In the Matter of:

FTC v. Qualcomm, Inc.

August 16, 2018

Benedicte Fauvarque-Cosson

Condensed Transcript with Word Index

For The Record, Inc.

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Case 5:17-cv-00220-LHK Document 863-4 Filed 09/19/18 Page 1 of 42
Fauvarque-Cosson

FTC v. Qualcomm, Inc. 8/16/2018

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For The Record, Inc.

1 (Pages 1 to 4)

1

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 FEDERAL TRADE COMMISSION, )

5 Plaintiff, )

6 vs. ) Case No.

7 QUALCOMM, INCORPORATED, ) 5:17-cv-0220-LHK-NMC

8 Defendant. )

9 --------------------------)

10

11 Thursday, August 16, 2018

12

13 825 Eighth Avenue

14 New York, New York

15

16 The above-entitled matter came on for the deposition of

17 BENEDICTE FAUVARQUE-COSSON, pursuant to notice, at 9:03

18 a.m.

19

20

21

22

23

24

25

2

1 APPEARANCES:

2

3 ON BEHALF OF THE PLAINTIFF:

4 DAN MATHESON, ESQ.

5 Federal Trade Commission

6 400 7th Street, SW

7 Washington, D.C. 20024

8 (202) 326-2075

9 dmatheson@ftc.gov

10

11 ON BEHALF OF THE DEFENDANT AND WITNESS:

12 WES EARNHARDT, ESQ.

13 JONATHAN MOONEY, ESQ.

14 JAMES CANNING, ESQ.

15 Cravath, Swaine & Moore, LLP

16 825 Eighth Avenue

17 New York, New York 10019

18 (212) 474-1296

19 wearnhardt@cravath.com

20

21

22 Also Present:

23 Rocco Mercurio - Videographer 

24 Daniel Sherr - French interpreter

25

3

1 I N D E X

2 WITNESS: EXAMINATION:

3 BENEDICTE FAUVARQUE-COSSON 4

4 BY MR. MATHESON

5

6 EXHIBITS REFERENCED PAGE

7 Exhibit CX0057 5

8 Exhibit CX7552 114

9 Exhibit CX57013 147

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4

1 P R O C E E D I N G S

2 - - - - -

3 THE VIDEOGRAPHER: We are now going on the

4 record. My name is Rocco Mercurio, your videographer.

5 Today is August 16, 2018 and the time is approximately

6 9:03. We are located at 825 8th Avenue, New York, New

7 York. This is disk one of the deposition of Professor

8 Fauvarque-Cosson, case entitled Federal Trade

9 Commission versus Qualcomm Incorporated, filed in the

10 United States Northern District of California, San Jose

11 Division, case number 5:17-CV-00220.

12 Will counsel please introduce themselves and

13 who they represent for the record.

14 MR. MATHESON: Dan Matheson for the Federal

15 Trade Commission.

16 MR. EARNHARDT: Wes Earnhardt on behalf of

17 Qualcomm.

18 MR. MOONEY: Jonathan Mooney on behalf of

19 Qualcomm.

20 MR. CANNING: James Canning on behalf of

21 Qualcomm.

22 THE VIDEOGRAPHER: The court reporter, Stefanie

23 Krut, will now swear in the witness and then we can

24 proceed.

25 B E N E D I C T E F A U V A R Q U E - C O S S O N,

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For The Record, Inc.

2 (Pages 5 to 8)

5

1 having first been duly sworn by a Notary Public of the

2 State of New York, was examined and testified as

3 follows:

4 EXAMINATION BY

5 MR. MATHESON:

6 Q. Good morning. Could you state your name for

7 the record, please.

8 A. Yes. My name is Benedicte Fauvarque-Cosson.

9 Q. And you're a professor?

10 A. Yes, I am.

11 Q. What's the appropriate honorific? Is it

12 professor, is it doctor, how do you prefer to be

13 addressed?

14 A. Well, professor is much better.

15 Q. Okay.

16 A. Because you have many doctors and not many

17 professors.

18 Q. Okay. And you've prepared an expert report in

19 this matter. Correct?

20 A. Correct.

21 Q. And I'll hand you a document that we pre-marked

22 CX-0057.

23 (Exhibit CX-0057 was marked for the record.)

24 Q. Is this a copy of the expert report you

25 prepared in this matter?

6

1 A. Yes, it is.

2 Q. And this report discloses all of the opinions

3 that you have reached in this matter; is that correct?

4 A. This is correct.

5 Q. Your report states on page 2, quote, "attached

6 as Exhibit-2 is a list of materials I have relied upon

7 in forming the opinions expressed in this report."

8 Prior to signing -- well, strike that.

9 Do you see Exhibit-2 at CX-0057-037?

10 A. Yes. I have it.

11 Q. So prior to the time you signed this report,

12 did you review any deposition transcripts taken in this

13 matter that are not listed on Exhibit-2?

14 A. No, I did not review deposition transcripts.

15 Q. Prior to the date you signed this report, did

16 you personally review any documents produced in this

17 matter that are not listed in Exhibit-2?

18 A. I do not remember having reviewed any other

19 documents than the one listed here for this report.

20 Q. Prior to signing this report, did you review

21 any other expert reports produced in this matter other

22 than the ones listed in Exhibit-2?

23 A. For this report, I did not review other expert

24 reports.

25 Q. Prior to signing this report, did you conduct

7

1 any interviews relevant to this matter that are not

2 listed in Exhibit-2?

3 A. No. I did not conduct any interviews.

4 Q. Prior -- that are relevant to your opinions in

5 this matter?

6 MR. EARNHARDT: Well, objection. What do you

7 mean by interviews?

8 A. Yes, that's -- that's what I was asking myself.

9 What do you mean by interviews?

10 Q. Do you have an understanding what the word

11 interview means?

12 A. For me it's going to the TV and speaking

13 publicly or speaking to a newspaper, something which

14 goes beyond the confidentiality so I would never --

15 THE REPORTER: Beyond the?

16 A. -- confidentiality of what was requested, so I

17 would not have conducted an interview.

18 Q. Did you have any conversations with individuals

19 prior to signing this report that are relevant to the

20 opinions you expressed in this report?

21 A. This is a different question. Yes, I did.

22 Q. With whom did you have conversations relevant

23 to the opinions you expressed in this report prior to

24 the date you signed this report?

25 A. I had conversation with the lawyers of --

8

1 Qualcomm lawyers and I also I had conversations with

2 Professor Alain Benabent.

3 Q. I'm sorry. Can you spell that please?

4 A. B-E-N-A-B-E-N-T. B-E-N-A-B-E-N-T.

5 Q. Apart from attorneys employed by Qualcomm and

6 Professor Benabent, did you have any conversations with

7 any other individuals that are relevant to the opinions

8 you express in this report?

9 A. No, I did not.

10 Q. Who is Professor Benabent?

11 A. Professor Benabent well, he used to be a

12 professor of law. Now he's a avocat a la cour de

13 cassation et conseil d'etat.

14 THE REPORTER: A what?

15 A. Now he's a lawyer, avocat, from the Supreme

16 Courts and then I have worked with him previously. And

17 he is a very well known and famous specialist of the

18 law for obligation and that's it.

19 Q. The law of obligation, is that a term of art?

20 A. Yes, it is.

21 Q. What is meant by the law of obligation?

22 A. Obligations may come from a contract, so

23 contract law. Obligations may come from an act and

24 then it's the law of torts. So what we mean in France

25 by the law of obligation is both contract and tort.

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9

1 Q. What did you discuss with Professor Benabent

2 that is relevant to the opinions you express in this

3 matter?

4 A. Not very much, though but, we had been working

5 together more than 10 years ago on the matters for

6 Qualcomm already, so we discussed the evolution in

7 French law since then because there has been a reform

8 and whether or not this have implied changes.

9 Q. What -- well, strike that.

10 When was the first time you performed work for

11 Qualcomm?

12 A. If my memory is good I think it was 2006.

13 Q. And was Professor Benabent involved at that

14 time?

15 A. Yes, he was.

16 Q. What was the issue on which you performed work

17 for Qualcomm in 2006?

18 A. The main issue was about the concept of a

19 accord de principe, and agreement to enter into a

20 contract. And the question, the main question was

21 whether there was an -- or not there was an automatic

22 license due to the FRAND commitment. And our position

23 was that there was not an automatic license, there was

24 no license contract. And one of the reasons why was

25 that the important elements such as due process had not

10

1 been decided. So the FRAND commitment was not

2 equivalent to a license contract. That was the main

3 issue in 2006.

4 Q. So is it fair to state that in 2006,

5 implementers of standards promulgated by ETSI claimed

6 that Qualcomm's FRAND commitment gave them an automatic

7 license to Qualcomm's intellectual property?

8 A. I don't remember well enough. I wasn't -- I'm

9 not sure whether they claim this or not. What we

10 wanted to show is that under French law, that could not

11 be an automatic license.

12 Q. Was there a specific litigation that your work

13 related to?

14 A. Yes, there was.

15 Q. Which one was that?

16 A. I don't remember.

17 Q. What was the outcome of your work? Did you

18 provide testimony, did you prepare an expert report?

19 What happened?

20 A. Yes. I provided an expert report, yes, and I

21 was deposed also.

22 Q. And what was the venue, where did this take

23 place, the deposition?

24 A. In New York.

25 Q. Was it a litigation in United States courts?

11

1 A. Yes, it was. I suppose so. Now it's quite a

2 while ago.

3 Q. Did it involve the International Trade

4 Commission?

5 A. I can't remember.

6 Q. Did it involve Broadcom?

7 A. Who?

8 Q. Broadcom?

9 A. I don't remember.

10 Q. Okay. What did you ask?

11 A. No. Now I remember. It involved Nokia.

12 Q. Nokia in 2006?

13 A. Yes.

14 Q. So this was the Nokia 2006 litigation?

15 A. Yes.

16 Q. Okay. Did Professor Benabent provide a

17 deposition in that action as well?

18 A. We wrote a report together. Then he was

19 deposed in Paris and later I was deposed here in New

20 York.

21 Q. What did you ask Professor Benabent in your

22 recent discussions that relate to the opinions you

23 express in the report you've produced in this matter?

24 A. Well, not very much. So far as I remember,

25 we -- we discussed the reform, the French law reform,

12

1 and I've only had one or two conversations with him on

2 this report and on this matter, and not very

3 substantial because, to tell you the truth, he doesn't

4 speak English so it's not that obvious I need to

5 translate all the time into French and then put it back

6 into English. And in 2006, everything was translated

7 from English to French and French to English, but this

8 time nothing was translated.

9 Q. What is the reform of French law that you're

10 referring to?

11 A. It's a reform which takes place within the

12 French CV code. The French CV code dates from 1804 and

13 it's a very important reform of the law of obligations.

14 But so far, only the part on the law of contracts has

15 been accomplished and the reform of law tort is still

16 pending. And this reform has been done in 2016 by way

17 of a decree by the Ministry of Justice. And it has

18 been slightly modified but very slightly by law in

19 2018. It's a very important reform in France because

20 all these texts went back to 1804 and for the first

21 time really there has been a major change of the good

22 CV. But as we got substance, the reform is not a

23 revolution, it doesn't change drastically the law of

24 contracts. It's rather recodification of French law

25 and a French case law that have evolved since 1804.

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13

1 Q. In your discussions with Professor Benabent,

2 did he express the view that the 2016 reform was

3 relevant to the issues you address in your expert

4 report in this matter?

5 A. This is an odd question because obviously the

6 2016 reform is relevant. Every contract lawyer in

7 France keeps his eye on this reform. It's the major

8 event in France in law since 1804.

9 Q. Did -- strike that.

10 What did you tell Professor Benabent was the

11 issue you were asked to address in this report?

12 A. Well, there was two issues: Interpretation of

13 contract and stipulation on behalf of third parties.

14 Q. Did he express the view to you that the 2016

15 reform changed in any way the analysis you express

16 regarding the interpretation of contract?

17 A. No.

18 Q. Did he express to you the view that the 2016

19 reform had no effect on the view you expressed in the

20 interpretation of contract?

21 A. Can you repeat this question?

22 Q. What I'm trying to get at is: Would -- did he

23 express to you the view that the opinion you should

24 reach on interpretation of a contract should be exactly

25 the same, regardless of whether the 2016 reform had

14

1 been passed by the Ministry of Justice?

2 A. It's been much more shorter than that. He

3 just -- to tell you the truth, I don't really remember

4 our conversation on the interpretation of contract. He

5 has his book and there is a new edition of his book

6 with the French contract law reform. And I have quoted

7 his book and I think all he did -- but he didn't really

8 need to do it because I could have done it by myself is

9 point out the relevant paragraph in his book, which I

10 have quoted in his -- in my reports.

11 Q. And where in your report does that appear?

12 A. On page 7. And it was -- as we got the role of

13 industry practice, I have quoted two important books.

14 One is an introduction, general introduction from

15 Pascale Deumier, and then at the bottom of Page 7, I

16 quote him.

17 Q. What did you tell Professor Benabent was the

18 industry practice relevant to your opinions in this

19 matter?

20 MR. EARNHARDT: Object to the form.

21 A. Could you say that again, please?

22 Q. Did you tell Professor Benabent any facts

23 regarding industry practice that -- during the course

24 of your discussions with him?

25 A. We did not discuss the facts. He did have some

15

1 knowledge of the facts of -- because he had been

2 involved previously. So regarding industry practice, I

3 don't think we -- we discussed much. And I -- when I

4 quote his book, that's -- you have here everything that

5 we discussed, it's in this paragraph here.

6 Q. Prior to signing this report, did you review

7 any documents relevant to the intellectual property

8 rights policies of any standards setting organizations

9 that are not listed in Exhibit-2?

10 A. I will return to Exhibit-2 to check. You mean

11 other than ETSI? I reviewed the ETSI Intellectual

12 Property Rights Policy, particularly annex 6.

13 Q. It's fair to state you did not review, prior to

14 signing this report, the intellectual property rights

15 policies of any standards setting organization other

16 than ETSI. Right?

17 A. Yes, it is fair to state that.

18 Q. Prior to signing this report, did you have

19 independent knowledge of the intellectual property

20 rights policies of any standards setting organization

21 other than ETSI?

22 A. No, I did not.

23 Q. Did you ask to see any documents prior to

24 signing this report that you were unable to review for

25 some reason?

16

1 A. No, I did not.

2 Q. Were there any discussions you would like to

3 have had in order to understand the opinions you

4 express in this report that you were unable to have?

5 A. I'm not sure what -- discussions with -- with

6 whom, with Qualcomm's lawyers you mean or?

7 Q. Is there anyone who you would have liked to

8 speak with prior to expressing the opinions in this

9 report that you were unable to speak with?

10 A. No. I don't think so, no.

11 Q. Since the time you have signed this report,

12 have you reviewed any deposition transcripts?

13 A. I have not.

14 Q. Since you signed this report, have you reviewed

15 any expert reports relevant to this matter?

16 A. No, I have not.

17 Q. Since you signed this report, have you had any

18 discussions with anyone other than Qualcomm attorneys

19 relevant to this matter?

20 A. No, I have not.

21 Q. Since you signed this report, have you reached

22 any opinions relevant to this matter that are not

23 expressed in the report?

24 A. No, I have not.

25 Q. Have you also provided a report in connection

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17

1 with Qualcomm's litigation against any other parties in

2 the last two years, other than the FTC that is?

3 A. Yes, I have.

4 Q. Which litigations?

5 A. Qualcomm against Apple.

6 Q. Where did that litigation take place?

7 A. It takes place in the United States.

8 Q. Is that the litigation that's currently ongoing

9 between Qualcomm and Apple in the United States?

10 A. Yes, it is.

11 Q. Did you provide an expert report in that

12 matter?

13 A. Yes, I did.

14 Q. What materials did you review in connection

15 with the expert report you provided in the Apple

16 litigation that are not listed in Exhibit-2?

17 MR. EARNHARDT: Dan, that's an -- that's an --

18 this -- this deposition isn't going to be about the

19 Apple case. I'm -- she can not answer that question.

20 A. And actually I don't remember all of it,

21 everything, but no, I can't answer.

22 Q. When you say you can't answer, is that because

23 you don't recall any materials that you reviewed in

24 connection with the Apple case that are not listed in

25 Exhibit-2?

18

1 A. Partly, yes. And partly because it's not a

2 question on Apple case.

3 Q. Well, I'd like to understand which one it is,

4 if that's okay. So sitting here today, do you recall

5 reviewing any deposition transcripts in connection with

6 the opinion you offered in the Apple matter that are

7 not listed in Exhibit-2 to your report?

