lawton, Houlihan Lokey 

16:02:22 9 applied a generally accepted valuation method and determined 

16:02:26 10 the value of that whole patent portfolio to Facebook's -- 

16:02:32 11 Facebook Live product was valued at between 5 million and 

16:02:36 12 22 million. You see it highlighted on the screen.

16:02:40 13 It's important to note here that this valuation was 

16:02:44 14 for a patent portfolio license on 209 patents and patent 

16:02:50 15 applications, which included the patent family at issue here, 

16:02:54 16 regarding the '270 and '557 patents that were issued beginning 

16:02:58 17 the following year. And included applications using the same 

16:03:03 18 specification as those patents and included the actual 

16:03:06 19 application for the '270 patent. In other words this 5 

16:03:12 20 million-to-22.9 million valuation is for far, far more patent 

16:03:17 21 rights than what would be at issue in the hypothetical 

16:03:21 22 negotiation for just two patents in this case. 

16:03:27 23 And while Voxer's lawyers have argued that somehow 

16:03:29 24 these numbers should have been bigger and they crossed them out 

16:03:33 25 and wrote a bigger number on top, we know from Ms. Lawton's 

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16:03:37 1 testimony that that reflected a misunderstanding on Voxer's 

16:03:41 2 counsel's part of how to apply principles, including principles 

16:03:44 3 of net present value. We have here in front of us on the 

16:03:48 4 screen the Houlihan Lokey valuation that they made at Voxer's 

16:03:53 5 request just a year before the hypothetical negotiation. 

16:03:59 6 What else do we know about this negotiation? Well, 

16:04:01 7 we know that both parties entering this cards-up negotiation 

16:04:07 8 would realize that lump-sum royalties, not a running royalty 

16:04:13 9 were going to be the rule of day at this negotiation. In 

16:04:16 10 particular, you heard undisputed evidence in this case. Both 

16:04:20 11 Mr. Ratliff and Ms. Lawton looked at all the Facebook patent 

16:04:24 12 licenses in the case, about 150. Not a single one was a 

16:04:29 13 running royalty license. It was standard practice, as you 

16:04:33 14 heard from Ms. Lawton, in the relevant industry to enter 

16:04:37 15 lump-sum royalties. And even Voxer's own patent valuation 

16:04:42 16 expert, Houlihan Lokey, in the screen we just reviewed, that 

16:04:45 17 was a lump-sum royalty valuation.

16:04:49 18 So what does this all mean? This means that sitting 

16:04:55 19 down at this negotiation, this hypothetical negotiation, the 

16:04:59 20 parties would have been focused in the range of the Houlihan 

16:05:03 21 Lokey valuation. You see here on the screen I've indicated on 

16:05:08 22 the screen in green bars $5 million and $22.9 million as the 

16:05:13 23 range of the Houlihan Lokey valuation. 

16:05:16 24 And indicated above, that's for 209 patents and 

16:05:19 25 patent applications. And that was performed before there was a 

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16:05:24 1 lawsuit and lawyers involved. This is prelitigation, just a 

16:05:28 2 year before the state of the hypothetical negotiation.

16:05:30 3 In contrast, you see Mr. Ratliff's number indicated 

16:05:35 4 in the red bar on the right is far off from the reality of what 

16:05:42 5 would have happened in such a negotiation. His enormous 

16:05:46 6 figure, 107.4 million, for only two patents developed after the 

16:05:50 7 filing of litigation.

16:05:51 8 Why are those numbers so far off from reality? Well, 

16:05:57 9 among other things, because we learned through the evidence 

16:06:02 10 that, in fact, Mr. Ratliff made a number of errors in his 

16:06:06 11 calculation. Let's talk about this. 

16:06:08 12 You may recall this slide from viewing Ms. Lawton's 

16:06:12 13 testimony. She went over those with you, and she described 

16:06:16 14 some of those errors. Number one, usage-based royalty. This 

16:06:20 15 is the issue of a running royalty. It's another way of saying 

16:06:24 16 a usage-based royalty. And she explained to you, as we've just 

16:06:28 17 gone over in the evidence, there's no evidence in the record to 

16:06:30 18 support applying a running royalty to this case.

16:06:33 19 Second, Ms. Lawton explained to you that Mr. Ratliff 

16:06:37 20 failed to do an economic analysis of the incremental value of 

16:06:43 21 the patents. He chose to rely on the subjective technical 

16:06:49 22 analysis Dr. Mitzenmacher, and Dr. Mitzenmacher did not drill 

16:06:53 23 down on what did the patented inventions actually contribute to 

16:06:58 24 the value of the server. Instead, he just assumed the entire 

16:07:02 25 value of the server was attributable to the patented inventions 

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16:07:06 1 in this case. That is not supported by evidence in this 

16:07:09 2 matter, and you heard the critiques, for example, from 

16:07:12 3 Dr. Jeffay about the problems with Dr. Mitzenmacher's valuation 

16:07:17 4 technical apportionment.

16:07:18 5 Third, Mr. Ratliff had errors in his calculation 

16:07:25 6 regarding the third item, Facebook Live profitability.

16:07:27 7 You remember, perhaps, from Mr. Poffenberger's 

16:07:30 8 testimony yesterday, and he went over a lot of this with us. 

16:07:37 9 He showed that Mr. Ratliff had actually ignored the significant 

16:07:40 10 difference between the lower revenues for watch time on 

16:07:43 11 Facebook Live videos as opposed to other Facebook revenues that 

16:07:47 12 artificially inflated Mr. Ratliff's numbers.

16:07:51 13 Mr. Ratliff also admitted he ignored a report in 

16:07:55 14 evidence that demonstrated that Facebook Live had an 

16:08:00 15 insignificant effect on revenues. He simply ignored it as part 

16:08:06 16 of his analysis. 

16:08:07 17 And we also learned that Mr. Ratliff misunderstood 

16:08:09 18 the meaning of numbers, including a 44 percent number which 

16:08:13 19 I'll get to in a moment -- ignored numbers that even 

16:08:15 20 Mr. Ratliff admitted had been important to his analysis.