8 A. Deposition transcripts, I don't recall that.

9 Q. Sitting here today, do you recall reviewing any

10 documents relevant to your opinions in the Apple matter

11 that you do not disclose in Exhibit-2 to your report in

12 this matter?

13 MR. EARNHARDT: Just let me object to that

14 question. It's a completely inappropriate question.

15 It's irrelevant to this case, it's irrelevant to this

16 report, and she -- and you can answer if you remember,

17 but I -- I -- I highly object to this line of

18 questioning.

19 A. But actually now sitting here this morning, I

20 must say I don't remember.

21 Q. Sitting here this morning, do you recall

22 conducting any discussions with anyone other than

23 Qualcomm attorneys relevant to the opinions you express

24 in the Apple matter that are not listed in Exhibit-2 to

25 this report, in this matter?

19

1 A. May I ask you to repeat the question?

2 Q. Sitting here today, do you recall having --

3 having any discussions with any individuals other than

4 Qualcomm attorneys that you relied on for your opinions

5 in the Apple matter that are not disclosed in Exhibit-2

6 to the report you offered in this matter?

7 MR. EARNHARDT: Object to the form.

8 A. I'm -- I don't recall discussions.

9 Q. You can't recall one way or the other or you

10 don't recall -- well, strike that.

11 Is the answer to the question no, you didn't

12 have any or you cannot recall one way or the other

13 whether you had discussions relevant to the opinions

14 you express in the Apple matter that are not contained

15 in Exhibit-2 to the report you submitted in this

16 matter?

17 MR. EARNHARDT: Object -- object to the form.

18 Someone can ask that in the Apple deposition.

19 A. I'm -- I usually don't discuss the work I'm

20 doing and I think it's confidential, so I shouldn't be

21 discussing it. There is only Professor Benabent with

22 whom I was authorized to have some discussions, but as

23 I said before, since everything is in English, it's not

24 very easy and convenient and I don't recall specific

25 discussions.

20

1 Q. So you don't recall one way or the other if

2 there are any materials relevant to the opinions you

3 express in the Apple case that are not listed in

4 Exhibit-2 to your report in this matter. Is that fair?

5 A. That is fair.

6 Q. On page 2 of your report, I'm looking under

7 Arabic numeral three, the second sentence. Is it fair

8 to state that your opinions in this matter are limited

9 to the nature of the obligations created when a patent

10 holder makes a FRAND commitment to ETSI?

11 A. Yes. That is what I have written and it's fair

12 to state this.

13 Q. So you aren't offering any opinion about any

14 obligations created when a patent holder makes a

15 commitment to a standards setting organization other

16 than ETSI. Right?

17 A. This is correct.

18 Q. Your report states on page 2 again, quote, the

19 FTC takes the position that ETSI FRAND commitments

20 create an obligation to grant licenses to the

21 manufacturers of baseband processors, i.e. to granted

22 licenses at the component level. Do you see that?

23 A. Yes, I do see that.

24 Q. And you cite paragraph 3C of the FTC's

25 complaints against Qualcomm for that proposition.

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21

1 Right?

2 A. Right.

3 Q. Paragraph 3C of the FTC's complaint against

4 Qualcomm doesn't say anything about ETSI, does it?

5 A. I do not recall that.

6 Q. Have you reviewed the FTC's complaint against

7 Qualcomm?

8 A. I don't remember.

9 Q. We don't need to introduce this as a --

10 A. Thank you.

11 Q. -- exhibit. Have you ever seen this document

12 before?

13 A. I don't remember it.

14 Q. You can't recall one way or the other? I'll

15 represent this is a redacted version of the FTC's

16 complaint against Qualcomm with the confidential

17 information redacted, but everything else is there.

18 A. I can't recall.

19 Q. Can you -- can you identify paragraph 3C of

20 this document?

21 A. Three C, yes.

22 Q. That paragraph doesn't say anything about ETSI,

23 does it?

24 A. Well, it mentions Qualcomm's FRAND commitments

25 doesn't it?

22

1 Q. Commitments is plural, correct?

2 A. Correct.

3 Q. That paragraph does not mention ETSI

4 specifically, does it?

5 A. But I've only given an opinion on ETSI's and I

6 haven't reviewed all those standard organization IPR

7 policy. For me, when Qualcomm's FRAND commitments is

8 mentioned, this is linked to ETSI.

9 Q. What is the telecommunications industry

10 association?

11 A. The telecommunication industry association?

12 Well, I -- I don't know.

13 Q. What is the Alliance for Telecommunications

14 Industry Solutions?

15 A. I don't know.

16 Q. What is the Third Generation Partnership

17 Projects?

18 A. That I've heard about. I'm not too sure.

19 Q. Does the Third Generation Partnership Project

20 impose a FRAND obligation on any participants in the

21 Third Generation Partnership Project?

22 MR. EARNHARDT: Object to the form, outside of

23 her expertise.

24 A. I do not know.

25 Q. Does the Alliance for Telecommunications

23

1 Industry Solutions impose a FRAND commitments on

2 Qualcomm?

3 A. Again, as I told you, I haven't reviewed any of

4 these policies and I do not know.

5 Q. You don't know one way or the other?

6 A. One way or the other, I don't know.

7 Q. You don't know one way or the other whether

8 Qualcomm made a FRAND commitment to the

9 Telecommunications Industry Association. Fair?

10 A. I do not -- I have been asked to give an

11 opinion on the FRAND commitment as began ETSI.

12 Q. So it's fair to state that you do not know one

13 way or the other whether Qualcomm made a FRAND

14 commitment to the Telecommunications Industry

15 Association. Right?

16 A. It is fair to -- to -- to say this because I do

17 not know what kind of other commitments Qualcomm may

18 have made.

19 Q. So on page 3 of your report, CX-0057-005, you

20 state under Arabic IV, quote, as mentioned above,

21 Qualcomm's FRAND commitments are governed by the ETSI

22 IPR policy.

23 Do you see that portion?

24 A. Yes, I do.

25 Q. Now, the only FRAND commitment you're referring

24

1 to in that sentence is Qualcomm's FRAND commitment to

2 ETSI. Right?

3 A. This is how I have understood what I'm -- I'm

4 writing. It's only to ETSI.

5 Q. So you are not expressing the view, in your

6 expert report, that Qualcomm's FRAND commitments to the

7 Telecommunications Industry Association are governed by

8 the ETSI IPR policy. Right?

9 A. Sorry, can you repeat the question?

10 Q. You are not expressing in your report the

11 expert opinion that Qualcomm's FRAND commitments to the

12 Telecommunications Industry Association are governed by

13 the ETSI IPR policy. Right?

14 A. This is correct. It's only related to ETSI.

15 Q. And you're not expressing the expert opinion

16 that Qualcomm's FRAND commitments to the Alliance for

17 Telecommunications Industry Solutions is governed by

18 the ETSI IPR policy. Right?

19 A. This is right also.

20 Q. You're not expressing the expert opinion that

21 the ETSI IPR policy is in any way relevant to

22 Qualcomm's FRAND commitments to the Alliance for

23 Telecommunications Industry Solutions. Fair?

24 A. It depends on what you mean by "in any way

25 relevant".

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For The Record, Inc.

7 (Pages 25 to 28)

25

1 Q. Have you reached the view that Qualcomm's FRAND

2 commitment to ETSI is relevant to Qualcomm's FRAND

3 commitment to the Alliance for Telecommunications

4 Industry Solutions?

5 A. No. I have not reached this view. But the

6 interpretation that is given of the words of the ETSI

7 IPR policy is given on the basis of the words of the

8 ETSI IPR policy. If the words are exactly the same in

9 a different context, I will give the same

10 interpretation. But I have not reached any such view

11 because as I told you before, I've only reviewed the

12 ETSI IPR policy and I am not familiar, in fact, I have

13 never seen the other -- the other IPR policies.

14 Q. So you have not reached the view in this matter

15 that the ETSI IPR policy is relevant to any commitment

16 Qualcomm has made to anyone except for ETSI. Is that

17 fair?

18 A. This is what I was telling you but I was also

19 telling you that the interpretation of the word that I

20 have made is standing on its own because of the words

21 of ETSI.

22 Q. So in your view, the ETSI IPR policy might be

23 relevant to a commitment Qualcomm made if the words

24 used in the commitment Qualcomm made are exactly the

25 same as the words used in the ETSI IPR commitment. Is

26

1 that fair?

2 A. I wouldn't say it because I haven't any idea of

3 the other IPR policy. I could not exclude it, but I

4 couldn't say that it is. I have not been asked to give

5 an opinion on this.

6 Q. On page 3, the next sentence after the sentence

7 we discussed in Arabic IV reads, quote, as such,

8 Qualcomm's FRAND commitments and any claims arising out

9 of an alleged breach of those commitments are governed

10 by French law.

11 Do you see that sentence?

12 A. I do.

13 Q. What does Qualcomm's FRAND commitments in that

14 sentence refer to?

15 A. In that sense, Qualcomm's FRAND commitments

16 refers to clause 6.1 of annex 6 of the IPR policy.

17 Q. And as used in that sentence, quote, Qualcomm's

18 FRAND commitments, end quote, does not refer to any

19 other FRAND commitment Qualcomm has made to any entity

20 other than ETSI. Fair?

21 A. I think I have answered this question already.

22 Yes, it is fair to say this.

23 Q. When you state, quote, any claims arising out

24 of an alleged breach of those commitments, what --

25 strike that.

27

1 When that sentence states, quote, any claims

2 arising out of an alleged breach of those commitments,

3 end quote. What claims other than claims in contract

4 law are you referring to in that sentence?

5 A. I will put the question a bit differently. I

6 am referring to claims which arise from the FRAND

7 commitment. And in order to say what claims are -- I

8 am referring to here, we have to discuss the analysis

9 under French law of the nature of the French

10 commitment.

11 Q. What claims are you referring to there?

12 A. I am referring to the claims that may arise out

13 of what we call in French law stipulation pour autrui,

14 stipulation for the benefit of third parties.

15 Q. When you say in this sentence, "any claims

16 arising out of an alleged breach of those commitments",

17 are you referring only to claims brought by alleged

18 third party beneficiaries of Qualcomm's FRAND

19 commitment?

20 A. I have given an opinion in the context when

21 there was litigation with third party beneficiaries.

22 So I was referring to this context. And in that

23 context, the claims arising out of an alleged breach of

24 the commitments are indeed the claims of third party

25 beneficiaries.

28

1 Q. So your opinion that claims arising out of an

2 alleged breach of Qualcomm's FRAND commitments to ETSI

3 are governed by French law, is limited to claims

4 arising in the context of litigation brought by alleged

5 third party beneficiaries. Is that fair?

6 A. No.

7 MR. EARNHARDT: Object to the form.

8 A. I think that was a misunderstanding here. What

9 is governed by French law is clearly said in clause 12

10 of annex 6 of the IPR policy. It is also reminded in

11 the -- the annex on the declaration forms which also

12 refer to French law. So I'm not restricting the scope

13 of French law to something which would be more limited.

14 Q. Maybe this is an easy way to go about it.

15 In this sense when you say claims arising out

16 of an alleged breach of Qualcomm's FRAND commitments to

17 ETSI, you're not addressing antitrust claims brought

18 under U.S. law. Right?

19 A. I have not been asked to give an opinion on

20 anti -- antitrust law.

21 Q. You're not addressing unfair competition claims

22 brought under any United States unfair competition law.

23 Right?

24 A. No. This is not the scope of my expertise.

25 I'm a contract lawyer.

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For The Record, Inc.

8 (Pages 29 to 32)

29

1 Q. You're not addressing claims for tortious

2 interference with prospective economic advantage

3 brought under United States law. Right?

4 A. Tortious interference with what?

5 Q. Prospective economic advantage?

6 A. No, I'm not addressing this.

7 Q. So you are not suggesting that an antitrust

8 claim based on Qualcomm's alleged breach of a FRAND

9 commitment made to ETSI is governed by French law.

10 Right?

11 MR. EARNHARDT: Object to the form.

12 A. I have not been asked to give an opinion on

13 this.

14 Q. You're not suggesting that any unfair

15 competition lawsuit based on Qualcomm's alleged breach

16 of a FRAND commitment made to ETSI is governed by

17 French law. Right?

18 A. My answer is the same again. I did not reflect

19 on this because I haven't been asked and I'm not an

20 antitrust lawyer so I would not give an opinion on

21 that.

22 Q. So it's fair that the interpretation of the

23 commitment that Qualcomm made to ETSI should, in your

24 view, be interpreted according to the principles of

25 French law, right?

30

1 A. Could I have the clause 12 which I mentioned?

2 I think what we need to do is stick to the wording of

3 the ETSI IPR policy and say exactly the same thing as

4 what is said about the scope of French law.

5 Q. I will hand you a documents we've marked

6 CX-7552-001. I believe this attaches -- it attaches

7 what we believe to be an accurate copy of the ETSI IPR

8 policy as of November 2011.

9 Please take whatever time you need to satisfy

10 yourself this is accurate as far as you can tell.

11 A. So I think we can stick to the meaning of the

12 clause 12, the policy shall be governed by the laws of

13 France.

14 Q. And this language appears at CX-7552-007 under

15 the Arabic numeral 12. Is that right?

16 A. This language appears here (indicating).

17 Q. You are looking at Page CX-7552-007, right?

18 A. Okay, okay. Yes.

19 Q. Okay. So you do not interpret that language to

20 mean that any antitrust claims based on Qualcomm's

21 alleged breach of this policy are governed by the laws

22 of France. Fair?

23 A. As I said before, I haven't reflected upon

24 this. What I -- my opinion is that French law governs

25 the stipulation for the benefit of third parties. When

31

1 you are asking me whether it goes beyond to antitrust

2 -- and antitrust claims and that, I would need more

3 time to reflect upon that.

4 Q. That's not an analysis you have conducted in

5 connection with the opinions you express in your report

6 in this matter. Fair?

7 A. That is not an analysis I have conducted, fair.

8 Q. Do you have expertise in American antitrust

9 law?

10 A. I have no expertise in American antitrust law.

11 Q. Do you have expertise in American intellectual

12 property law?

13 A. No expertise in American IPR law.

14 Q. Do you have expertise in how American courts

15 apply choice of law principles?

16 A. Not much. When I wrote my -- a long time ago

17 my thesis I did have a look at this question, but that

18 was more than 20 years ago. So I wouldn't say it's an

19 expertise which is still valid.

20 Q. And it's fair to state that in this matter, you

21 did not conduct an analysis of the body of law an

22 American court would apply to an antitrust claim based

23 on an alleged breach of ETSI's IPR policy. Right?

24 A. I'm sorry can you repeat? But I think I know

25 the answer, but to make sure.

32

1 Q. Sure. It's fair to state that in this matter,

2 you did not conduct an analysis of the body of law that

3 an American court would apply to an antitrust claim

4 based on an alleged breach of ETSI's IPR policy?

5 A. Yes, it's fair.

6 Q. Now you have not, in your report, cited any

7 authority supporting the proposition that a United

8 States court would apply French law when interpreting

9 the ETSI IPR policy. Is that fair?

10 A. This is fair.

11 Q. You have not cited in your report any authority

12 supporting the proposition that a Japanese court

13 sitting in Japan would apply French law to an

14 allegation that Qualcomm had breached the ETSI IPR

15 policy. Is that fair?

16 A. Yes. And I haven't said that a Chinese court

17 will apply French law. What I have said is that you

18 have in the ETSI rules of procedure a very clear

19 provision which says that the policy shall be governed

20 by the laws of France. Now, if a foreign judge wants

21 to apply another law, that's his problem, but the

22 policy says that it shall be governed by the laws of

23 France.

24 Q. When you say that that's the foreign judge's

25 problem, do you mean that a foreign judge -- strike

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(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

9 (Pages 33 to 36)

33

1 that.

2 When you say that's the foreign judge's

3 problem, you have not conducted an analysis of which

4 countries might apply a law other than the law of

5 France to a claim based on an alleged breach of ETSI I

6 -- ETSI's IPR policy. Right?

7 A. I have not conducted such an analysis. I have

8 not been asked to do it and it's not relevant to my

9 opinion.

10 Q. Taking a look at page one of your report, which

11 is CX-0057-003. There is a sentence immediately

12 foll -- immediately preceding footnote one. It says,

13 quote, licenses related to these patents form the basis

14 for the dispute at issue in the ND Cal action.

15 Do you see that sentence?

16 A. Yes, I do.

17 Q. What does "these patents" refer to in that

18 sentence?

19 A. Well, I think I have said it in the sentence

20 which immediately precedes this sentence, where I say

21 what I understand that Qualcomm is the owner of many

22 patents for which it has made recent commitments, and

23 of the IPR policy of ETSI to license fair, reasonable

24 and non-discriminatory terms. And the licenses related

25 to "these patents", refers to as many patents for which

34

1 it has made recent commitments.

2 Q. How many of those patents are there?

3 A. That, I do not know.

4 Q. How many of those patents were filed in

5 European countries?

6 A. I do not know.

7 Q. How many of those patents were issued by the

8 United States Patent and Trademark Office?

9 A. I have no idea.

10 Q. Which of these patents did ETSI -- strike that.

11 Which patents issued by the United States

12 Patent and Trademark Office does Qualcomm own that it

13 has not committed to license on FRAND terms in

14 accordance with ETSI's IPR policy?

15 A. This goes far beyond my expertise and I have no

16 idea.

17 Q. Which patents referred to in the sentence we've

18 been discussing on page 1, did Qualcomm commit to

19 license on FRAND terms in accordance with the policies

20 of any standards setting organization other than ETSI?

21 A. I do not know.

22 Q. How many of the patents you refer to in this

23 sentence did Qualcomm commit to license in accordance

24 with the FRAND commitments it made to standards setting

25 organizations other than ETSI?

35

1 A. How many patents? I have no idea.

2 Q. Do you know one way or the other if there are

3 any patents you refer to among, quote, these patents,

4 on page 1 of your report, that Qualcomm has not

5 committed to license in accordance with the

6 intellectual property policy of the International

7 Telecommunications Association?

8 A. I do not know.

9 Q. Do you know one way or the other if there are

10 any patents referred to among, quote, these patents, on

11 page 1, that Qualcomm has not committed to license in

12 accordance with the intellectual property policy of the

13 Alliance for Telecommunications Industry Solutions?

14 A. I do not know.

15 Q. So as far as you know, every single one of,

16 quote, these patents, you refer to on page 1 of your

17 report is also subject to a commitment that Qualcomm

18 made to a standards setting organizations other than

19 ETSI. Right?

20 MR. EARNHARDT: Object to the form.

21 A. I don't understand the question.

22 Q. Do you know one way or the other if there is a

23 single patent among, quote, these patents, you refer to

24 on page 1 of your report that Qualcomm has not also

25 committed to license on FRAND terms in accordance with

36

1 the intellectual property rights policy of a standards

2 setting organization other than ETSI?

3 A. I have no idea of what Qualcomm has done

4 regarding these patents and other standard

5 telecommunication organizations.

6 Q. That was not an analysis you felt it necessary

7 to conduct to express the opinions you have expressed

8 in your report. Right?

9 A. I am an expert of French contract law, so it

10 was not an analysis I felt necessary to conduct.

11 Q. The -- the opinions you express in your report

12 are not impacted one way or the other if Qualcomm has

13 committed to license all of its patents according to

14 the intellectual property rights policies of a

15 standards setting organization other than ETSI. Is

16 that fair?

17 A. The opinions I -- I give in my report are based

18 on French law and they're not impacted by all these

19 questions that you have raised which I have not

20 analyzed at all.

21 MR. EARNHARDT: We've been going about an hour.

22 Can we take a quick break?

23 MR. MATHESON: Yes, fine with me. Sure. If

24 that's okay with the witness.

25 THE VIDEOGRAPHER: We're now going off the

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For The Record, Inc.

10 (Pages 37 to 40)

37

1 record. The time is 10:00 o'clock.

2 (A recess was taken.)

3 THE VIDEOGRAPHER: We're now going back on the

4 record. The time is 10:08.

5 Q. Now your opinions in this matter required you

6 to develop an understanding of paragraph 6 of the ETSI

7 Intellectual Property Rights Policy. Right?

8 A. Right.

9 Q. At what -- in what year was paragraph 6 of the

10 ETSI Intellectual Property Rights Policy finalized?

11 A. You mean paragraph 6 of annex 6?

12 Q. Correct.

13 A. I do not know in what year it was finalized and

14 I do not know in what year ETSI rules of procedure were

15 finalized. The version I have here is one which dates

16 from November 2011.

17 Q. Is the version you have in front of you dated

18 November 2011 the same as the version that exists

19 today?

20 A. I need to read it to tell you but I believe so,

21 but I will -- I will check. (Brief review.)

22 It is the same as the one I have studied for my

23 report and I believe it is the same as the one that is

24 in force today. I haven't checked though, but I would

25 be surprised if it were different.

38

1 Q. When was the first time that the version of the

2 ETSI Intellectual Property Rights Policy paragraph 6

3 that is currently in effect came into effect?

4 A. I do not know.

5 Q. Was it before 2007?

6 A. I do not know. I couldn't answer this

7 question.

8 Q. How many times has paragraph 6 of the ETSI

9 Intellectual Property Rights Policy been amended since

10 it first came into effect?

11 A. Again, this is a question that I have not

12 studied and I do not know.

13 Q. When did Qualcomm first make a FRAND commitment

14 to ETSI relevant to Qualcomm's 3G patents?

15 A. I have no idea.

16 Q. When did Qualcomm first make a FRAND commitment

17 to ETSI relevant to Qualcomm's LTE patent?

18 A. Same answer. I don't know.

19 Q. So you don't know whether the version of the

20 Qualcomm -- strike that.

21 You don't know whether paragraph 6 of ETSI's

22 Intellectual Property Rights Policy that you studied is

23 the same as the version that was in effect when

24 Qualcomm first made a FRAND commitment to ETSI relative

25 to its 3g patents. Is that fair?

39

1 A. That is fair. I do not know.

2 Q. That was not information that was necessary for

3 to you assess in order to reach the conclusions you

4 express in your report. Right?

5 A. I think this is fair to say that it was not a

6 decisive element. Had it been important, I'm pretty

7 sure that Qualcomm's lawyers would have told me to look

8 and compare the different versions of article or clause

9 six.

10 Q. It's your understanding that Qualcomm does not

11 offer licenses to its standard essential patents at the

12 component level. Right?

13 A. Can you repeat this please?

14 Q. Do you understand what I mean when I say

15 component level?

16 A. Yes, I do.

17 Q. What do you understand that term to mean?

18 A. The term component is a -- it's a component.

19 It's one element as opposed to a full device.

20 Q. Is a baseband processor a component of a

21 handset?

22 A. I -- in my report, I have something on this and

23 I think it's fair to say. On page 2 of my report, I

24 say that the FTC takes the position that ETSI FRAND

25 commitments create an obligation to grant licenses to

40

1 the manufacturers of baseband processors. And then in

2 brackets, i.e., to grant licenses at the component

3 level. So I think the answer is there.

4 Q. Is it your understanding that Qualcomm refuses

5 to grant licenses to its standard essential patents to

6 the manufacturers of baseband processors?

7 A. My understanding is not exactly that one.

8 Q. How do you understand Qualcomm's policy

9 regarding licensing of standards essential patents to

10 the manufacturers of baseband processors?

11 A. Well, what I understand is that there is this

12 agreement on the interpretation of ETSI FRAND

13 commitment and the obligation it creates, and what I

14 cannot tell you because I haven't studied this, is

15 whether or not Qualcomm has already in the past granted

16 licenses at the component level. I -- I think it has a

17 consistent practice not to do it but then I haven't

18 studied all the contracts.

19 Q. So you don't know one way or the other whether

20 Qualcomm has granted licenses to its standard essential

21 patents at the component level in the past. Right?

22 A. This is not exactly what I said. I know that

23 there is a consistent practice not to do it. Now, if

24 on specific occasions and in specific contexts --

25 contexts it has or not, that I don't know.

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For The Record, Inc.

11 (Pages 41 to 44)

41

1 Q. How do you know that it is Qualcomm's

2 consistent practice not to grant licenses to its

3 standard essential patents at the component level?

4 A. I know this because I have been told so by

5 Qualcomm's lawyers and I have used this in my report

6 when I explained the role of practices.

7 Q. What do you mean when you say you used that in

8 the report when you explained the role of practices?

9 A. Well, in my report, when in -- when I deal with

10 the first question of interpretation, subsidiarily, I

11 deal with the question of the role of parties,

12 practices, and negotiations.

13 Q. So when you reached your expert opinion

14 regarding the role of Qualcomm's practices in

15 interpreting the FRAND commitment, you assumed, based

16 on information provided to you, that it has been

17 Qualcomm's consistent practice not to grant licenses to

18 its standard essential patents at the component level.

19 Is that fair?

20 MR. EARNHARDT: You can take time to review the

21 part of your report on industry practice if you need

22 to. This is not a memory test.

23 A. I had a discussion with an expert whose name is

24 Bertram Huber and it's recorded in the report.

25 Actually I didn't mention it before because it wasn't a

42

1 discussion on law, it was a discussion on practice.

2 And in my report I quote of some elements of the

3 discussion and I say it's written on page 12, that I

4 understand from my discussion with Bertram Huber that

5 there is an established practice of negotiating set

6 licenses for complete cellular devices.

7 Q. What did Mr. Huber tell you about Qualcomm's

8 consistent practice of refusing to grant licenses at

9 the component level?

10 A. No. It's not exactly that. He didn't tell me

11 about Qualcomm's consistent practice of refusing to

12 grant licenses at the component level. He told me

13 about Qualcomm's consistent practice of negotiating set

14 licenses for complete cellular devices.

15 Q. What does Mr. Huber know about Qualcomm's

16 practice of negotiating complete cellular licenses?

17 A. I do not know what Mr. Huber knows about this.

18 Q. Has Mr. Huber ever negotiated a complete

19 cellular license on behalf of Qualcomm?

20 A. I do not know if he has or if he has not.

21 Q. Has Mr. Huber ever been employed by Qualcomm?

22 A. I do not think so but I do not know about Mr.

23 Huber's life.

24 Q. Has Mr. Huber ever even seen a license

25 agreement negotiated between Qualcomm and any other

43

1 participant in ETSI?

2 A. You ask me questions I cannot answer. I do not

3 know.

4 Q. Other than the discussion with Mr. Huber you

5 just referred to, what other discussions have you had

6 that having informed your view on Qualcomm's practice

7 of refusing to negotiate licenses at the component

8 level?

9 A. I've had the discussion with Mr. Huber and with

10 Qualcomm's lawyers.

11 Q. You haven't spoken with anybody other than Mr.

12 Huber or attorneys from Qualcomm regarding Qualcomm's

13 practice of refusing to grant licenses at the component

14 level. Right?

15 A. I have not.

16 Q. You didn't list the discussion with Mr. Huber

17 in Exhibit-2. Right?

18 A. If you say so, it must be right.

19 Q. Why not?

20 MR. EARNHARDT: Take a look at Exhibit-2.

21 A. Why not? It's in the report. It's not a

22 written document. It was a discussion so that could be

23 a reason why, but by no means did I try to hide it. I

24 mean, it's -- it's clearly in the report.

25 Q. What other discussions other than the one with

44

1 Mr. Huber did you have that are relevant to your

2 opinions in this matter that are not listed in

3 Exhibit-2?

4 A. I think I've just told you that apart from Mr.

5 Huber and Qualcomm's lawyers, I had no other

6 discussions that are relevant for this report on this

7 matter.

8 Q. When did Mr. Huber tell you that Qualcomm began

9 its practice of refusing to license baseband processor

10 manufacturers to its standard essential patents at the

11 component level?

12 MR. EARNHARDT: Just to clarify that, when did

13 he tell her that or when he spoke to her, when did he

14 say what was the time it happened.

15 Q. Let's try this: On what date did Mr. Huber

16 tell you that Qualcomm refused to license baseband

17 processor manufacturers to its standard essential

18 patents at the component level?

19 MR. EARNHARDT: Just --

20 A. The question is odd.

21 MR. EARNHARDT: Just to clarify because I -- I

22 still think it's ambiguous and I'm not trying to be

23 disruptive, I just want to make sure, but are you

24 asking on what date she had the conversation with Mr.

25 Huber?

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For The Record, Inc.

12 (Pages 45 to 48)

45

1 Q. About this. Your report states you had a June

2 27th, 2018 discussion with Mr. Huber, right?

3 A. I'm sorry.

4 Q. Your report states you had a discussion with

5 Dr. Huber on June 27, 2018, right?

6 A. June or July?

7 Q. Your report states June 27?

8 A. June, yes. This is -- yeah.

9 Q. Did you have any discussions with Dr. Huber

10 other than with the discussion on June 27, 2018 in your

11 entire life?

12 A. In my entire life, yes, I did.

13 Q. Did you have any discussions other than the one

14 on June 27, 2018 with Dr. Huber that are relevant to

15 the opinions you express in your report?

16 A. No, I did not. It was in a different

17 litigation and the discussions I had with Mr. Huber

18 were not relevant to this report.

19 Q. What was the different litigation in which you

20 had discussions with Mr. Huber that were not relevant

21 to this report?

22 A. It was with Ericsson. In the case with

23 Ericsson.

24 Q. When did that case occur?

25 A. Three years ago or -- roughly.

46

1 Q. How -- all right. So you were employed by

2 Qualcomm approximately 2006?

3 A. Yes.

4 Q. And again three years ago in a case with

5 Ericsson?

6 A. In?

7 Q. A case with Ericsson?

8 A. Yes.

9 Q. Other than that, other than those two examples,

10 have you been employed by Qualcomm at other times?

11 A. From -- it lasted from 2006 to 2008 perhaps, so

12 it was -- and then I don't remember having been

13 employed by Qualcomm since then.

14 Q. So 2006 to 2008 you were employed in connection

15 with the Nokia litigation?

16 A. Yes, I was.

17 Q. What was the date range in which you were

18 employed with respect to the Ericsson litigation?

19 A. I have been employed on several occasions by

20 Ericsson. The date range would be difficult for me to

21 assess but perhaps 2010 to now.

22 Q. So when have you been employed by Qualcomm

23 other than the 2006 to 2008 Nokia litigation, and the

24 current litigation with the FTC and the current

25 litigation with Apple?

47

1 A. Can you say the beginning of the question

2 again?

3 Q. When have you been employed with Qualcomm other

4 than the 2006 to 2008 Nokia litigation, the current

5 litigation with the FTC, and the current litigation

6 with Apple?

7 A. When, do you mean in between 2008 and now?

8 Q. Yes. Were you ever employed by Qualcomm?

9 MR. EARNHARDT: When you say employed by

10 Qualcomm, you mean hired by -- as an expert?

11 MR. MATHESON: Yes.

12 A. Yes, I was not an employee. And I do not

13 remember having been employed by Qualcomm but I didn't

14 check.

15 Q. Okay. So from 2008 until the litigations that

16 are currently ongoing, you did not serve as an expert

17 for Qualcomm that you can recall?

18 A. I would have preferred to check, but that's

19 what I think, yes.

20 Q. When did you -- when were you first retained by

21 Qualcomm in FTC's litigation?

22 A. In this one? When was that? I mean it was a

23 few months ago or perhaps even -- yeah.

24 Q. April perhaps?

25 A. No.

48

1 Q. May? February?

2 A. I do not remember that.

3 Q. Where were you teaching at the time you were

4 first contacted by Qualcomm to serve as an expert in

5 this matter?

6 A. Was I teaching?

7 Q. Yes. Were you actively teaching a class on the

8 day, do you recall? I'm just trying to refresh your

9 recollection.

10 A. I don't have a good memory of dates of being

11 employed by Qualcomm. Is that very important? I can

12 check if you want with the retention letters, but I

13 really don't know now.

14 Q. When did you begin work on the report you

15 prepared in this matter?

16 A. I would say a couple of months ago.

17 Q. About how many hours did you spend on the

18 report prior to the date you signed it?

19 A. Prior?

20 Q. Prior to the time you signed it.

21 A. Prior --

22 Q. So not including deposition prep or anything.

23 A. And not including --

24 Q. Prior to signing the report, about how many

25 hours did you spend?

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For The Record, Inc.

13 (Pages 49 to 52)

49

1 A. Roughly speaking between 30 and 50.

2 Q. How many discussions did you have with

3 Dr. Huber? Was it just the one on June 27, 2018 that

4 are relevant to the opinions you express in this

5 report?

6 A. Yes. That was this one that was relevant to

7 the opinion.

8 Q. How long did that discussion last?

9 A. An hour or so.

10 Q. Did it take place in person?

11 A. No, it did not.

12 Q. On the phone?

13 A. On the phone.

14 Q. What time of day was it?

15 A. Sorry?

16 Q. What time of day?

17 A. What time? You mean 2:00 o'clock or 3:00

18 o'clock?