16:08:19 21 And, finally, number four on our screen, profit to 

16:08:23 22 Voxer. Mr. Ratliff assumed as part of his hypothetical 

16:08:28 23 negotiation analysis that the parties would sit down and agree 

16:08:35 24 that, at this negotiation, Voxer would be entitled to the 

16:08:40 25 entire profit margin resulting from that analysis, as if 

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16:08:44 1 Facebook would sit down to such a one-sided deal at this 

16:08:47 2 hypothetical negotiation. There's no evidence in the record to 

16:08:50 3 support this notion.

16:08:51 4 And I'd like to take a quick moment just to take a 

16:08:57 5 closer look at one of those errors made by Mr. Ratliff. You 

16:09:00 6 may recall this slide with the green bars indicating 44 percent 

16:09:05 7 on the right. And you may recall that Mr. Ratliff said the 

16:09:08 8 only number in all of this that ultimately matters was 

16:09:12 9 44 percent in 2018. And he said that was -- that 44 percent of 

16:09:18 10 Facebook's total ad revenues in 2018 came from video. That's 

16:09:23 11 what Mr. Ratliff said.

16:09:25 12 Here's his testimony on that matter, again, 

16:09:28 13 confirming what he had testified to in this trial about the 

16:09:31 14 44 percent number.

16:09:33 15 However, you recall Mr. Poffenberger's testimony 

16:09:39 16 yesterday, and explained Mr. Ratliff was mistaken. Facebook 

16:09:44 17 provided Voxer and Mr. Ratliff with the actual data on video 

16:09:49 18 revenues, but Mr. Ratliff did not use it. Instead, Mr. Ratliff 

16:09:52 19 used numbers that concerned video format ads, which are 

16:09:58 20 basically commercials running in a news feed, that have nothing 

16:10:02 21 to do with Facebook Live or prerecorded video content.

16:10:05 22 This wasn't a small error. Mr. Poffenberger 

16:10:08 23 explained, instead of that 44 percent figure in 2018, the 

16:10:13 24 actual number for video revenues was 5.5 percent. What this 

16:10:22 25 means, ultimately, is that Mr. Ratliff used a number that was 

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16:10:25 1 almost 10 times the real number. He used 44 instead of 5.5. 

16:10:31 2 And we see Mr. Poffenberger's testimony on the 

16:10:34 3 screen.

16:10:34 4 So bearing these facts all in mind and the evidence 

16:10:38 5 shows that a hypothetical negotiation between these parties in 

16:10:42 6 November of 2018, cards up over two patents in this case, would 

16:10:49 7 result in a lump-sum royalty in an amount that is at the low 

16:10:52 8 end, at the range of the 5 million to 22.9 million dollars 

16:10:56 9 circled in blue on this screen before you. 

16:11:00 10 It's the valuation reached by Voxer's own valuation 

16:11:05 11 experts before the case was filed, just a year before the 

16:11:07 12 hypothetical negotiation date. It's tethered to the reality of 

16:11:11 13 the parties. It's tethered to what happened before there was 

16:11:15 14 any litigation. And it encompasses -- those numbers encompass 

16:11:21 15 209 patents and patent applications.

16:11:24 16 In contrast, Mr. Ratliff's $174 million running 

16:11:29 17 royalty, which would amount over time to more than $400 million 

16:11:35 18 as a running royalty is premised on a series of errors. It is 

16:11:39 19 inconsistent with the evidence in this case. 

16:11:42 20 In this battle, ultimately of Voxer's own experts, 

16:11:45 21 the accurate assessment, the one that is far more reliable than 

16:11:50 22 Mr. Ratliff's is the one submitted by Houlihan Lokey indicated 

16:11:55 23 in the range in the green on the screen before you.

16:11:57 24 Ladies and gentlemen, that brings us to the 

16:12:02 25 conclusion of Facebook and Instagram's closing argument in this 

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16:12:07 1 matter. As we will not have another opportunity to address 

16:12:15 2 you, we submit that the evidence in this case does support and 

16:12:18 3 proves that Facebook did not infringe any patents in this case; 

16:12:24 4 that one patent at issue is invalid. 

16:12:27 5 But, that said, regardless of your verdict, we thank 

16:12:30 6 you for the time and attention you have given to this matter 

16:12:35 7 over time. It is important to the parties. Thank you.

16:12:40 8 THE COURT: Plaintiffs may close.

16:12:43 9 PLAINTIFF'S REBUTTAL ARGUMENT

16:12:43 10 MR. POWELL: Thank you, Your Honor.

16:12:44 11 Could we pull up DTX392 at page 47, please. And 

16:12:52 12 could you highlight the bottom where it says "Total 

16:12:55 13 consideration for patent value," all the way over.

16:12:58 14 And the ladies and gentlemen of the jury will recall 

16:13:01 15 this exhibit that the defendants just showed you. And remember 

16:13:06 16 it's in millions. It's up in the upper left hand. 

16:13:09 17 So the actual total value of Voxer's patent in this 

16:13:12 18 document is 127 million. They had other scenarios which were 

16:13:18 19 presented just a short while ago by me which actually have this 

16:13:22 20 number closer to 160 million in one scenario and over 

16:13:25 21 200 million in another scenario. So don't be fooled that, 

16:13:29 22 somehow, 5 to 22 is the right number. The right number is 

16:13:33 23 actually elsewhere in the document.

16:13:36 24 The other thing about Houlihan Lokey I want to make 

16:13:38 25 sure is clear, although I did mention it a short minute ago, 

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16:13:42 1 Houlihan Lokey did not perform a hypothetical negotiation 

16:13:45 2 analysis for this case. 