19 Q. Yeah. Was it morning, was it the evening?

20 A. It must have been -- I can't remember.

21 Q. Were you on your cell phone?

22 A. Yes, I was.

23 Q. Where were you sitting?

24 A. In my office in my house.

25 Q. You have an office in your home?

50

1 A. Yes, I do.

2 Q. Do you remember if it was light outside?

3 A. Sorry?

4 Q. Do you remember if it was daylight outside?

5 A. I think it was.

6 Q. Where is your home office located?

7 A. Wow. That's very private question. But it's

8 located in Saint Cloud, France, because I know there is

9 an Saint Cloud US also.

10 Q. How do you spell that?

11 A. Saint Cloud.

12 Q. Makes it easier for us. Is that close to

13 Paris?

14 A. Yes, it is. It's in between Paris and

15 Versailles, west of Paris. It's very nice.

16 Q. I'm sure it is.

17 A. You should come there.

18 Q. I would love to. So it was daylight in Saint

19 Cloud on June 27, 2018 when you spoke with Dr. Huber?

20 A. Yes.

21 Q. You signed your report on June 28, 2018?

22 A. Yes.

23 Q. How many hours did you spend on your report

24 between the discussion you had with Dr. Huber and the

25 time you signed your report?

51

1 A. I did work on the report between that, but not

2 more than five or in between five and 10 hours. Not --

3 perhaps a little less. I'm -- I don't remember because

4 June is a hard month for professors because of all the

5 work we have and but I remember having kept some time

6 free for this report, a couple of days, but I wouldn't

7 know how many hours precisely.

8 Q. What time of day was it when you signed your

9 report?

10 A. Oh, I have no idea.

11 Q. Was it daylight?

12 A. I cannot tell you.

13 Q. So it's fair to say you did the majority of the

14 work you performed on this report before you spoke with

15 Dr. Huber?

16 A. Yes, it's fair to say this. The majority of

17 the work is not on this point for me. The majority of

18 the work is on French law. I'm a French law expert.

19 I'm not an expert of Qualcomm's practices.

20 Q. Did Dr. Huber tell you that any other holders

21 of standard essential patents who made FRAND

22 commitments to ETSI refused to offer licenses to

23 baseband processor manufacturers for components?

24 MR. EARNHARDT: Again, you can refer to your

25 report if you need to. It's not a memory test.

52

1 A. It's not exactly the wording he has used. It's

2 not the way the discussion went. And the discussion

3 went on a more -- how do you say -- positive perhaps

4 line. What he told me is that there is an established

5 practice of negotiating set standard essential patent

6 licenses for complete cellular devices -- complete

7 cellular devices.

8 Q. Which -- oh sorry. I didn't mean to cut you

9 off. I thought you were done.

10 A. Okay. And he also told me that it is a

11 long-standing practice and that it has been used in the

12 mobile communication industry for a long time, but he

13 didn't mention other companies who use it. But what I

14 understood from the conversation is that it's not only

15 Qualcomm who has this practice.

16 Q. Did he identify any other holder of standard

17 essential patents other than Qualcomm that has this

18 practice?

19 A. I do not remember him identifying specifically

20 another company, no.

21 Q. Did you ask him which other companies licensed

22 according to Qualcomm's practice?

23 A. I did not. I relied on him saying it's a

24 long-standing practice in the industry.

25 Q. Did you ask him when that practice began?

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53

1 A. No, I did not.

2 Q. Did you ask him if the practice was the same

3 for CDMA standards as for standards promulgated by

4 ETSI?

5 A. No, I did not.

6 Q. Did you ask him if Ericsson licensed at the

7 component level?

8 A. No. I didn't ask him.

9 Q. Sitting here today, do you know whether

10 Ericsson licensed at the component level?

11 A. I do not know whether Ericsson licenses at the

12 component level, but what I know is that it's a -- this

13 long-standing practice of licensing only at the device

14 level is used the mobile communication industry

15 including Ericsson.

16 Q. And you know that -- strike that.

17 How do you know it includes Ericsson?

18 A. Well, I've done some expert reports for

19 Ericsson and I -- well, I wasn't really asked to opine

20 on these questions, but I remember that they agree that

21 it is a long-standing practice of licensing at this

22 device level.

23 MR. EARNHARDT: Yeah. I just want to be

24 careful that we --

25 THE WITNESS: But yeah.

54

1 MR. EARNHARDT: -- we don't ask her to disclose

2 confidential information she may have learned having

3 been employed as an expert by Ericsson.

4 Q. Do you know whether Ericsson has licensed

5 Motorola at the component level?

6 A. I do not know.

7 Q. Do you know whether Ericsson licensed Qualcomm

8 at the component level?

9 A. I do not know what kind of agreements they have

10 between Qualcomm and Ericsson.

11 Q. Do you know whether Ericsson has licensed

12 Alcatel-Lucent at the component level?

13 A. I do not know.

14 Q. Do you know whether Alcatel-Lucent has licensed

15 Ericsson at the component level?

16 A. I do not know the practice of licensing by

17 Ericsson.

18 Q. Do you know whether Motorola has licensed

19 Ericsson at the component level?

20 A. No, I do not know.

21 Q. Do you know whether Motorola has licensed

22 Qualcomm at the component level?

23 A. Again, I do not know.

24 Q. Do you know whether AT&T has licensed Qualcomm

25 at the component level?

55

1 A. No, I do not know.

2 Q. Do you know whether Samsung has licensed

3 Qualcomm at the component level?

4 A. I do not know but we could also draw a list of

5 all the cases where license has not been at the

6 component level.

7 Q. Do you know whether Qualcomm licensed Siemens

8 at the component level?

9 A. I do not know.

10 Q. Do you know whether Qualcomm licensed VLSI at

11 the component level?

12 A. Again, I do not know.

13 Q. You don't have any information regarding the

14 existence or nonexistence of a practice of licensing at

15 -- licensing at the component level other than the

16 information provided to you by Dr. Huber and Qualcomm's

17 lawyers. Right?

18 A. I think there is a misunderstanding here.

19 Dr. Huber did not say that there was never any

20 licensing at the components level. What he said is

21 what I have written in my report. There is an

22 established practice of negotiating set licenses for

23 complete cellular devices. But an established practice

24 does not mean entire full practice which would mean

25 that any other practice would be rejected.

56

1 Q. On what date did this practice become

2 established?

3 A. I did not ask Dr. Huber.

4 Q. What percentage of holders of standard

5 essential patents, in your view, would have to license

6 at the component level in order to demonstrate that

7 Dr. Huber is wrong?

8 MR. EARNHARDT: Objection.

9 A. This is not a question I can answer. I'm an

10 expert in French law.

11 Q. What did you understand Dr. Huber to mean when

12 he told you there was a, quote, established practice?

13 A. I understood established as having started some

14 time ago and being used by many actors.

15 Q. What is the latest date on which a practice

16 could be established and still qualify as having been

17 established some time ago with respect to licensing in

18 mobile communications?

19 A. It's not possible to give a latest date. An

20 established practice needs to have been going on for

21 some time, and I understood this practice has been

22 going on for some time, but no date is specified and

23 needs to be specified to establish an established

24 practice.

25 Q. You say that you understand the practice has

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57

1 been going on for some time, what do you mean by "some

2 time"? How many years?

3 MR. EARNHARDT: And again, you can look at your

4 report if you need to -- if you need to refresh your

5 recollection.

6 A. Yes, I do need to refresh my recollection and I

7 don't remember having given a number of years.

8 MR. EARNHARDT: He's asking you about the part

9 of industry practice.

10 MR. MATHESON: You can stop coaching the

11 witness any time. My question is clear, it didn't

12 refer to her report. I referred to exactly the words

13 she used. So please, stop coaching, stop interrupting.

14 She doesn't need your help, she's a very smart lady.

15 MR. EARNHARDT: I understand that. But you're

16 asking her --

17 MR. MATHESON: All right. Please stop talking.

18 MR. EARNHARDT: I'm not going to stop talking.

19 You're asking her to recall about --

20 MR. MATHESON: We're going to suspend this

21 deposition if you keep referring to her report

22 needlessly. I didn't ask her anything about her

23 report. I asked her what she meant when she used the

24 words "some time".

25 MR. EARNHARDT: And that is addressed in her

58

1 report, Dan. If you -- if you want her to --

2 MR. MATHESON: Stop coaching.

3 MR. EARNHARDT: I'm not --

4 MR. MATHESON: Let her answer the questions.

5 All right.

6 MR. EARNHARDT: If the question is not about

7 her report, it's not an appropriate question and if it

8 is, it's not a memory test.

9 MR. MATHESON: Will you please read back the

10 question.

11 (The requested portion was read.)

12 A. Once again, I do not remember having given a

13 specific number of years. What I said that -- as I

14 said before, I understand from my discussion with

15 Bertram Huber that there is an established practice of

16 negotiating set licenses for complete cellular devices.

17 And a few lines after, I add that -- the fact that the

18 long-standing practice of licensing only at the device

19 level has been used since the mobile communications

20 industry started, is strong evidence of the intention

21 on the part of the ETSI IPR committee at the time of

22 the policies's drafting to impose the ETSI FRAND

23 commitment only at the device rather than at the

24 component level. So it's not directly an answer to

25 your question but I think the element of time is here,

59

1 since the mobile communications industry started.

2 Q. Okay. About five minutes ago you said and I,

3 quote, I understood this practice has been going on for

4 some time. What did you mean when you said "this

5 practice has been going on for some time"? How many

6 years did you mean when you said "some time"?

7 A. When -- when I said some time, perhaps it's a

8 language question. I -- I didn't mean any amount of

9 years. I had in mind exactly what I have read, since

10 the mobile communication industry started.

11 Q. When did the mobile communications industry

12 start?

13 A. And this is precisely why I can't tell you for

14 how many years because it's difficult for me. I'm not

15 an expert on mobile communication industry. I myself,

16 of course, use a cell phone and I sort of remember when

17 it started but when exactly is it started for

18 companies, that, I do not know.

19 Q. But you understand that the practice you're

20 referring to started at the same time the mobile

21 communications industry started. Right?

22 A. Now I'm cautious that there's no

23 misunderstanding. What I understand is that this

24 long-standing practice of licensing only at the device

25 level has been used since, indeed, this industry

60

1 started.

2 Q. When you say it has been used, you mean that

3 some licensees have licensed only at the device level

4 since the industry started. Right?

5 A. This is not what I have written and this is not

6 what I understood from Dr. Huber.

7 Q. You don't understand sitting here today that

8 all holders of standard essential patents have licensed

9 only at the device level since the industry started.

10 Is that fair?

11 A. What I understood is that a majority has

12 licensed only at the diverse -- at the device level.

13 Q. So sitting here today, it's your understanding

14 that a majority of the holders of standard essential

15 patents license only at the device level and do not

16 license at the component level with respect to their

17 standard essential patents. Is that fair?

18 A. I have not said this and in your question here

19 you add only. I have not said this. I have said that

20 it's been a long-standing practice but this does not

21 exclude completely the fact that in some situations you

22 may deviate from a practice. A long-standing and -- or

23 an established practice does not need to be the only

24 practice.

25 Q. Okay. Well you said, quote, I understood that

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61

1 a majority has licensed only at the device level.

2 A. Did I say only?

3 Q. Yes.

4 A. Well, then I shouldn't have said only because

5 what I mean is that this was the -- the main practice,

6 not the sole practice.

7 Q. So you understand that a majority of the

8 holders of standard essential patents license at the

9 device level, but you don't know how many of those also

10 license at the component level. Is that fair?

11 A. Yes. That is fair.

12 Q. Did you ask Dr. Huber whether the holders of

13 standard essential patents who license at the device

14 level also license at the component level?

15 A. I did not ask him because it was very clear in

16 the discussion I had with him that there was an

17 established practice which could, under French law,

18 constitute a usage or established practice and that was

19 sufficient. So I wasn't -- my role is not to

20 investigate on these points. I'm not an expert in

21 this. And I rely on Dr. Huber's assertion that there

22 is an established practice which started when the

23 mobile communication industry started. And I did not

24 ask him how many times there have been deviations from

25 this practice because it's not a matter of

62

1 quantification of the deviations. What is important is

2 that there is a practice that started from the very

3 beginning and it is largely followed and therefore it

4 is -- well, it can be considered a usage.

5 Q. So if Dr. Huber were to call you tomorrow and

6 change his assertion that there was an established

7 practice which started when the mobile communication

8 industry started, that would change your view regarding

9 industry practice. Right?

10 A. Regarding industry practice? You mean if

11 Dr. Huber called me and said what I've said is wrong,

12 and in fact the practice is to license at the component

13 level, I was completely wrong. And then you ask me if

14 this will change my view? I think it would change my

15 view if it completely changed his view, but it will

16 change my view only on what constitutes industry

17 practice. And it will not change my view on other

18 points which are more important that I developed in my

19 report.

20 Q. Well, industry practice is relevant to

21 understanding the intentions of parties to a contract

22 in some circumstances. Right?

23 A. In some circumstances it may be important.

24 Q. Where the language of a contract is ambiguous

25 and the parties's intent cannot be ascertained solely

63

1 from the language of the contract, industry practice

2 can be important. Is that fair?

3 A. Yes. Industry practice and also all the

4 elements. And so it's only one among other elements

5 that is important. And it is only important when the

6 language of the contract has some ambiguity.

7 Q. And the only information you have regarding

8 industry practice with respect to licensing at the

9 component level comes from Dr. Huber. Right?

10 A. Yes, it does.

11 Q. I've never tried a case in French court. If a

12 French judge was attempting to interpret this contract,

13 how would they go about it? Would they take live

14 testimony regarding industry practice, would they

15 accept declarations, what's the normal course if a

16 French judge is trying to resolve a dispute about the

17 meaning of the ETSI IPR policy and needed to consider

18 industry practice?

19 A. Well, I could sit here for a long and give you

20 a French law class on procedure. It's so different.

21 You can't imagine, you would be surprised. There are

22 no experts, no testimony, no oral testimony. The

23 lawyers present their conclusion and then the French

24 court will make his opinion and it's a written

25 procedure and it's not comparable at all. What I can

64

1 say to be more precise is that the most important and

2 foremost element would be the contract itself, and the

3 terms of the contract.

4 Q. If a French judge felt the need to understand

5 industry practice in the context of interpreting the

6 ETSI IPR policy, the French judge wouldn't take any

7 live testimony from witnesses. Is that right?

8 A. I don't think he would.

9 Q. How old a French judge determine the

10 credibility of Dr. Huber and a witness who said exactly

11 the opposite with regard to the supposed practice of

12 licensing at the component level?

13 A. Unfortunately I've never sat as a judge, and

14 this is a tough question. The only experience I have

15 from my work is that the very same question can be

16 asked as regards foreign law. When parties have to

17 bring the contents of foreign law, one party does --

18 says something, the other party says the opposite and

19 the judge has to decide by himself.

20 Q. But you don't have -- strike that.

21 What Dr. Huber told you regarding the industry

22 practice with respect to component level licensing,

23 that was based on his observations during his time at

24 ETSI, right? Things that he saw?

25 A. He didn't tell me what was the basis, but it's

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65

1 not only things that he saw, perhaps it's also the way

2 things have been negotiated and I don't -- I do not

3 know what is the basis of his information. All I know

4 is that he's a credible expert, he has long experience

5 and I've been told that I could trust him and it's not

6 the core of -- once again, it's not the core of my

7 opinion, not at all.

8 Q. Who told you you could trust Dr. Huber?

9 A. Well, actually it's implicit telling by

10 organizing this call so that he will give me elements

11 that I can put in my report on industry practice. I

12 mean, I couldn't imagine a Qualcomm's lawyers

13 organizing this with somebody I could not trust.

14 Q. So you trusted Dr. Huber because Qualcomm's

15 lawyers put you on the phone with him; is that right?

16 A. Because first of all, I know he is an expert on

17 these questions and a credible expert who has long

18 experience and also because it was choice of Qualcomm's

19 lawyers who choose who to trust.

20 Q. Who is Carl Himes Rosenbrook?

21 A. I think he is the expert for the FTC.

22 Q. What did he offer an expert opinion on?

23 A. I think he disagrees with Dr. Huber.

24 Q. Do you think that Carl Himes Rosenbrook has any

25 information relevant to the existence of a practice of

66

1 component level licensing?

2 A. I have no idea of the kind of information he

3 has.

4 Q. You have never spoken with Carl Himes

5 Rosenbrook?

6 A. Never.

7 Q. Never read any reports he prepared?

8 A. I didn't read the -- the report at.

9 Q. Who is Roger Tolfrey?

10 A. I do not know.

11 Q. Do you know if he participated in ETSI?

12 A. I do not know.

13 Q. Do you know whether his employer offered to

14 make licenses to its alleged standard essential patents

15 available at the component level?

16 A. His employer? Sorry, can you?

17 Q. Yeah. Do you know if his employer?

18 A. Whose employer?

19 Q. Roger Tollbrooks -- I'm sorry. Roger

20 Tollfrey's?

21 A. But I don't know who -- who is the employer of

22 this Roger.

23 Q. Who is George Graff?

24 A. I do not know.

25 Q. He was employed by Alcatel at one time. Right?

67

1 A. I do not know.

2 Q. He was also employed by SEI at one time.

3 Right?

4 A. I do not know.

5 Q. Do you know whether SEI offered to make

6 available licenses to its ETSI standard essential

7 patents available at the component level?

8 A. I do not know.

9 Q. Have you ever met Dr. Huber in person?

10 A. Yes, I have.

11 Q. Was that in 2018?

12 A. No, it wasn't.

13 Q. Have you ever asked Dr. Huber how much money

14 he's been paid by Qualcomm over the course of the year?

15 A. I would never ask such a question. It's not in

16 the French mentality.

17 Q. Isn't it relevant to your determination of his

18 credibility?

19 A. Not at all.

20 Q. Do you know if Dr. Huber has ever been

21 convicted of perjury?

22 A. What?

23 Q. Do you know if he's ever perjured himself?

24 A. No, I do not know.

25 Q. You have no idea one way or the other whether

68

1 Dr. Huber has ever made a false statement under oath?

2 A. I have no idea.

3 Q. That was not relevant to your determination of

4 whether you should credit the representations Dr. Huber

5 made to you in this matter. Right?

6 A. I have no idea of this.

7 Q. Which companies -- strike that.

8 How many people were involved in drafting the

9 ETSI IPR policy that is relevant to your opinions in

10 this matter?

11 A. That, I do not know. I believe quite a lot

12 because it's been -- well, I do not know.

13 Q. How many of those individuals have you spoken

14 with in the course of reaching your opinions in this

15 matter?

16 A. How many?

17 Q. Of those individuals --

18 A. Who drafted the policy?

19 Q. -- have you spoken with -- in the course of

20 reaching your opinions in this matter, how many

21 individuals involved in drafting the ETSI IPR policy

22 have you spoken with?

23 A. Apart from Dr. Huber, I -- I have not.

24 Q. You have not spoken with anyone who was

25 involved in drafting the ETSI IPR policy other than

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69

1 Dr. Huber. Right?

2 A. I do not remember, so to my knowledge sitting

3 here now, I would say that I have not.

4 Q. I'm not trying to trick you. As far as I know,

5 you've never. Sitting here one way or the other, as

6 far as you know?

7 A. Now I'm cautious because perhaps, you know -- I

8 don't think -- as far as I know and as far as I

9 remember, I have not.

10 Q. How long did it take to draft the ETSI IPR

11 policy that is relevant to your opinions in this

12 matter?

13 A. I do not know.

14 Q. How many meetings took place over the course of

15 drafting the ETSI IPR policy that's relevant to your

16 opinions in this matter?

17 A. I wasn't asked to look at that and I do know.

18 Q. Dr. Huber provided you no information regarding

19 how many meetings were involved in drafting the ETSI

20 IPR policy; is that right?

21 A. I don't remember having been provided with such

22 information by Dr. Huber.

23 Q. One circumstance in which industry practice can

24 be relevant to determining party's intent is if a

25 dispute involves a question that is not able to be

70

1 resolved based on the plain language of the contract.

2 Right?

3 A. I think this is correct.

4 Q. And one circumstance in which a question might

5 not be able to be resolved based on the plain language

6 of the contract is if the parties to the contract had

7 no meeting of the minds regarding the term. Right?

8 MR. EARNHARDT: Object to the form.

9 A. And I did not understand. Had no meaning?

10 Q. No meeting. I will rephrase it.

11 The important question in interpreting a

12 contract under French law is the intent of the parties.

13 Right?

14 A. This is right.

15 Q. The party's intent should be given effect

16 regardless of the literal reading of the contractual

17 terms. Right?

18 MR. EARNHARDT: Object to the form.

19 A. This is not right.

20 Q. What would a French court upon French law do if

21 the parties to a contract had not anticipated a

22 particular circumstance would arise? How would that

23 court determine what the party's intent was?

24 A. Then he will have to interpret the intention of

25 the parties.

71

1 Q. The plain language of the contract might be

2 relevant to that interpretation. Right?

3 A. Definitely. The plain language of the contract

4 is very relevant.

5 Q. What if the parties never anticipated the plain

6 language of the contract would apply to the unforeseen

7 circumstance?

8 A. Then, as I said, there would be a question of

9 interpretation of the intention of the parties.

10 Q. And what would form the basis to interpret the

11 intention of the parties?

12 A. Under French law, to interpret the party's

13 intention the judge has some freedom to look at a wide

14 range of elements. We have already mentioned industry

15 practice. We can also mention further discussions that

16 the parties may have had, even subsequent to the

17 contract. And also other external elements. Perhaps

18 in order to better answer, it would be good to refer to

19 the quote again of Benabent as regard interpretation of

20 the contract. Sorry, it takes me a little while to

21 find it. So it's on page 5. And under French law

22 contractual interpretation is done and I quote him now,

23 in concreto, and we sometimes call it a subjective

24 interpretation that is to say it was a search for the

25 intent that the parties themselves may have had, and

72

1 not in abstracto, by that which form by another

2 reasonable person in the same situation. And therefore

3 when the judge has to search for the party's intent,

4 the -- as I said in my report, the party's negotiation

5 history is important. And if it were an ordinary

6 contract, the French court will, for instance, look at

7 the pre-contractual documents, but it could also look

8 at other documents to clarify the party's intent. And

9 this is well admitted by all authors. I have quoted

10 Benabent, I have quoted also Terre, Simler, Lequette.

11 There's no discussion on this that the court may look

12 at external elements, in the context of ETSI, he -- the

13 court could look, for instance, at the general

14 assembly, the decision of the committees, or other

15 elements that it would consider relevant.

16 Q. When you say look at the general assembly, what

17 are you referring to?

18 A. I'm referring and I think I quote them and I

19 have them in the annex, there has been some minutes,

20 summary minutes at least, of the general assembly and

21 so this is typically the kind of elements that the

22 courts, a French court, could look at. And in my

23 report on page 12, I mention it. And that's also

24 footnote 42 where I refer to them, where I say that

25 ETSI's general assembly has repeatedly rejected

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73

1 proposals to impose prohibitions on particular

2 practices.

3 Q. Other than the material you cite in footnote

4 42, what other general assembly materials have you

5 reviewed in connection with the opinion you offer in

6 this matter?

7 A. General assembly materials? I don't remember

8 having reviewed other than these ones. They're quite

9 long minutes already.

10 Q. These minutes from 2003?

11 A. Are they all from 2003? I'm not too sure about

12 the date. It's not obvious to understand with the

13 references.

14 Q. And you never listed these materials relied

15 upon. Right?

16 A. Sorry?

17 Q. You never listed these in Exhibit-2, amongst

18 the materials you relied upon?

19 MR. EARNHARDT: They're --

20 A. Yes, I did. I did. Look at the last part of

21 other, I think these other materials --

22 Q. Those are the minutes, okay. So other than

23 these minutes, you can't recall reviewing any others

24 that were relevant to the opinions you offer in this

25 matter?

74

1 A. I can't recall and I didn't need to because

2 this -- this was to show that under French law, it will

3 be possible for a judge to refer to elements which are

4 posterior to the contract making, to the first time

5 when the policy was drafted, in order to interpret the

6 policy.

7 Q. Now, the significance you ascribe to these

8 minutes is that in these minutes ETSI rejected

9 proposals that would have prohibited royalty free cross

10 license, required grant backs of rights to

11 improvements, and required licensing certain regions of

12 the globe at different -- strike that.

13 I'm having trouble interpreting your footnote

14 here. So one importance you ascribe to these minutes

15 is that they contain an indication that in 2003, ETSI

16 rejected a proposal that would have prohibited royalty

17 free cross licenses. Right?

18 A. Well, I quoted this minutes on this part, yes.

19 Q. Okay. And another importance you ascribe to

20 these minutes is that in 2003, ETSI rejected a proposal

21 that would have required grant backs of rights to

22 improvements. Right?

23 A. I'm -- I'm not too convenient with the

24 expression the importance I ascribe. I don't ascribe

25 importance as such to these precise elements. And it's

75

1 more important to look at the sentence in the plain

2 text which says that the general assembly of ETSI has

3 rejected, repeatedly, proposers to impose prohibitions

4 on particular practices. And I quote this and there

5 may be others. I haven't reviewed everything, but I

6 quote this as examples of the fact that ETSI general

7 assembly is reluctant to impose prohibitions on

8 particular practices.

9 Q. So one practice that ETSI rejected a proposal

10 to prohibit is royalty free cross licensing. Right?

11 A. I mean, you are taking this from the footnote.

12 Yes.

13 Q. Another proposal ETSI rejected would have

14 required grant backs of rights to improvements. Right?

15 A. Yes. That is what is written.

16 Q. And a third proposal that ETSI rejected would

17 have prohibited licensing certain regions of the globe

18 at different rates from those charged from other

19 regions. Right?

20 A. That is written in the footnote.

21 Q. Other than these three practices, which

22 proposals to impose prohibitions has ETSI's general

23 assembly rejected?

24 A. I do not know of all the proposals that have

25 been rejected. Having looked at these minutes and only

76

1 at these minutes, I remember that there has been

2 discussion on the clause 6.1 and trying to clarify what

3 the FRAND commitment is and what it means. And I

4 remember, but if you want me to send more I will need

5 to look at the minutes. That these discussions were

6 quite long, there were diverging views and finally the

7 language was not changed. What I want to say when I

8 quote this is that's ETSI's general assembly has

9 repeatedly refused to impose prohibition on particular

10 practices because it's not the purpose of ETSI to do

11 that.

12 Q. It's not the purpose of ETSI to prohibit

13 particular practices. Is that the opinion you're

14 expressing in this matter?

15 A. Well, to impose new prohibition on particular

16 practices. The purpose of ETSI, and it's not my

17 opinion, it's what is said in the ETSI policy. It's

18 clearly stated in annex 6 clause 3, the policy

19 objectives of ETSI. And I can read it. ETSI's

20 objective is to create standards and technical

21 specifications that are based on solutions which best

22 meet technical objectives of the European

23 telecommunications sector as defined by the general

24 assembly. In order to further this objective, the ETSI

25 policy seeks to reduce the risk to ETSI, members and

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77

1 others applying ETSI standards and technical

2 specifications that investment in the preparation,

3 adoption, and application of standards could be wasted

4 as a result of an essential IPR being unavailable. In

5 achieving these objectives, and I think this is

6 important, the ETSI IPR policy seeks a balance between

7 the needs of standardization for public use in the

8 field of telecommunications and the rights of the

9 owners of IPRs.

10 And then you have 3.2, IPR holders whether

11 members of ETSI and their affiliates or third parties,

12 should be adequately and fairly rewarded for the use of

13 their IPRs.

14 THE REPORTER: Should be?

15 THE INTERPRETER: Adequately.

16 A. Sorry for my pronunciation.

17 Reward -- should be rewarded for the use of

18 their IPRs in the implementation of standards and

19 technical specifications.

20 The purpose of ETSI is not to interfere with

21 the commercial terms of the parties. When I mean

22 parties, I mean parties to a license contract.

23 Q. So are these minutes you cite here in footnote

24 42 among the pre-contract documents that a court might

25 consider when attempting to construe the ETSI IPR

78

1 policy?

2 A. I don't think they are pre-contractual, I would

3 say that they come after.

4 Q. Which pre-contractual documents have you

5 reviewed that a court would consider relevant when

6 construing the ETSI IPR policy?

7 A. What do you mean by pre-contractual documents?

8 That will be before the ETSI policy is drafted?

9 Q. What is a pre-contractual document as you used

10 the term?

11 A. A pre-contractual document in the normal

12 contract setting, is usually a document that may be

13 used in pre-contractual negotiations between the

14 parties. So you may have discussions, you make change

15 letters before the contract, and all this will be

16 pre-contractual. Once the contract is signed, you are

17 in the contractual phase. Now with ETSI, things are

18 slightly different. It's not a typical contract

19 between two private parties that is negotiated between

20 two parties. So things are different and I think what

21 is most relevant and what the judge will take into

22 account is what has been said subsequently to the

23 drafting of the policy and the fact that the policy has

24 not been changed or that it has been changed by the

25 general assembly is, of course, very relevant. So it's

79

1 not pre-contractual in the sense that the policy had

2 been already established.

3 Q. So you haven't reviewed any pre-contractual

4 documents related to the ETSI IPR policy; is that

5 right?

6 A. I didn't know -- I didn't need to review these

7 pre-contractual documents.

8 Q. So the answer is no, you have not reviewed any

9 pre-contractual documents relevant to the IPR?

10 A. To my knowledge I have not, no.

11 Q. And the only post contractual documents you've

12 reviewed relevant to ETSI's IPR policy are the minutes

13 noted in footnote 42; is that right?

14 A. I think you are right, yes. I don't remember

15 any other documents relating to ETSI's drafting of IPR

16 policy.

17 Q. And nothing in the documents cited in footnote

18 42 is relevant to the practice of licensing essential

19 -- standard essential patents at the component level.

20 Is that fair?

21 MR. EARNHARDT: Object to form.

22 A. This is not the way I would put it. Everything

23 is relevant. Everything is relevant to what I am

24 trying to explain. And what I am trying to explain and

25 I repeat it is that the general assembly is very

80

1 reluctant and rejected proposals to impose prohibitions

2 on particular practices. One of these prohibition

3 would be to prohibit the practice of granting licenses

4 at the device level. Or, in other words, impose a

5 practice of granting licenses only at a component

6 level. This is the kind of thing that obviously -- and

7 this reverts from these elements that I have reviewed,

8 the general assembly would be very reluctant to do and

9 has not done to my knowledge.

10 Q. In the meeting minutes you cite in footnote 42,

11 did anyone propose that ETSI should require a practice

12 of granting licenses at the component level?

13 A. I don't know if you have seen these minutes.

14 Each of them is a couple of pages long, they are very

15 dense. I would need to review them all over again to

16 give you the answer.

17 Q. So as far as -- sorry.

18 (Speaking at the same time.)

19 Q. As far as you can recall, there is no

20 discussion in these meeting minutes you refer to in

21 footnote 42?

22 A. I wouldn't -- I wouldn't even say that.

23 MR. EARNHARDT: Just don't talk over each

24 other. Let him finish the question --

25 THE WITNESS: Sorry.

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81

1 MR. EARNHARDT: -- before you start.

2 THE WITNESS: Sorry.

3 Q. So as far as you can recall sitting here today,

4 nothing in those meeting minutes is relevant to a

5 proposal - strike that.

6 As far as you can recall sitting here today,

7 these meeting minutes do not explicitly address a

8 proposal to require licensing at component level. Is

9 that fair?

10 A. I cannot say that. I do not recall well

11 enough. I remember it's long, it's technical, and I

12 remember that I skipped some parts which did not seem

13 relevant, so I cannot tell you whether or not this was

14 in the minutes.

15 Q. So you don't know one way or the other if these

16 meetings minutes explicitly address a proposal to

17 require licensing at the component level. Is that

18 fair?

19 A. What I know from what I remember is that it was

20 not the main and foremost topic of one of these minutes

21 because I think I would then remember that.

22 Q. Do you know if the general assembly of ETSI has

23 ever explicitly addressed a proposal to require

24 licensing at the component level?

25 A. I do not know.

82

1 MR. EARNHARDT: Is now a good time for another

2 short break?

3 MR. MATHESON: Sure.

4 THE VIDEOGRAPHER: We will go off the record.

5 The time is 11:21.

6 (A recess was taken.)

7 THE VIDEOGRAPHER: On the record. The time is

8 11:36.

9 BY MR. MATHESON:

10 Q. So in a disagreement over the intent of the

11 parties cannot be resolved solely based on the clear

12 and unambiguous language, external sources can be

13 helpful in discerning the intent of the parties, right?

14 A. This is what I have written, yes.

15 Q. One such external source can be the content to

16 pre-contractual negotiations?