16:13:47 3 As the defense lawyers just acknowledged, that came 

16:13:50 4 over a year before the hypothetical negotiation, which means it 

16:13:54 5 doesn't satisfy the court's requirement in the jury 

16:13:56 6 instructions that you were just read. It doesn't analyze the 

16:14:01 7 Georgia-Pacific factors. It doesn't analyze the 

16:14:04 8 patents-in-suit. It doesn't go through all of the categories 

16:14:08 9 and groups of considerations that Mr. Ratliff did. So that 

16:14:11 10 opinion, if you want to call it that, really is not capable of 

16:14:15 11 being considered by the jury for this case. 

16:14:18 12 And that leaves you on the damages side only with 

16:14:22 13 Mr. Ratliff's fully supported analysis under the 

16:14:25 14 Georgia-Pacific factors and his conclusion as to what the 

16:14:28 15 reasonable royalty would be. 

16:14:29 16 Now, another thing to clear up real quickly is the 

16:14:34 17 identifier. And the ladies and gentlemen of the jury will 

16:14:35 18 recall, in my cross-examination of defense experts, we talked 

16:14:43 19 about the identifier of hunting and fishing.

16:14:46 20 Facebook would have you believe that the identifier 

16:14:49 21 required in the patent claims is something like a social 

16:14:51 22 security number, something that identifies a unique individual 

16:14:54 23 and guarantees that you can get something to them. Nothing 

16:14:57 24 could be further from the truth. The patent claims are quite 

16:15:00 25 broad, and identifiers can be anything that associates that 

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16:15:04 1 video communication with a potential recipient. 

16:15:07 2 So your identifier might be cooking. My identifier 

16:15:11 3 might be hunting and fishing. So if there's a cooking video 

16:15:15 4 that gets broadcast through the Live platform, it may find you. 

16:15:19 5 If there's a hunting video broadcast through the Live platform, 

16:15:22 6 it may find me. 

16:15:23 7 And one thing to remember that's important here: The 

16:15:26 8 patents deal with time-shifting. So they want to say the 

16:15:29 9 delivery has to happen -- that's not quite right. It has to 

16:15:33 10 happen eventually under certain of the claims. But under other 

16:15:38 11 claims, it never has to happen, or it can happen a day, a week, 

16:15:42 12 a month, years later. 

16:15:43 13 And, for infringement, we would find that as soon as 

16:15:47 14 it happens, we can call that an infringing use. But to say it 

16:15:51 15 has to identify someone to the level of a social security 

16:15:53 16 number is just frankly wrong. 

16:16:01 17 Now, another thing that you heard the defendants just 

16:16:03 18 say is that their system is pull and ours is push. Well, 

16:16:06 19 that's also irrelevant. Why? Because of the extra step 

16:16:09 20 instruction that you just heard from the judge. An extra step 

16:16:14 21 in an accused process cannot be a basis for finding no 

16:16:19 22 infringement. So whether it's a pull or push system isn't the 

16:16:23 23 question. The question is whether the claim elements are 

16:16:25 24 satisfied. 

16:16:26 25 And just because they want to interject an extra step 

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16:16:29 1 where, after the recipient is notified, the client has to make 

16:16:31 2 a request, that's not a noninfringement position. That's just 

16:16:35 3 a design option that they put into their system that's not 

16:16:38 4 required by the patent. 

16:16:43 5 We also heard about the Seckin patent publication. 

16:16:46 6 And please remember, Seckin is not a patent. That means it's 

16:16:50 7 not even an invention. And "invention" is a special word. 

16:16:54 8 Invention is a special word given to innovations that make it 

16:16:58 9 through the patent office and issue in a patent. Then you can 

16:17:01 10 call it an invention. That's not what Seckin is. 

16:17:05 11 And you heard Dr. Mitzenmacher talk about why that 

16:17:07 12 lessens its value as prior art. So the value is lessened. The 

16:17:13 13 burden is really high, clear and convincing. And if you 

16:17:18 14 believe any of Dr. Mitzenmacher's testimony on Seckin, then 

16:17:20 15 that's going to leave you with lingering doubts. And that 

16:17:24 16 means you don't achieve the level of overcoming the 

16:17:27 17 presumption. 

16:17:28 18 And there's something really interesting about Seckin 

16:17:30 19 not being a patent. If it were a patent, how would the Voxer 

16:17:34 20 patents have issued over it? If it's the same thing, how would 

16:17:38 21 Voxer have gotten a patent in the first place? If Seckin was 

16:17:42 22 an invention from 2004, how did patent applications with a 

16:17:46 23 priority date of 2007 ever issue? It just doesn't make sense. 

16:17:50 24 It doesn't add up. 

16:17:52 25 The reason the Voxer patents issued, Seckin is 

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16:17:54 1 something completely different. We looked at it on my 

16:17:56 2 cross-examination of Dr. Jeffay. It's an algorithm. Seckin 

16:18:02 3 didn't invent an infrastructure. Seckin tried to get a patent 

16:18:06 4 on something called a DBA algorithm. That's not what we're 

16:18:10 5 here to discuss, and that's why it has no relevance to the 

16:18:12 6 asserted patents. 

16:18:14 7 Now a couple of other things. If we could pull up 

16:18:17 8 PDX5.7. This is a slide I used in cross-examination. This is 

16:18:28 9 Facebook's system. And if we can blow up the live streaming 

16:18:29 10 infrastructure. 

16:18:30 11 And recall, I asked the experts about infrastructure, 

16:18:33 12 architecture, can they be used interchangeably? And 

16:18:36 13 essentially, that's how it's been treated in this trial. And 

16:18:40 14 what we can see here -- and, unfortunately, it's not really 

16:18:46 15 good quality, so hopefully on the monitor in front of you you 

16:18:49 16 can see. 

16:18:49 17 The left side, red, is a broadcast client. That's a 

16:18:52 18 client device. Everything between there and the blue playback 

16:18:57 19 client is server architecture. So between those two bookends 

16:19:00 20 is server. But all of it is the infrastructure. 