17 A. Yes, indeed.

18 Q. And one external source could be the history of

19 the parties' negotiations?

20 A. It should be the same as the content of the

21 pre-contractual negotiations, so, yes.

22 Q. And another source would be the pre-contractual

23 documents, right?

24 A. Yes, again.

25 Q. You didn't examine any pre-contractual

83

1 documents to reach the opinions you offer in this

2 matter, right?

3 A. Yes. This is right.

4 Q. The only information you have regarding the

5 history of the parties' pre-contractual negotiations

6 comes from your discussion with Dr. Huber; is that

7 right?

8 A. I do not even remember my discussions with

9 Dr. Huber on the history of the pre-contractual

10 negotiations. I didn't consider this was important in

11 this matter.

12 Q. So you did not undertake to investigate in any

13 fashion the history of the parties' pre-contractual

14 negotiations in reaching the conclusions you offer in

15 your report, right?

16 A. I thought it was more important to have a look

17 at the discussions as a general assembly and what I've

18 mentioned before and we've discussed that before.

19 Q. And as we discussed before, the general

20 assembly materials you reviewed are not a history of

21 the parties' pre-contractual negotiations, right?

22 A. I don't remember that they are a history of the

23 parties' pre-contractual negotiation because it took

24 place after.

25 Q. So you don't have any information regarding the

84

1 history of the parties' pre-contractual negotiations

2 with respect to ETSI's IPR policy; is that right?

3 MR. EARNHARDT: Object to the form.

4 A. I didn't need it.

5 Q. So is the answer to the question --

6 A. Yes. The answer is I do not have reviewed any

7 documents regarding the pre-contractual negotiations.

8 Q. You did not undertake to investigate in any

9 fashion the history of the parties' pre-contractual

10 negotiation with respect to ETSI's IPR policy; is that

11 right?

12 MR. EARNHARDT: Object to the form.

13 A. I think that I have answered already the

14 question. It did not -- it was not relevant so I did

15 not examine the parties' pre-contractual negotiation

16 prior to the drafting of the ETSI policy.

17 Q. Now in an ordinary contractual setting if a

18 French court felt the need to interpret contractual

19 provisions based on external sources, it might rely on

20 publicity documents, right?

21 A. That's one of the elements that are quoted in

22 the quote of Benabent, I think.

23 Q. What does publicity documents mean in the that

24 context?

25 A. Well, in the context of ETSI, I don't think it

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85

1 means anything. What is meant here and it's part of

2 the, quote, that's why I haven't distorted the, quote,

3 but what is meant by publicity document is if you are a

4 company which sells products and you make publicity as

5 regard certain qualities of the products, you may be

6 bound then to sell the products in the -- conforming

7 with what you have advertised.

8 Q. But there aren't any publicity documents as

9 used in that sense that are relevant to the

10 interpretation of ETSI's IPR policy; is that right?

11 A. Well, I cannot think of any and, once again,

12 it's here because it's part of the quote.

13 Q. So you've reached the opinion in this matter

14 that paragraph 6.1 of ETSI's IPR policy contains clear

15 and unambiguous language regarding Qualcomm's

16 obligation, or lack of obligation, to license at the

17 components level, right?

18 A. I reached the opinion that part of 6.1 is

19 clear. The language is not ambiguous and, therefore,

20 there is no need to interpret and this is the

21 conclusion I've reached.

22 Q. And the language that is clear is the

23 definition of manufacturer and the definition of

24 equipment; is that right?

25 A. I think the language that is clear goes beyond

86

1 just the definition because the definitions are not in

2 paragraph 6, it's in paragraph 15, so I reached the

3 conclusion that it's clear and not ambiguous as

4 regarding not only the definitions but also what is

5 said in paragraph 6.1 regarding the extent.

6 Q. So just so we're clear you have reached the

7 opinion that paragraph 6.1 is clear and unambiguous

8 that holders of essential IPRs shall grant licenses at

9 least to the extent that licensees can, quote,

10 manufacture, including the right to make or have made

11 customized components and subsystems for the

12 licensees's own design for use in manufacture. I'm

13 going to end there.

14 So that is -- it's clear that the ETSI IPR

15 policy imposes at least that obligation; is that right?

16 A. Yes. I think I can say that is right, yeah.

17 Q. And the definition of manufacture is clear and

18 manufacture means, quote, manufacture shall mean

19 production of equipment. Right?

20 A. That is right.

21 Q. The definition of equipment is unambiguous and

22 equipment means, quote, equipment shall mean any system

23 or device fully conforming to the standard. Right?

24 A. Yes. Right.

25 Q. Nowhere in the text of the ETSI IPR policy do

87

1 they define, quote, fully conforming to the standard.

2 Right?

3 A. That is -- if it was it will be in the

4 definitions and it's not in the definitions.

5 Q. So nowhere in the text of the ETSI IPR policy

6 is a definition provided of, quote, fully conforming to

7 the standards. Is that fair?

8 A. I think it is fair but I would need to review

9 the whole text to be completely satisfied but I think

10 since it's not in the definition, we can take it as

11 such.

12 Q. And on page 11 of your report, the first full

13 paragraph beginning with the italics, you state, quote,

14 I have been informed that the drafters of the ETSI IPR

15 policy also understood that only complete devices

16 satisfied the criterion of, quote, system or device

17 fully conforming to the standard, end quote.

18 A. Yes.

19 Q. You were informed of that by Dr. Huber, right?

20 A. Yes.

21 Q. He didn't tell you the identities of the

22 drafters of the ETSI IPR policy that are referred to in

23 that sentence, did he?

24 A. No, he did not.

25 Q. You did not ask any other individual involved

88

1 in drafting the ETSI IPR policy whether they shared the

2 understanding that Dr. Huber represented to you that

3 they had; is that right?

4 A. This is right. I think we have discussed this

5 already previously and I told you that I relied

6 exclusively on Dr. Huber's opinion and explanations to

7 me.

8 Q. So Dr. Huber's explanations to you were

9 necessary for you to understand the definition of

10 equipment contained in the ETSI IPR policy, right?

11 MR. EARNHARDT: Object to the form.

12 A. Dr. Huber's was -- rather the definition of

13 equipment is clear, it's in the definitions and the

14 clear. It's what is fully conforming to the standards

15 is not defined and for this I needed the explanation of

16 Dr. Huber, and what I understood from what he explained

17 to me is that a main component cannot be considered as

18 fully conforming to the standard and that it was

19 intention of the policy drafters, that system or device

20 fully conforming to the standards referred only to

21 complete systems or devices. That is to say cellular

22 handset, for instance.

23 Q. So the key to understanding Qualcomm's

24 obligation, if any, to offer FRAND licenses, is to

25 understand the meaning of system or device fully

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89

1 conforming to the standard, right?

2 A. No. I think the key to understand Qualcomm's

3 obligation is to go back to the contract and the words

4 of the contract and the contract, in fact, is the ETSI

5 rules of procedure, so the key to understanding it is

6 both Article 6 and the definitions that are in Article

7 15.

8 Q. And the key to understanding the definition of

9 equipment is to understand what is the meaning of a

10 system or device fully conforming to the standard,

11 right?

12 A. I -- I wouldn't say that. I think you will --

13 it skips one important step. When you read the

14 definition of equipment, it says any system or device.

15 It doesn't say any system or device or component fully

16 conforming to a standard. And I understood that a

17 components could not be fully conforming to a standard.

18 So the key to understanding the words and the

19 obligations implied by the contract is to look at the

20 words of the contract, and particularly Article 15.4,

21 which defines equipment, by referring to system or

22 device.

23 Under French law, if a word is not in the

24 contract and the judge adds a word, while it was not in

25 the contract, it will be distorting the parties'

90

1 intention, and then he would incur being quashed by the

2 cour de cassation for having distorted the parties'

3 intent. A judge is not allowed to add a missing word

4 which would then change the meaning of the contract.

5 And I think that we can not add the word component in

6 the definition of equipment.

7 Q. The word device does not include component as

8 used in the definition, right?

9 A. Can you say that again please, the word.

10 Q. So the word component does not appear in the

11 definition of equipment, does it?

12 A. No, it does not.

13 Q. So your opinion --

14 A. Yes.

15 Q. -- regarding definition of equipment is based

16 on the proposition that a device does not include --

17 strike that.

18 Your understanding of the word equipment, on

19 which your opinion offered in this report is based, is

20 premised on the proposition that the word device does

21 not include components; is that right?

22 MR. EARNHARDT: Object to the form.

23 A. This is not fact. A device includes several

24 components. I couldn't say that. But a component is

25 not fully conforming to a standard. Equipment shall

91

1 mean any system or device fully conforming to a

2 standard. So it has to be a system or a device to be

3 qualified as an equipment. That's my opinion.

4 Q. And a baseband processor is not a device fully

5 conforming to the standard, right?

6 A. That is my opinion.

7 Q. And that's based on what Dr. Huber told you,

8 right?

9 MR. EARNHARDT: Object to the form. Misstates

10 her prior testimony.

11 A. Well, it is based, once again, on the

12 definition of equipment. Is a baseband processor a

13 system, is it a device by itself fully and conforming

14 to the standard.

15 Q. Is a baseband processor a system fully

16 conforming to a standard?

17 A. In my opinion, but I'm not an expert of this

18 question, but what I understood is that it is not and

19 that it is a component.

20 Q. And you understood that a baseband processor is

21 not a system fully conforming to a standard because of

22 what Dr. Huber told you, right?

23 A. It's not -- it's not because of what Dr. Huber

24 told me, it's just a matter of definition of words. A

25 component is an element of something wider which is a

92

1 system or a device.

2 Q. Component is not defined in the ETSI IPR

3 policy, is it?

4 A. It is not defined, you're right.

5 Q. You believe that a component is necessarily

6 different from a device, as the term device is used in

7 the ETSI IPR policy, right?

8 A. Yes, I do. And perhaps here it's a question of

9 interpretation but a component is one part of a bigger

10 element, of a bigger offer system or device.

11 Q. And you believe that a component is necessarily

12 different from a system as the term system is used in

13 the ETSI IPR policy, right?

14 A. Yes, I believe that.

15 Q. What's the definition of system in the ETSI IPR

16 policy?

17 A. I do not remember having seen a definition of a

18 system in the IPR policy, therefore, I think we should

19 stick to the usual definition.

20 Q. What's the usual definition of a system as it's

21 used in the IPR policy?

22 A. I'm not an expert -- not defined the IPR

23 policy, so I think that the normal, the plain language

24 and the plain normal definition of system here will be

25 used and a system is precisely something which puts

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93

1 together different elements. It's not just one

2 component is not a system.

3 Q. Are there different elements that are put

4 together in a baseband processor?

5 A. That I'm not too sure how baseband processors

6 are constituted but -- and it's in my report and we

7 already have discussed this, it's on page two of my

8 report. The FTC takes the position that ETSI FRAND

9 commitments creates an obligation to grant licenses to

10 the manufacturers of baseband processors, i.e., to

11 grant licenses -- licenses at the component level.

12 Q. But you're the one who said that a baseband

13 processor is the component level, right? The FTC never

14 said in its complaint that a baseband processor is a

15 component, did it?

16 MR. EARNHARDT: Object to form.

17 A. I haven't read the whole complaint of the FTC,

18 and I don't think I'm the only one to say that a

19 baseband processor is not a system or is not a device

20 fully conforming to a standard.

21 Q. Do you know what a system on a chip is?

22 A. I'm not an expert of these questions.

23 Q. Are you aware that some baseband processors

24 referred to as a system on a chip?

25 A. I am not aware of this.

94

1 Q. Are you aware that a system on a chip combines

2 an application to specific integrated circuit --

3 application integrated circuit and a baseband

4 processor?

5 A. No, I'm not aware of this but I stick to the

6 definition of an equipment which means not only a

7 system but a system fully conforming to a standard.

8 Q. Did you ask Dr. Huber whether a system on a

9 chip is capable of fully conforming to the standard, as

10 that term is used, in the ETSI IPR policy?

11 A. I haven't asked this precise question to

12 Dr. Huber, and I have in my report the account for what

13 I have been informed. And I understood that only

14 complete devices satisfy the criterion of system of

15 device fully conforming to the standard.

16 Q. Now a handset is a complete device that fully

17 conforms to a standard, right?

18 A. A handset, yes.

19 Q. Other than an application specific integrated

20 circuit, what other parts of a handset are necessary to

21 fully conform to the standard, as that term is used, in

22 the ETSI IPR policy?

23 A. Listen, I'm sorry. I'm an expert in French

24 contract law and this is going beyond my sphere of

25 competence.

95

1 Q. Is a touch screen necessary to fully conform to

2 a standard?

3 A. A touch screen on the handset?

4 Q. Yes. Is a handset required to possess a touch

5 screen to fully conform to the standard?

6 A. I do not know.

7 Q. Is a handset required to possess a keyboard to

8 fully conform to the standard?

9 A. That, again, I do not know.

10 Q. Is a handset required to possess a camera to

11 fully conform to the standard?

12 A. I will do the same answer, I do not know.

13 Q. Is a handset required to possess a battery to

14 fully conform to the standard?

15 A. I do not know.

16 Q. Can you identify any element of a handset,

17 apart from an application specific integrated circuit,

18 which is necessary to conform to a standard?

19 A. I think I've told you before, I'm not -- I have

20 not been asked to give expertise on these questions,

21 which are technical and which go far beyond French

22 contract law.

23 Q. What is infrastructure equipment?

24 A. Isn't it defined? It's not defined in the ETSI

25 rules of procedure and I prefer not to attempt to give

96

1 a definition.

2 Q. The second sentence of paragraph, first full

3 paragraph on page 11 states, "Dr. Bertram Huber

4 explained to me that it was the intention of the ETSI

5 IPR policy drafters that, quote, system or device fully

6 conforming to the standard referred only to complete

7 systems or devices such as cellular handsets or

8 infrastructure." Did I read that, right?

9 A. Yes.

10 Q. What is infrastructure as you used it in that

11 sentence of your report?

12 A. I understood it as something more complex than

13 handset but I can't define it precisely.

14 Q. Do you know what a base station is?

15 A. Yes.

16 Q. Do you know if a base station includes an

17 application specific integrated circuit?

18 A. I'm not sure.

19 Q. What is a base station?

20 A. What would be the French translation so that

21 I'm sure I -- it is.

22 THE INTERPRETER: I don't know. I'm not -- I

23 don't want to venture a guess on that. Let me see if I

24 can find something.

25 MR. EARNHARDT: Can you say the two words, base

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1 and station in French?

2 THE INTERPRETER: Yes.

3 (Words spoken in French by the interpreter).

4 THE WITNESS: Yes, but it's not stanchion

5 device. I don't think so. So I want to make sure.

6 THE INTERPRETER: Would that be equivalent,

7 wireless base station? Let me see what -- now I cannot

8 see the screen, my screen to see what it says here.

9 Q. Well, let's try to get beyond the translation

10 issue. What pieces of hardware are you aware of that

11 constitute infrastructure, as you used it in that

12 sentence of your report?

13 A. I'm -- I don't want to get into this

14 discussion. I don't think I was hired to give

15 technical explanation and I am not prepared for this.

16 Q. What did you mean by the word infrastructure?

17 A. As I said before, I meant something which is

18 not just a mobile phone, something more complex and so

19 -- but I had no -- I don't think we discussed with

20 Bertram Huber exactly the meaning of infrastructure and

21 I don't think it changes the meaning of what I wanted

22 to say, which is that the main component of, for

23 instance, a hand phone, is not a system or device fully

24 conforming to the standard, that's what I concentrated

25 on. And it's even more true with an infrastructure

98

1 because infrastructure, if you take it in the common

2 sense, an infrastructure cannot be made of just one

3 component. That's -- that was actually plain meaning

4 of current language.

5 Q. So it's your view that a single baseband

6 processor cannot constitute infrastructure as you've

7 used it in that sentence; is that right?

8 A. I've told you before that I don't want to give

9 an expertise on what baseband processor can or cannot

10 constitute. It goes beyond my sphere of expertise and

11 I am not prepared to answer that question.

12 Q. What did you do to assess the credibility of

13 Dr. Huber's representation to you that a baseband

14 processor cannot constitute infrastructure?

15 A. I don't remember having written this and I

16 don't remember during the discussion Dr. Huber saying

17 this in the precise words that you are using now, and

18 had he done so, I will have relied on his expertise.

19 You're asking me what I did to assess the credibility

20 of what he told me, but he is the expert on these

21 questions, I am not. And I am not asked to assess the

22 credibility of what Dr. Huber tells me. This would be

23 ridiculous. I have no expertise for this.