16:19:03 21 So when we look at '557 patent's message -- it's 

16:19:06 22 called video message service infrastructure, it includes 

16:19:10 23 end-to-end, every component, the application on the devices, 

16:19:14 24 the servers in the middle, the application on the other device. 

16:19:18 25 Facebook controls it all from start to finish. That means 

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16:19:23 1 that, in Claim 1 of the '557 patent, the video message 

16:19:28 2 infrastructure includes servers and it includes clients. 

16:19:32 3 Now, the defense wants to suggest, well, how can it 

16:19:34 4 send something to itself? Again, they're trying to use common 

16:19:39 5 concepts such as can a computer make a choice, can a server 

16:19:46 6 send something to itself. Of course it can. Look at how many 

16:19:50 7 servers are in this infrastructure. Clients can be in the 

16:19:54 8 millions. So a client can send something to the server, the 

16:19:58 9 server can send something to the client, the client can send 

16:20:01 10 something to another client. It's all within the 

16:20:03 11 infrastructure. 

16:20:04 12 So don't be fooled that, for some reason, this patent 

16:20:07 13 claim requires there to be two separate entities, one under the 

16:20:11 14 control of somebody else. It's just not accurate because the 

16:20:15 15 patents are given broad construction, we're not importing 

16:20:19 16 limitations from the specification, which is what the defense 

16:20:21 17 would like to do. 

16:20:25 18 All right. Now, a couple of other things that 

16:20:29 19 started early on in the defense's argument. I want to make 

16:20:33 20 this clear. It does not matter if Facebook did not copy 

16:20:38 21 Voxer's technology. It does not matter if they never heard 

16:20:43 22 about Voxer. It does not matter if they knew about Voxer's 

16:20:47 23 patents or not. Because this is a strict liability claim. 

16:20:51 24 And, once they implemented the system -- and even 

16:20:54 25 though the patents came later, once they implemented the system 

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16:21:00 1 and it's infringing, whether they knew about it or not does not 

16:21:03 2 matter. This is not required, that they had to have prior 

16:21:06 3 notice of the patents to find infringement. 

16:21:14 4 Let's see. Oh, another important point that you 

16:21:15 5 didn't hear the defense talk about: Where are Facebook's 

16:21:17 6 patents for the live streaming infrastructure? You haven't 

16:21:21 7 seen any. They haven't presented a single patent on their live 

16:21:26 8 streaming infrastructure. 

16:21:29 9 Why? Voxer has the patents. They have two -- over 

16:21:32 10 200 of them. Facebook can't get patents on their live 

16:21:36 11 streaming infrastructure. Voxer already patented that 

16:21:38 12 invention. So that's an important distinction that you 

16:21:42 13 obviously don't hear the defendants focusing on. 

16:21:47 14 Okay. Let's talk about some other things, and let me 

16:21:51 15 kind of raise the discussion up a little bit as we approach the 

16:21:54 16 conclusion of this trial. 

16:21:57 17 And now, ladies and gentlemen, we have covered quite 

16:22:02 18 a bit of ground in the past several days. We're now closing in 

16:22:06 19 on the finish line. Of course, nobody gets to the finish line 

16:22:09 20 without your help in deliberation. 

16:22:12 21 That's an interesting word "deliberation," not one we 

16:22:16 22 typically use in everyday parlance. But for purposes of today, 

16:22:20 23 and as the judge has instructed, it means to give all of the 

16:22:24 24 evidence a, quote, impartial consideration with your fellow 

16:22:27 25 jurors. That's the task ahead of you. And Voxer believes, if 

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16:22:32 1 you do that, you will see this through to the finish line and 

16:22:35 2 award it the $175 million reasonable royalty it has proven that 

16:22:41 3 it is entitled to. 

16:22:43 4 And here's something I want you to think about as you 

16:22:46 5 go through that process: For whose benefit did Voxer bring 

16:22:51 6 this lawsuit? Voxer brought this lawsuit for Matthew Ranney, 

16:22:57 7 Mr. Katis, and all the former and current Voxer employees that 

16:23:02 8 knew they brought live messaging to the world and that they did 

16:23:07 9 it before anyone else. 

16:23:08 10 And you know who else believed Voxer's technology was 

16:23:11 11 a step above everything else? Our friends at Houlihan Lokey, 

16:23:15 12 the firm that Facebook's own damages expert, Mr. Cathy Lawton 

16:23:18 13 talked to you about yesterday. 

16:23:20 14 If we could go to my first slide. 

16:23:22 15 This is in the Houlihan Lokey report. It's defense 

16:23:25 16 Exhibit 392. As we see here, Houlihan Lokey places Voxer's 

16:23:30 17 live messaging technology at the top of this heap of the best 

16:23:34 18 of the best of social media communications and traditional 

16:23:39 19 media companies. Houlihan Lokey identifies Voxer as resting 

16:23:43 20 atop even Facebook Live. They're right there in the middle. 

16:23:46 21 So Voxer is on top of Facebook Live, which we have -- which as 

16:23:52 22 we've seen this week, launched an infringing live video 

16:23:56 23 messaging infrastructure in 2015. 

16:23:59 24 Remember The Rock video that Facebook played during 

16:24:03 25 trial? That's 2015. Voxer's top-of-class hybrid messaging 

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16:24:07 1 system that combines asynchronous and synchronous conversations 

16:24:12 2 is the top of its field, according to Houlihan Lokey. 

16:24:16 3 Now, one thing I need to make sure we all understand. 

16:24:22 4 Facebook makes money from its Facebook and its Instagram Live 

16:24:27 5 video messaging services. As we learned during 

16:24:30 6 cross-examination of Ms. Lawton, Facebook, quote, Instead of 

16:24:33 7 paying to use Facebook and other products and services we 

16:24:37 8 offer, by using the Facebook products covered by these terms, 

16:24:40 9 you agree that we can show you ads that businesses and 

16:24:44 10 organizations pay us to promote on and off the Facebook company 

16:24:47 11 products, end quote. 

16:24:49 12 Now, we also learned that Facebook, "uses your 

16:24:53 13 personal data, such as information about your activity and 

16:24:56 14 interests, to show you ads that are more relevant to you," an 

16:25:00 15 identifier: cooking, hunting, fishing. That's how they show 

16:25:05 16 you ads. It's all how they show you live videos that you're 

16:25:09 17 going to be interested in. And Facebook decides who gets to 

16:25:12 18 see it. You heard testimony on that during this trial. 

16:25:16 19 Now, Facebook's corporate representative tried to say 

16:25:20 20 Facebook doesn't make money on its news feed from live content 

16:25:24 21 or video content. On cross-examination, however, 

16:25:27 22 Mr. Poffenberger acknowledged what Mr. Ratliff had told you 

16:25:30 23 days before about Facebook's video-first strategy. 

16:25:34 24 Mark Zuckerberg had bragged about it to the press. Video being 

16:25:38 25 50 percent of all time spent on Facebook and Instagram 

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16:25:42 1 services. Hard to imagine Mr. Zuckerberg being happy if it 

16:25:46 2 didn't make them money. 

16:25:48 3 And you will recall Mr. Ratliff informing you, and 

16:25:52 4 we've seen versions of this slide. He informed you just -- in 

16:25:57 5 just a few months, live video will be 25 percent of all 

16:26:01 6 Facebook video watch time over all surfaces. So it's an 

16:26:09 7 incredibly fast-growing business and important piece of 

16:26:12 8 Facebook's business model. 

16:26:13 9 Now, you will recall Mr. Ratliff testifying about the 

16:26:15 10 competitive landscape that Facebook faces with companies like 

16:26:19 11 TikTok, Twitch, Youtube, Amazon, the same companies you saw on 

16:26:23 12 the Houlihan Lokey slide just a moment ago. If Facebook 

16:26:27 13 falters on its video-first and live video offerings, it will 

16:26:31 14 not remain competitive in the social networking space and it 

16:26:34 15 will lose subscribers to other social media companies. This 

16:26:38 16 will cost Facebook in terms of lost ad revenue. So Live is 

16:26:42 17 critical to Facebook's -- Facebook's future. 

16:26:48 18 Now, when Facebook's expert Dr. Bhattacharjee 

16:26:50 19 admitted the asserted claims of the '270 patent did not require 

16:26:53 20 guaranteed delivery, he cut Facebook's entire noninfringement 

16:26:58 21 theory from the case. Think about it, ladies and gentlemen. 

16:27:01 22 Because Facebook designed its system so it could censor these 

16:27:06 23 video communications, they want you to find they don't 

16:27:09 24 infringe. 

16:27:10 25 As you heard from each and every technical witness, 

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16:27:12 1 and as the Court's jury instructions tell you, intervening 

16:27:16 2 unclaimed steps in the accused process do not preclude a 

16:27:19 3 finding of infringement. They're trying to run a gimmick here. 

16:27:24 4 The extra steps do not matter. As long as the enumerated steps 

16:27:28 5 are performed, Facebook could add hundreds or thousands of 

16:27:32 6 additional steps, and nothing changes. It's still infringes. 

16:27:41 7 As you heard, Voxer's beginnings were on a 

16:27:44 8 battlefield in Afghanistan. Following the 2011 terrorist 

16:27:49 9 attacks on the World Trade Center in New York City, Tom Katis 

16:27:53 10 took that cowardly attack as a call to arms, and he reenlisted 

16:27:58 11 in the Armed Forces to defend and protect his country, to 

16:28:02 12 protect yours and mine, all of ours, our right to free speech. 

16:28:05 13 So, yes, the Voxer patented method does not include 

16:28:08 14 the step of big brother type censorship because Voxer never 

16:28:12 15 considered using its live messaging platform to inhibit free 

16:28:17 16 speech. Rather, Voxer sought to promote free speech through 

16:28:22 17 its game-changing live messaging inventions. 

16:28:24 18 Now, you have probably heard "presumed innocent until 

16:28:26 19 proven guilty." This is a precept of American jurisprudence. 

16:28:30 20 It's what ensures that innocent men and women do not get 

16:28:35 21 wrongly incarcerated. Well, in this case there's a very 

16:28:36 22 important presumption as well. You've heard about it here 

16:28:38 23 today, the presumption of invalidity. 

16:28:40 24 A lot of work by the inventors and especially by the 

16:28:43 25 United States Government Patent Office went into making sure 

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16:28:46 1 these two issued patents were new and inventive and deserving 

16:28:50 2 of protection under the law. That is why they are presumed 

16:28:53 3 valid and why Facebook's challenges to them must be rejected, 

16:28:57 4 because if you credit any of Dr. Mitzenmacher's testimony, you 

16:29:04 5 must have lingering doubts. 

16:29:07 6 And Facebook now admits they have no defense 

16:29:10 7 regarding the validity of the '270 patent. None. They had 

16:29:12 8 years, years to scorch the earth looking for prior art. Not 

16:29:17 9 one. And Seckin anticipates the '557, why don't they assert it 

16:29:21 10 against the '270? They know it doesn't reach all the elements 

16:29:25 11 of either patent. 

16:29:28 12 They found not a single prior art reference even 

16:29:31 13 worthy of showing you all, not one. So the '270 patent is now 

16:29:35 14 admitted to be valid, and the presumption of validity is now 

16:29:38 15 more than just a presumption, it's a fact. It's a fact. 

16:29:43 16 Remember Matt Ranney. Mr. Ranney didn't have to come 

16:29:46 17 here and testify. He left Voxer years ago. He now lives in 

16:29:50 18 Pennsylvania. But he, unlike Mark Zuckerberg, Mike Schroepfer, 

16:29:53 19 and Peter Deng, he made the trip out here to talk to you. He 

16:29:57 20 left his family back in Pittsburgh to come share his story. 

16:30:04 21 Sadly, his story so far is not a terribly happy one. 