24 Q. What expert opinion did Dr. Huber convey to you

25 when you say you are not able to assess the credibility

99

1 of what he tells you?

2 A. What expert opinion did he convey to me? I

3 mean, he -- I think in my report you have here the

4 express opinion he give me. What else do you mean by

5 this question? I'm not sure I understand.

6 Q. Dr. Huber told you things he heard when the

7 ETSI IPR policy was being drafted, among other things,

8 fair?

9 A. Things he heard or I don't know where he took

10 this information from. I understand that you are sort

11 of questioning the legitimacy of Dr. Huber's opinion

12 but that's not a matter for me to take position on.

13 I've already told you that I trusted what Bertram Huber

14 has told me, that I used it in my report and that I'm

15 not as an expert on French law supports, nor asked to

16 check the voracity of what Dr. Huber told me.

17 Q. So you said in that answer that I'm questioning

18 Dr. Huber's opinion. What do you mean by his opinion?

19 A. I said that repeatedly. You ask me what I have

20 been doing to check what Dr. Huber told me. I'm am not

21 saying by opinion that he's -- an opinion -- well,

22 opinion is ambiguous. So I should rather say what

23 Dr. Huber told me.

24 Q. Well, he told you things -- strike that.

25 Dr. Huber told you the conclusions he reached

100

1 based on his experience at ETSI, right?

2 A. I don't know if it's the conclusions he

3 reached. I took it more as really a consta, really

4 something that he told me as a fact, it's not a

5 conclusion he reached.

6 Q. So you said constant, right, you took it as a

7 constant?

8 THE INTERPRETER: No, C-O-N-S-T-A-T [sic], an

9 observation.

10 A. A factual observation rather than an opinion.

11 There is no subjective element, that's what I meant.

12 Q. Okay. So Dr. Huber conveyed to you factual

13 observations; is that fair?

14 A. That's how I took it, rather than opinion.

15 Q. So your opinion is predicated on Dr. Huber's

16 factual obligations?

17 A. No.

18 MR. EARNHARDT: Object to the form. Object to

19 the form.

20 A. No. This is not fair? No. My opinion is on

21 French contract law and essentially my opinion is that

22 when the terms of the contract are plain and clear,

23 there should be no interpretation because there need

24 not be, and it goes even further than that under French

25 law, and this was before in case law and it is now

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26 (Pages 101 to 104)

101

1 clarified, if a judge distorts the parties' intention

2 and adding a word in a contract may amount to

3 distortion, then he incurs being quashed by the cour de

4 cassation because he is denaturer, that's the word we

5 use, denaturer. He is violating, in a way, the

6 parties' intention, so denaturer the contract.

7 Q. So you've reached the opinion that the language

8 of the ETSI IPR policy is plain and clear, right?

9 A. Well, not all the language but on the issues

10 that we are discussing now, I've reached the opinion

11 that the slang is plain and clear.

12 Q. What if the word equipment was not defined in

13 the ETSI IPR policy, would you still have the view that

14 the language was plain and clear?

15 MR. EARNHARDT: Object to the form.

16 A. You are asking me to form an hypothesis and I

17 haven't reflected upon this. It is defined so it's

18 important to note that the word equipment is defined.

19 Now what would it be had it not been defined, I don't

20 know.

21 Q. So if not for the definition of the word

22 equipment in the ETSI IPR policy, you don't have a view

23 regarding whether or not the language is unambiguous

24 with respect to the obligation, or lack of obligation,

25 to license at the component level; is that fair?

102

1 A. It's not exactly the way I would put it. If

2 the word equipment had not been defined, and again, you

3 ask me to reflect on a hypothetical, and I find it

4 pretty uncomfortable because, of course, I haven't

5 reflected upon this hypothesis, but then a judge will

6 turn to the normal meaning of equipment, to the plain

7 everyday meaning. And in an everyday meaning, an

8 equipment is something which normally is not -- well,

9 it's -- I don't know how to define equipment in a plain

10 meaning but you understand that it's not just one

11 little piece of something.

12 So I'm not sure it will change much, but again,

13 it's a hypothetical and I don't really want to

14 extrapolate.

15 Q. Is a toothpick a piece of equipment?

16 A. Sorry?

17 Q. Is a toothpick a piece of equipment?

18 THE INTERPRETER: Core-dent.

19 A. A piece of equipment. So is it an equipment,

20 you mean?

21 Q. Yes. Is it an equipment?

22 A. Well, in French we have the word equipement, we

23 usually use it when it comes to being really well

24 prepared. You take all your equipment, you take

25 everything with you, taking your cure-dent would not

103

1 really be seen as equipement.

2 Q. Is a dagger a piece of equipment?

3 (Stated in French by the interpreter.)

4 A. But you're asking me if it's a piece of

5 equipment or an equipment?

6 Q. In the ordinary meaning of the word equipment,

7 is a dagger equipment?

8 A. I would rather say that it is a piece of

9 equipment.

10 Q. And a toothpick is also a piece of equipment,

11 in the ordinary meaning of the word equipment, fair?

12 A. I think so, but again, we are going far beyond

13 French contract law.

14 (The interpreter said something in French.)

15 Q. A contact lens. Is a contact lens a piece of

16 equipment in the ordinary meaning of the word

17 equipment?

18 A. I think I can make the same answer and we can

19 continue endlessly. Yes, if you don't see well and you

20 need contact lenses and you go for an expedition and

21 you prepare your equipment, you had better take your

22 contact lenses with you and it will be a piece of your

23 equipment.

24 Q. Is a lever a piece of equipment in the ordinary

25 meaning of the word equipment?

104

1 MR. EARNHARDT: Object to the form.

2 A. I don't know what a level is.

3 (The French word was stated by the

4 interpreter.)

5 A. It depends what you need to do with it but it

6 may be a piece of equipment. I don't understand where

7 you are taking me here.

8 Q. Is an fulcrum a piece of equipment in the

9 ordinary meaning of equipment?

10 A. A fork?

11 Q. No.

12 THE INTERPRETER: Translated. If I could just

13 see my screen.

14 (The French word was stated by the

15 interpreter.)

16 A. I don't know what it is, even in French.

17 Q. Is a screw a piece of equipment in the normal

18 meaning of the word equipment? Strike that.

19 Is a screw equipment in the normal meaning of

20 the word equipment?

21 MR. EARNHARDT: Object to the form.

22 A. Can you take words like glasses or I don't

23 know, glasses. I don't know what a screw is.

24 THE INTERPRETER: Translated.

25 A. I believe it is a piece of equipment.

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For The Record, Inc.

27 (Pages 105 to 108)

105

1 Q. Is an application specific integrated circuit

2 equipment within the normal meaning of the word

3 equipment?

4 A. Equipment or piece of equipment?

5 Q. Is an application specific circuit equipment

6 within the normal meaning of the word equipment?

7 A. I think I've told you already that I can't

8 answer this question.

9 Q. So you don't know one way or the other whether

10 the ordinary use of the word equipment would include an

11 application specific integrated circuit, fair?

12 A. I -- I do not know -- what I am trying to tell

13 you is that an equipment is different from a piece of

14 equipment and I do not know whether it's merely a piece

15 of equipment or not.

16 Q. What's the distinction between a piece of

17 equipment and equipment, as you've used those terms?

18 A. As I view these terms in ordinary plain

19 meaning, and I think I've told you already, if you take

20 a screw you're not very well equipped. You need to

21 take also a tourne-vis.

22 THE INTERPRETER: A screwdriver.

23 A. A screwdriver. And then you begin to have the

24 beginning of an equipment but usually you need more

25 screws and perhaps different sizes of screwdrivers.

106

1 This is getting ridiculous. I am not an expert of

2 screw and screwdrivers.

3 Q. What about a dagger, you're perfectly well

4 prepared to stab somebody with only a dagger, right?

5 A. You need something to carry it. Usually you

6 won't just go along in the street with your thing.

7 What's the point of all this?

8 Q. Well, the point of all this is you don't know

9 what equipment means as it's used in the ETSI IPR

10 policy, unless you know what a system or device fully

11 conforming to the standard means is; is that right?

12 MR. EARNHARDT: Whoa, let me just object to the

13 form and object to the extent that you're representing

14 those hypotheticals have anything to do with equipment

15 as it's defined in the policy. I object to this entire

16 line of questioning, but you can try and answer the

17 question that's been posed.

18 A. I do what a French judge will do. Let's go

19 back to the words. I know that equipment, as defined

20 in the policy, shall mean any system or device fully

21 conforming to a standard, full stop.

22 Q. And if that definition wasn't in there you

23 would not know whether an application specific

24 integrated circuit constituted equipment within the

25 meaning of the ETSI IPR policy, right?

107

1 A. It's -- the question is completely irrelevant.

2 The definition is in there and it is important since it

3 is in there that a French judge looks at the definition

4 that is in the ETSI rules of procedure.

5 Q. So the definition in the ETSI rules of

6 procedure is an essential input into what a French

7 judge would conclude when analyzing the ETSI IPR

8 policy, right?

9 MR. EARNHARDT: Can you read back that

10 question, please.

11 A. What do you mean by --

12 MR. EARNHARDT: I missed the question if you

13 can read it back.

14 (The requested portion was read.)

15 A. It's an element.

16 Q. Let's strike the question.

17 The opinion you have offered in this matter is

18 based, in part, on the definition of equipment in the

19 ETSI IPR policy, right?

20 A. The opinion is more largely based on French

21 contract law as regard interpretation, and what I say

22 is that if the words are there, and if they are clear,

23 there is no need to look at external factors and other

24 things. And not only is there no need but the judge

25 cannot interpret the parties' intent because the

108

1 language is clear and if he does so, then his decision

2 will be quashed.

3 Q. You haven't considered whether or not the

4 language would be clear if there was no definition of

5 equipment in the ETSI IPR policy; is that right?

6 A. What is the point of doing so since there is a

7 definition. A French judge would not consider whether

8 or not the definition is clear, if there was no

9 definition, because it will be wrong for a French judge

10 not to turn to the definition.

11 Q. So my question is: You have not considered

12 whether or not the language of the ETSI IPR policy

13 would be clear if there was no definition of equipment

14 provided; is that fair?

15 A. I think I can say this is fair and, once again,

16 I think this would be a fault from a French judge not

17 to refer to the definitions.

18 MR. EARNHARDT: So let's take like a -- well,

19 let's take a break. Maybe we can take a break for

20 lunch. It's about 12:25. I have to take a break no

21 matter what so we can do lunch now or we can take a

22 five-minute break and come back but I need to take a

23 break.

24 MR. MATHESON: I'm kind of in the middle of

25 something. How long of a lunch break do you want to

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For The Record, Inc.

28 (Pages 109 to 112)

109

1 take?

2 MR. EARNHARDT: I'm am fine with half an hour.

3 Are you okay with half an hour?

4 THE WITNESS: Yes, I am.

5 MR. MATHESON: For the witness, we will take

6 half an hour.

7 THE VIDEOGRAPHER: We are now going off the

8 record, the time is 12:42.

9 (A recess was taken.)

10 THE VIDEOGRAPHER: We are now going back on the

11 record. The time is 1:09.

12 Q. Thanks for coming back.

13 So is it fair to say that the key to

14 understanding what Qualcomm -- strike that.

15 Is it fair to say that the key to understanding

16 which offers to license standard essential patents

17 Qualcomm needs to make, is to understand the meaning of

18 equipment as it's used in the ETSI IPR policy?

19 MR. EARNHARDT: Object to the form.

20 THE VIDEOGRAPHER: Excuse me. Do you have your

21 mic on?

22 Q. Is the question clear or should I --

23 A. No, it's not clear.

24 Q. Okay. Is it fair to say that the key to

25 understanding which offers Qualcomm must make to be

110

1 consistent with the ETSI intellectual property policy,

2 is to understand the meaning of, quote, a system or

3 device fully conforming to the standard, i.e.,

4 equipment, end quote?

5 A. It's not exactly the way I would put it but

6 perhaps eventually it would be the same. I would say

7 that to understand this meaning is important to

8 understand the extent, the ampleur of the FRAND

9 obligation.

10 THE INTERPRETER: The aim?

11 THE WITNESS: No, no, the extent of the FRAND

12 obligation.

13 Q. Okay. So it would be inaccurate, in your view,

14 to state that the key to understanding which offers

15 Qualcomm must make to be consistent with the

16 intellectual property policy of ETSI, is to understand

17 the meaning of a system or device fully conforming to

18 the standard, i.e., equipment?

19 MR. EARNHARDT: Object to the form.

20 A. No. I'm not saying that it will be inaccurate.

21 Can we come back to your first question because is it

22 fair to -- the first one you ask me and -- I'm a bit

23 lost.

24 Q. Sure. How about this: Take a look at page 11

25 of your report, please.

111

1 A. Yes.

2 Q. CX0057-013.

3 A. Yes.

4 Q. The final sentence of the first paragraph

5 states, quote, therefore the key to understanding what

6 SEP holders must license is the meaning of a, quote,

7 system or device fully conforming to the standard,

8 i.e., equipment.

9 A. I see it, yes.

10 Q. Do you agree, sitting here today, that the key

11 to understanding the offers that Qualcomm must make, in

12 order to be consistent with ETSI's intellectual

13 property policy, is to understand, quote, the meaning

14 of a system or device fully conforming to the standard,

15 i.e., equipment?

16 A. I'm a bit confused. Can we stick to the words.

17 I agree with what I have written, so if your question

18 means the same as what I have written, it's fine. I

19 don't see the difference. I'm a bit lost here.

20 Q. What did you mean when you wrote, the key to

21 understanding what SEP holders must license?

22 A. I think what I meant is that in order to know

23 what SEP holders must license, according to clause 6.1

24 of the IPR policy, that is to say according to the

25 requirement that it's licensed on a FRAND basis, is the

112

1 meaning of a system or device fully conforming to the

2 standard.

3 Q. Now when you say what SEP holders must license,

4 is there a distinction -- strike that.

5 You mean that license offers they must make,

6 correct, not the licenses they must take from others?

7 A. License offers.

8 Q. So you're using license in the sense of make an

9 offer to make a license to the SEP holders'

10 intellectual property available to others?

11 A. Yes, I am.

12 Q. And your understanding of the term, quote,

13 system or device fully conforming to the standard is

14 not based on any minutes of ETSI proceedings, right?

15 A. Minutes of ETSI proceedings? Do you refer to

16 the documents we discussed before, minutes of the

17 general assembly or --

18 Q. Are there any minutes of any ETSI proceedings

19 of the general assembly or any other ETSI body that

20 have informed your view of the meaning of, quote,

21 system or device fully conforming to the standard?

22 A. I don't remember having been informed on this

23 by what I have read, what you -- by the minutes of the

24 general assembly that I've read, no.

25 Q. And you've never read any declaration from Carl

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For The Record, Inc.

29 (Pages 113 to 116)

113

1 Himes Rosenbrook relevant to your understanding of,

2 quote, system or device fully conforming to the

3 standard, right?

4 A. Sitting here now, I do not remember having read

5 that.

6 Q. Other than -- strike that.

7 Now, Dr. Bertram Huber explained to you the

8 intention of the ETSI IPR policy drafters regarding the

9 meaning of system or device fully conforming to the

10 standard, right?

11 A. Yes, this is correct.

12 Q. He didn't identify for you the ETSI IPR policy

13 drafters to which your report refers, did he?

14 A. I don't think -- I don't remember him

15 identifying them, no.

16 Q. And you did not ask him to identify the ETSI

17 IPR policy drafters to which your report refers, right?

18 A. Right because if he gave me some names it

19 wouldn't help me very much.

20 Q. Now, a French court considering Dr. Bertram

21 Huber's explanation of the intent of the ETSI IPR

22 policy drafters, wouldn't necessarily take at face

23 value everything he says, fair?

24 A. Well, this is fair. French court is always

25 free not to take as face value something that is said

114

1 by lawyers or by an expert.

2 Q. A French court could consider contrary

3 evidence, if such evidence existed, that contributed

4 what Dr. Bertram Huber said was the intention of the

5 ETSI IPR policy drafters, right?

6 A. Yes. A French court could consider contrary

7 evidence if it was brought by the other party.

8 Q. And in the ordinary case, if there was

9 conflicting evidence regarding the intention of the

10 ETSI IPR policy drafters, the French court would

11 consider all the evidence, right?

12 A. It will have to take everything into account,

13 yes, and make its own mind up.