16:30:08 22 You heard him testify he left Voxer because it had no future in 

16:30:12 23 light of Facebook's taking the market opportunity for live 

16:30:15 24 video messaging from Voxer without compensating Voxer for the 

16:30:18 25 use of its patented technology. 

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16:30:20 1 When Mr. Ranney and Mr. Katis started Voxer, they 

16:30:24 2 could see the future of video messaging. They even laid out 

16:30:28 3 the conversation management system in their first provisional 

16:30:31 4 patent application that foretold the future of social media. 

16:30:36 5 The Facebook and Instagram Feed, which I suspect many 

16:30:39 6 of you scroll through quite often, that is a conversation 

16:30:44 7 management system just like what Mr. Ranney and Mr. Katis 

16:30:47 8 sketched out back in early 2007 and put in their first 

16:30:51 9 provisional patent application that was filed on June 28, 2007. 

16:30:59 10 Then they met the Panttajas, the engineers who helped 

16:31:02 11 them figure out the architecture for that conversation 

16:31:05 12 management and live messaging system. Their collective work is 

16:31:09 13 reflected in the second provisional patent application that 

16:31:13 14 Voxer filed on October 19, 2007. You know that date, 

16:31:17 15 October 19, 2007. That's the priority date for both patents. 

16:31:23 16 And that is the date that tells you, the jury, whether proper 

16:31:28 17 prior art is relevant to the validity of the patent or not. 

16:31:31 18 And there's only one piece of prior art. We've 

16:31:32 19 talked about the Seckin publication. It's not a patent. It's 

16:31:36 20 an application. Yes, an application. Ms. Seckin did not get a 

16:31:40 21 patent. Her application failed, something you heard Dr. Jeffay 

16:31:45 22 testify he wasn't even aware of. He asserted it as a basis of 

16:31:50 23 his opinion and didn't even bother to check if it was an issued 

16:31:53 24 patent, which is quite strange because patent filings are 

16:31:57 25 public record and are easily looked up. 

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16:31:59 1 Now, you also heard testimony from Dr. Jeffay that 

16:32:02 2 patents have a 20-year term and that term is measured from the 

16:32:06 3 first original patent application. This one Voxer filed on 

16:32:09 4 February 8th, 2008. So that means the '557 and the '270 

16:32:13 5 patents, they don't expire until 2028, almost six years from 

16:32:19 6 now. And this is why February 8, 2008 is important, but it's 

16:32:23 7 also why a running royalty, not a lump-sum royalty, is 

16:32:27 8 appropriate in this case. These patents have legs. They're 

16:32:30 9 going to be around for six more years. And if you find that 

16:32:33 10 Facebook infringes and they want to keep using the patented 

16:32:36 11 invention, well, they'll have to keep paying. 

16:32:42 12 And you heard testimony from Facebook's engineers, 

16:32:45 13 that they started working on Facebook Live sometime in 2014. 

16:32:48 14 And, as Dr. Jeffay testified, because it is undisputed that the 

16:32:51 15 '557 and '270 patents are entitled to claim priority back to 

16:32:56 16 October 19, 2007, both patents are deemed filed on that date. 

16:33:01 17 They're deemed filed on that date. This is important. 

16:33:05 18 Even though it seems odd that the '270 and the '557 

16:33:08 19 patents were filed after Facebook launched its live messaging 

16:33:12 20 infrastructure in 2015, under the law, as this Court has 

16:33:17 21 instructed you, both patents are deemed to have been filed in 

16:33:20 22 2007. That means, even though the patents technically had not 

16:33:24 23 been filed and even if Facebook did not know about them, they 

16:33:27 24 still owe a royalty if you find infringement. 

16:33:30 25 You might question, is that fair? Well, as this 

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16:33:35 1 Court instructed you, patent infringement is what is called a 

16:33:38 2 strict liability offense. In both tort and criminal law, 

16:33:43 3 strict liability exists when a defendant liable for committing 

16:33:46 4 an action regardless of what his or her intent or mental state 

16:33:51 5 was when committing the action. 

16:33:54 6 An example, selling alcohol to a minor, that's a 

16:33:58 7 strict liability offense. Speeding is another one. Whether 

16:34:01 8 you knew you were speeding or not, you're going to get that 

16:34:05 9 ticket. 

16:34:07 10 Now, you'll recall that you had to hear from 

16:34:10 11 Peter Deng during Facebook's case instead of ours because 

16:34:13 12 Facebook had objected. They sure did not want you to hear that 

16:34:17 13 they looked at Voxer's patents back in February 2012.

16:34:21 14 MR. VAN NEST: Objection, Your Honor: That's 

16:34:22 15 improper argument.

16:34:23 16 THE COURT: Sustained. The jury will disregard the 

16:34:25 17 last statement.

16:34:26 18 MR. POWELL: Facebook -- you'll recall the business 

16:34:36 19 discussions between Facebook and Voxer. Facebook wanted you to 

16:34:39 20 believe that they simply determined they didn't need Voxer's 

16:34:42 21 walkie-talkie voice messaging app, so they cut off discussions.

16:34:47 22 Well, we know that's not the case. They cut off 

16:34:50 23 discussions with Voxer because Facebook determined Voxer's 

16:34:53 24 technology was not only core, it was patented. And after 

16:34:56 25 looking at its first issued patent, they realized Voxer had 

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16:35:00 1 patented Facebook's future.

16:35:01 2 Voxer asks that you, ladies and gentlemen of the 

16:35:03 3 jury, send Facebook a message. You may get -- they may get to 

16:35:07 4 read our e-mails and intercept our videos, but they can't walk 

16:35:12 5 all over somebody's United States patent rights without being 

16:35:15 6 held accountable. 

16:35:16 7 Just as Mr. Katis fought as a soldier for our right 

16:35:19 8 to free speech, Voxer now asks you and each of you to fight as 

16:35:23 9 a juror for its property right and find that Facebook has 

16:35:25 10 infringed both patents. Hold them accountable. Facebook did 

16:35:30 11 not just take Voxer's technology and trample on its patents. 

16:35:33 12 They stole its future. 

16:35:36 13 I urge you, ladies and gentlemen, please give 

16:35:38 14 Matt Ranney and the other former Voxer employees their future 

16:35:42 15 back. Find Facebook and Instagram have infringed the '270 and 

16:35:46 16 '557 patents, find Facebook has failed to overcome the 

16:35:51 17 presumption of validity on the '557 patent, and award Voxer the 

16:35:56 18 $175 million reasonable royalty it has proven it is entitled 

16:36:01 19 to. 

16:36:01 20 For myself, my client, its founders, Mr. Katis, 

16:36:07 21 Mr. Ranney, the Panttajas, for all of the Voxer employees and 

16:36:12 22 their families, sincerely, we thank you for your time and 

16:36:15 23 consideration.

16:36:17 24 THE COURT: Ladies and gentlemen of the jury, you've 

16:36:20 25 now heard the entire case, including the closing arguments, and 

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16:36:24 1 the case will pass into your hands. 

16:36:27 2 So let me give you a few instructions. You may only 

16:36:30 3 talk about this case when all eight of you are present together 

16:36:35 4 in your jury room. You can't break up into small groups and 

16:36:38 5 discuss it. Or if you were to take a luncheon break or evening 

16:36:42 6 break or something like that, you can't discuss it in small 

16:36:44 7 groups. You can only discuss the case when you're all present 

16:36:48 8 in your jury room. 

16:36:51 9 Up until this point, I pretty much controlled your 

16:36:54 10 time. But now the case passes into your hands, as does your 

16:36:59 11 time. You can deliberate when you want to deliberate. For 

16:37:04 12 instance, it's a little after 4:30 today. If you want to 

16:37:08 13 deliberate some into the evening, you may, but you do not have 

16:37:11 14 to. You can come back in the morning if you would rather do 

16:37:15 15 that. 

16:37:16 16 What I ask you to do is, when you recess, I want you 

16:37:22 17 to do two things for me, and that is to select your presiding 

16:37:28 18 juror and let us know who that is, and then determine what your 

16:37:34 19 initial work schedule's going to be. If you're going to stay 

16:37:38 20 here a while tonight and then come back at a certain time 

16:37:40 21 tomorrow, tell me that. And you'll do this through the note 

16:37:44 22 process that we've talked about. If you just want to select 

16:37:48 23 the presiding juror and recess for the evening and come back 

16:37:51 24 tomorrow and start your deliberations you may do that. 

16:37:55 25 You can come back as early or as late as you want to. 

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16:37:59 1 I will ask you -- or I would like you during the day, as you're 

16:38:03 2 deliberating tomorrow, that from time to time let me know when 

16:38:07 3 you're going to have a lunch break or when you're going to 

16:38:10 4 recess later, depending on how long your deliberations take, 

16:38:14 5 because the lawyers are going to be interested in what you're 

16:38:17 6 doing and when you're going to be doing it. I'm going to be 

16:38:20 7 interested in that because I have other things to do. So we 

16:38:23 8 just need to kind of keep track of what schedule we're on. But 

16:38:27 9 what that schedule is solely yours. 

16:38:29 10 So, remember the instructions that I've given you now 

16:38:34 11 and what the written instructions are. And you're excused to 

16:38:40 12 commence your work as a jury.

16:38:42 13 (Jury recessed)

16:39:19 14 THE COURT: What I want from you-all, and you may 

16:39:20 15 have already done it or not, Ms. Oakes needs the hot numbers of 

16:39:26 16 at least one lawyer from each side who are going to be present 

16:39:29 17 if we get a note or if we get a verdict. And one is enough. 

16:39:39 18 But if you want more people here during that, that's fine, but 

16:39:42 19 they're going to have to hang out together because I'm not 

16:39:45 20 going to keep the jury waiting if we get a note or get a 

16:39:48 21 verdict while we round up this whole side of the courtroom and 

16:39:52 22 round up this whole side of the courtroom. So make sure 

16:39:54 23 Ms. Oakes knows what the phones are and where she can get ahold 

16:39:59 24 of you.

16:40:00 25 And what we're going to automatically do is send 

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16:40:05 1 enough copies of the jury charge and the verdict form back to 

16:40:08 2 the jury to where they can all have one. And then I'm -- I 

16:40:14 3 think they'll take me at my word and let me know the 

16:40:16 4 original -- the first schedule and the presiding juror. So if 

16:40:21 5 you want to hang around and see what we get from them. 

16:40:24 6 I want to thank you-all. It's been a long seven 

16:40:27 7 trial days, but I think you've tried a good case. I've enjoyed 

16:40:33 8 being with you.

16:40:34 9 MR. VAN NEST: Thank you, Your Honor.

16:40:35 10 MR. STONE: Thank you, Your Honor.

16:40:36 11 MR. VAN NEST: Your Honor, I have one comment and 

16:40:38 12 objection I'd like to place in the record, in addition to my 

16:40:43 13 thanks, of course. 

16:40:44 14 But during Mr. Powell's rebuttal closing, he said 

16:40:48 15 Facebook doesn't have patents. Whether Facebook has patents or 

16:40:53 16 not is irrelevant. It was improper, highly prejudicial, and I 

16:40:59 17 would ask the Court to give a curative instruction to the 

16:41:02 18 jurors that, whether Facebook has patents or not is irrelevant 

16:41:06 19 to any issue to be resolved in the case. It's not something we 

16:41:11 20 even debated. It's not something we even discussed. It's not 

16:41:15 21 relevant. It was improper. And I'd ask the court to give a 

16:41:19 22 curative instruction that, whether Facebook has patents or not 

16:41:22 23 is irrelevant.

16:41:24 24 MR. POWELL: Your Honor, I think we can check the 

16:41:25 25 transcript. I believe I said they didn't present any patents 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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16:41:29 1 during this trial.

16:41:32 2 THE COURT: Well, Ms. Rodriguez, if you can check and 

16:41:34 3 see. About when did that occur in the argument? 

16:41:37 4 MR. VAN NEST: It happened during the rebuttal here, 

16:41:39 5 within the few minutes of the Mr. Powell's conclusion.

16:41:42 6 While we're waiting to hear what we're going to hear, 

16:41:45 7 let's see what we can find.

16:51:25 8 THE COURT: Your presiding juror is Deborah 

16:51:28 9 Lancaster, who was the woman that sat on the end of the front 

16:51:30 10 row here throughout the trial. They are breaking for the 

16:51:34 11 evening. They'll be back at 9:00. They're going to lunch 

16:51:38 12 between 12:00 and 1:00. They've even told me what the 

16:51:44 13 afternoon and midmorning breaks will be. It would be what 

16:51:46 14 we're doing. It would be 10:30 and 3:30. That's even more 

16:51:49 15 information than I wanted from them. I just care when they're 

16:51:49 16 going to be in the courthouse. And an evening recess is to be 

16:51:54 17 determined.

16:51:54 18 So nothing's going to happen to you before 

16:51:58 19 nine o'clock in the morning or a little bit thereafter.

16:52:01 20 MR. VAN NEST: Your Honor, we found the passage in 

16:52:03 21 the closing in which counsel told jurors that Facebook hasn't 

16:52:12 22 presented any patents. You didn't see any patents on their 

16:52:17 23 live streaming system. Or court reporter could read the Q and 

16:52:25 24 A. But, obviously, not -- 

16:52:29 25 THE COURT: Well, it's not going to be Q an A. 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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16:52:32 1 There's only -- 

16:52:32 2 MR. VAN NEST: It's A. It's only A.

16:52:34 3 MR. POWELL: Just so the Court's aware, Facebook 

16:52:35 4 has 62 patents on their exhibit list, so they could have tried 

16:52:39 5 to introduced them in this trial. They chose not to. I think 

16:52:42 6 it's a relevant point to make to the jury. They had an 

16:52:45 7 opportunity to present, just like they had an opportunity to 

16:52:47 8 present additional prior art. They chose not to. It's their 

16:52:50 9 choice. I can tell the jury what happened, what they didn't 

16:52:52 10 see. 

16:52:53 11 I just -- I was very careful not to say they don't 

16:52:56 12 have patents on this system. I knew better than to say that. 

16:53:00 13 But to tell the jury they haven't seen any in this proceeding, 

16:53:02 14 I think that's fair game.

16:53:03 15 MR. VAN NEST: It's not. We stipulated -- they made 

16:53:06 16 a motion in limine to exclude it, and we stipulated to it, and 

16:53:10 17 it was out of the case. And it wasn't relevant to anything. 

16:53:14 18 They asked us not to present it, and we agreed. And now he's 

16:53:18 19 told the jury that there's something significant about the fact 

16:53:22 20 that they didn't see any Facebook patents on our live streaming 

16:53:27 21 system and that we didn't present any. Well, they're the ones 

16:53:31 22 that moved to exclude it, and we stipulated to it.

16:53:34 23 MR. POWELL: We did not stipulate. That's not true, 

16:53:36 24 Your Honor. They withdrew it. That's it. There's no 

16:53:39 25 agreement. There's no stipulation. Not that I'm aware of.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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16:53:44 1 THE COURT: Well, you know it better than I know it, 

16:53:46 2 because I wasn't in any of the discussions.

16:53:48 3 MR. POWELL: I mean, if they want to try and argue we 

16:53:50 4 agreed, we can take a look at that. I'm not aware of any 

16:53:53 5 agreement on that ground. We all withdrew our motions in light 

16:53:56 6 of Your Honor's comments.

16:53:57 7 THE COURT: Here's what I want you to do. 

16:54:00 8 Ms. Rodriguez will give you, if you need it, copy of 

16:54:05 9 what exactly was said. The jury is going home. Mr. Van Nest, 

16:54:11 10 prepare for me no argument -- listen to me -- just on paper 

16:54:15 11 exactly what curative instruction you would have me give the 

16:54:18 12 jury. And you-all both look through your records and your 

16:54:22 13 files and see if there was a stipulation or discussion and what 

16:54:25 14 have you, and we can talk about it -- give me a time in the 

16:54:31 15 morning when you want to talk about it.

16:54:33 16 MR. VAN NEST: Nine o'clock.

16:54:34 17 THE COURT: I'll be here at 9:00.

16:54:36 18 MR. POWELL: I'm fine with 9:00, Your Honor. 

16:54:37 19 THE COURT: Okay. We'll talk about it at 9:00, and 

16:54:39 20 I'll decide if I'm going to give a curative instruction.

16:54:42 21 MR. VAN NEST: Thank you, Your Honor.

16:54:42 22 MR. POWELL: That works for the plaintiff. Thank 

16:54:43 23 you. 

16:54:47 24 THE COURT: All right. Thank you-all.

16:54:51 25 (End of transcript)

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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 1 UNITED STATES DISTRICT COURT )

 2 WESTERN DISTRICT OF TEXAS )

 3 I, Arlinda Rodriguez, Official Court Reporter, United 

 4 States District Court, Western District of Texas, do certify 

 5 that the foregoing is a correct transcript from the record of 

 6 proceedings in the above-entitled matter.

 7 I certify that the transcript fees and format comply with 

 8 those prescribed by the Court and Judicial Conference of the 

 9 United States. 

 10 WITNESS MY OFFICIAL HAND this the 29th day of 

 11 September 2022.

 12

 13 /S/ Arlinda Rodriguez

Arlinda Rodriguez, Texas CSR 7753

 14 Expiration Date: 10/31/2023

Official Court Reporter

 15 United States District Court

Austin Division

 16 501 West 5th Street, Suite 4152

Austin, Texas 78701

 17 (512) 391-8791

 18

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ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER

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

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