14 Q. So in order to interpret what you refer to as

15 the clear and unambiguous language of the ETSI policy,

16 you need to know what, quote, system or device fully

17 conforming to the standard means, right?

18 MR. EARNHARDT: Object to the form.

19 A. I'm -- I'm not so sure that it's necessary to

20 know in detail what fully conforming to a standard

21 means in order to interpret the policy. What is clear

22 for me, when I read the policy and when I read the

23 definition, is that the word component is not there and

24 it's not in the definition of equipment, and that's the

25 important point because, as I've said before, a judge

115

1 could not add a word in the contract if it was not

2 there.

3 Q. When you say it's not there, you mean the word

4 component does not appear in the definition of

5 equipment, right?

6 A. That is what I mean, indeed.

7 Q. Now, can we take a look at CX7552-003. This is

8 the ETSI policy we were discussing.

9 A. Yes.

10 Q. The intellectual rights policy.

11 So 6 point -- Clause 6.1 has four bullets,

12 right?

13 A. Yes.

14 Q. The first bullet, it's fair to say that this

15 bullet states that holders of essential IPR shall grant

16 at least the right to manufacture, including the right

17 to make or have made customized components and

18 subsystems to the licensees's own design for use in

19 manufacture, right?

20 A. This is the first bullet, yes.

21 Q. And that bullet doesn't have the word equipment

22 in it, does it?

23 A. That bullet has the word component in it.

24 Q. My question is: Does that bullet contain the

25 word equipment?

116

1 MR. EARNHARDT: Object to the form.

2 A. I don't see the point of this question. The

3 equipment is mentioned in the second bullet. What I

4 understand from the first bullet, which refers to the

5 manufacturer, is that it considers components in the

6 specific context, which is the right to make or have

7 made customized components and subsystems to the

8 licensees's own design for use in manufacture. What is

9 important is manufacture.

10 Q. Right. It doesn't say manufactured by the

11 licensee, does it?

12 A. No, it doesn't say by the licensee.

13 Q. So under this bullet, a holder of standard

14 essential patents must grant at a minimum a right to

15 manufacture customized components designed by the

16 licensee for use in manufacture of equipment, right?

17 A. It's getting technical and it's in English,

18 which is not my native language, so I prefer to stick

19 to the language because you made it shorter. It's

20 manufacture, including the right to make or have made

21 customized components and so-so. So I would say that

22 we -- every word counts.

23 Q. Every word counts. And in this bullet it says

24 that licensees are entitled to manufacture components

25 of their own design for use in the manufacture of

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For The Record, Inc.

30 (Pages 117 to 120)

117

1 equipment, right?

2 MR. EARNHARDT: Object to the form.

3 A. Can you say again. Licenses are entitled to?

4 Q. Manufacture components of their own design,

5 assuming that those components are for use in the

6 manufacture of equipment.

7 MR. EARNHARDT: Object to the form.

8 Q. Fair?

9 MR. EARNHARDT: Object to the form.

10 A. I'm not too sure. I prefer to -- once again, I

11 prefer to stick to the language. It says precisely

12 what is said here. I don't know if your interpretation

13 is correct or not.

14 Q. Did you ask Dr. Huber if that interpretation

15 was correct?

16 A. I didn't ask Dr. Huber.

17 Q. So there is nothing in this bullet -- or strike

18 that.

19 What is the language in 6.1 that forecloses the

20 interpretation that all licensees are entitled to make

21 customized components, as long as those components are

22 for use in the manufacture of equipment, as manufacture

23 and equipment are defined?

24 A. This is not exactly the way I have considered

25 this bullet. I have concentrated on the word

118

1 manufacture, and then I turn to the definition of

2 manufacture, which is in Clause 15, and which says it

3 shall mean production of equipment.

4 Q. But it doesn't say that the licensee must be

5 the one who manufactures the equipment into which the

6 customized component is included, does it?

7 A. It's not the object of this Article 6, which is

8 about availability of licenses, so it's not turned to

9 the licensee, it concentrates on the definition of the

10 scope of the FRAND obligation.

11 Q. And the scope of the FRAND obligation, in

12 Clause 6.1, includes the obligation to offer licenses

13 to licensees who desire to manufacture customized

14 components of their own design, as long as those

15 components are for use in equipment. Right?

16 A. I suppose if you say that it's right but I

17 prefer, once again, to stick to the very language of

18 the bullet itself, because I'm not too sure of whether

19 the way you put it is different from the way it is

20 written here.

21 Q. So let's say Siemens?

22 A. Siemens.

23 Q. Are you familiar with Siemens?

24 A. No.

25 Q. Have you heard of them?

119

1 A. I've heard of them.

2 Q. Are you aware that at one point in time they

3 manufactured baseband processors?

4 A. Yes. But I'm not very familiar with them.

5 Q. Okay. Is there a manufacturer of baseband

6 processors, other than Qualcomm with whom you're more

7 familiar with?

8 A. No.

9 Q. Let's stick with Siemens then. So if Siemens

10 wants to manufacture customized components of its own

11 design and sell them to a handset manufacturer that

12 would then manufacture a handset that fully conforms to

13 the standard, this clause of the ETSI IPR policy says

14 that standard essential patent holders have to license

15 Siemens to do that, right?

16 MR. EARNHARDT: Object to the form.

17 A. Again, I'm not sure, so I prefer not to answer

18 that question.

19 Q. What else would you have to know in order to

20 know the answer to that question?

21 A. I will have had to reflect upon it and to have

22 more time to see it in the light of the language of the

23 ETSI policy.

24 Q. It's not a question you've considered before

25 today?

120

1 A. It's not at all.

2 Q. It's not interpretation Dr. Huber told you was

3 one that was advanced by, quote, drafters of the ETSI

4 IPR policy; is that right?

5 A. What is right is that explained to me -- he

6 explained to me that system of device fully conforming

7 to standard, as used in the IPR policy of ETSI, was not

8 intended to cover an isolated component, such as

9 cellular chip sets and or thin modem and that's what I

10 have put in my report.

11 Q. Right. And you never asked him whether this

12 bullet that says that standard essential patent holders

13 must make available at least a license to manufacture

14 customized components of a licensee's own design

15 provided those components are used in the manufacture

16 of equipment, meant that Qualcomm had to license the

17 component level, right?

18 MR. EARNHARDT: Object to the form.

19 A. I'm sorry but I need you to repeat the

20 question.

21 (The requested portion was read.)

22 A. Right. I did not ask him such a question.

23 Q. Now, you're not 100 percent certain that a

24 French court would find that the clear and unambiguous

25 terms of the ETSI policy require a holder of standard

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121

1 essential patents to license only makers of complete

2 operational devices, right?

3 A. Well, it's difficult to be 100 percent sure of

4 what the French court would find when it comes to

5 interpreting a contract. And its interpretation is

6 considered as a factual element and, therefore,

7 normally it's not submitted to the control of our

8 supreme private court, which is the cour de cassation,

9 precisely because it's an element of fact. But when it

10 comes to what I said before, what we call denaturacion,

11 adding a word which is not then the supreme court will

12 control and will cause a decision that is not

13 interpreting properly the parties' will.

14 So to come back to your question, I'm not 100

15 percent sure because it's not possible to be 100

16 percent sure of what the French judge will do,

17 particularly when it comes to interpretation of the

18 contract where factual elements matter and there is, of

19 course, some space for different analysis. But having

20 said that, I am absolutely sure that if a judge was to

21 add the word component where it is not included, then

22 this would be a case where the specific control of our

23 supreme court, cour de cassation, would exerted. And

24 this control, which was created by case law, and I

25 think I've said it before, has been codified in our new

122

1 civil code, so it gives it even more strength, it

2 doesn't change the law because it was there already in

3 Article 1152, if my memory is good -- no, 1192. 92.

4 MR. EARNHARDT: Our real time has gone out

5 again. I don't know how easy of a fix it is.

6 MR. MATHESON: Mine's out. You want to go off

7 real quick and see if we can get it back on?

8 MR. EARNHARDT: Yeah.

9 THE VIDEOGRAPHER: We are going off the record.

10 The time is 1:34.

11 (A recess was taken.)

12 THE VIDEOGRAPHER: We are going back on the

13 record. The time is 1:38.

14 Q. Do you not say in your report any cases in

15 which French courts have determined that the terms of

16 the ETSI IPR policy are clear and unambiguous, do you?

17 A. No, I don't.

18 Q. Did you try to find any cases?

19 A. There are no cases.

20 Q. There are no cases in which French courts have

21 assessed whether the terms of the ETSI IPR policy are

22 clear and unambiguous, fair?

23 A. That is fair.

24 Q. Are there any cases in any jurisdictions that

25 assess whether the ETSI IPR policy is clear and

123

1 unambiguous?

2 A. Apart from France, you mean?

3 Q. Correct. Are there cases in any jurisdiction,

4 including but not limited to France?

5 A. I haven't looked apart from France, so I could

6 not tell you. I'm not aware of any.

7 Q. You yourself authored a report in -- that was

8 introduced in an English court regarding whether or not

9 the ETSI IPR policy is clear and unambiguous, right?

10 A. Are you meaning the NY Planet case?

11 Q. What was the NY Planet case?

12 A. It was in front of an English judge, that's why

13 I think of this report, but it was more on the method

14 to determine FRAND, so I'm not sure whether that is the

15 one you are referring to or not.

16 Q. What opinion did you offer in that case?

17 A. My opinion was mainly concentrated on the

18 stipulation on behalf of third party and the way that a

19 FRAND commitment has to be analyzed as a stipulation on

20 behalf of a third party, and that Judge Birss, he

21 adopted this analysis.

22 Q. Which judge was that?

23 A. Birss, B-I-R double S.

24 Q. Did you offer the view in that case that the

25 ETSI intellectual property rights policy was clear and

124

1 unambiguous?

2 A. I don't remember having offered such a view but

3 I would need to check. It wasn't the core subject.

4 Q. Do you offer an opinion in litigation between

5 Apple and Qualcomm in the United Kingdom that the ETSI

6 IPR policy is clear and unambiguous?

7 A. I offered an opinion, yes, in this litigation,

8 and now sitting here, I can't remember whether I

9 offered it on this specific point. It was more about

10 the question -- it was a different question. It was

11 about the definition of subsidiary.

12 Q. Did you offer deposition testimony in that

13 case?

14 A. Deposition testimony. Do you mean did I go to

15 court or did -- I wasn't asked to -- I wasn't deposed.

16 I offered -- I made a report.

17 Q. You were not deposed during the course of

18 the --

19 A. No.

20 Q. You did not testify in court?

21 A. No.

22 Q. Did you read the opinion that the judge

23 ultimately issued on May 22, 2018?

24 A. Quickly.

25 Q. Did the judge agree with you that the ETSI IPR

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1 policy was clear and unambiguous?

2 A. I don't remember this precise point. I just

3 remember that it was a French expert, had given another

4 opinion and my opinion was followed by the judge, that

5 he agreed with me rather than with Morefessis. Now on

6 the substance, I must say I don't remember this precise

7 point. It was more on the question of affiliate and

8 affiliated because it was a question of jurisdiction

9 that was behind it so far, as I remember.

10 Q. So you don't recall one way or the other

11 whether you offered an opinion that the ETSI IPR policy

12 was clear and unambiguous?

13 A. No, I truly don't recall.

14 Q. Now who was the other expert, Professor

15 Morefessis?

16 A. Yes.

17 Q. Are you familiar with Professor Morefessis,

18 other than in that litigation?

19 A. Yes, I am.

20 Q. Is he a French processor of French law?

21 A. Exactly.

22 Q. Is he well respected? Is it a man or a woman?

23 A. A man.

24 Q. Is he a relatively well respected professor of

25 French law?

126

1 A. Relatively well.

2 Q. Not as highly as yourself, one assumes.

3 Did you find the opinion he offered in that

4 case well supported?

5 A. No, I didn't.

6 Q. Why not?

7 A. You're asking me to remember opinions that I

8 have been working on quite sometime ago and I don't

9 have a very clear remembrance, but I thought -- oh,

10 yes, now I remember. He had all these developments

11 about the porte-fort, which were completely, I think,

12 useless, and other things which really did not convince

13 me and did not convince the judge either.

14 THE INTERPRETER: Porte-fort.

15 A. Porte-fort.

16 Q. And what is that?

17 A. I would need to have the translation of the

18 French civil code to tell you exactly. It's -- it's

19 something not too far from a stipulation on behalf of

20 third party, but it's different, and it's the idea that

21 you take up on you the fact that somebody is going to

22 do something and you sort of make yourself responsible

23 for that.

24 Q. In the Apple versus Qualcomm litigation in the

25 UK, the court concluded that Qualcomm had tendered only

127

1 inadmissible evidence as to the meaning of the ETSI IPR

2 policy, right?

3 MR. EARNHARDT: Object to the form. Do you

4 have something you want to show the witness?

5 A. I am -- I don't know. I told you I read it

6 quickly.

7 Q. So you don't recall one way or the other --

8 A. No.

9 Q. -- whether the court concluded that your

10 opinion was inadmissible regarding the interpretation

11 of the ETSI IPR policy?

12 A. I don't remember.

13 Q. Now you're aware that Qualcomm and Ericsson

14 engaged in litigation at one point in time, right?

15 A. Qualcomm and Ericsson engaged in litigation

16 together. I haven't been implying that.

17 Q. Are you aware one way or the other whether

18 Qualcomm has ever claimed that the ETSI IPR policy

19 obligated Ericsson to offer Qualcomm a license to

20 practice Ericsson's patents to manufacture chip sets

21 that complied with the ETSI standard?

22 A. I don't think I'm aware of that, no.

23 Q. Are you aware that Nokia has claimed that

24 Qualcomm is obligated by the ETSI IPR policy to execute

25 a chip set level license to practice Nokia standard

128

1 essential patents?

2 A. No, I'm not aware. I'm in the -- I was in the

3 case against Nokia but I don't think it was on this

4 subject.

5 Q. So you've never investigated any litigation

6 between Qualcomm and Nokia, other than the United

7 States litigation which you were involved, fair?

8 A. That's fair.

9 Q. You never investigated any litigation between

10 Qualcomm and Ericsson that related to ETSI's

11 intellectual property rights policy, fair?

12 A. That's fair.

13 Q. And you never investigated whether Qualcomm

14 granted Broadcom a license to practice Qualcomm's ETSI

15 standard essential patents at the chip set level; is

16 that fair?

17 A. That is fair.

18 Q. Do you know if any court in the United States

19 has ever construed ETSI's intellectual property rights

20 policy?

21 A. When you mean construe you will mean interpret

22 ETSI's IPR policy typically as regard Article 6?

23 Q. Yes. Are you aware --

24 A. Construe means interpreting?

25 Q. Yes. Are you aware of whether or not any court

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1 in the United States has ever interpreted Article 6 of

2 ETSI's intellectual property rights policy?

3 A. No, I'm not aware of any interpretation given

4 by a US court.

5 Q. If a French court were to interpret Article 6

6 of ETSI's intellectual property rights policy, would it

7 be relevant to the French court's determination if

8 courts in other jurisdictions had construed Article 6

9 one way or another?

10 A. Not very much. French courts are a bit

11 parochial and because it has to be construed under

12 French law, that's what is said in Article 12, French

13 law is applicable and it's applicable also for the

14 interpretation. I don't think it will be very

15 impressed by any foreign decision interpreting the

16 policy. And I even doubt that it will even take it

17 into account.

18 Q. It doesn't matter to that view whether or not

19 the foreign decision purported to interpret French

20 contract law?

21 A. I think they would consider that as French

22 judges they are much better placed to interpret French

23 law.

24 Q. It might be relevant to the expectations of the

25 parties if courts in other jurisdictions had

130

1 consistently interpreted the ETSI intellectual property

2 rights policy one way or another, mightn't it?

3 MR. EARNHARDT: Object to the form.

4 A. First, the expectation of the parties comes as

5 a subsidiary, it's not the main criterion. What is the

6 main criterion is the subjective interpretation and the

7 intention of the parties. And secondly, I'm not even

8 sure that this will be a decisive factor.

9 Q. In assessing the subjective interpretation of

10 the parties, a French court might consider positions

11 they had advanced in litigation relevant to the

12 question of their contractual interpretation, right?

13 MR. EARNHARDT: Object to the form.

14 A. Which parties are you talking about?

15 Q. So I mean Qualcomm has claimed that Ericsson is

16 obligated to give them a component level license under

17 the ETSI IPR policy. Now a French court attempting to

18 interpret the ETSI IPR policy might find that relevant,

19 right?

20 MR. EARNHARDT: Object to the form.

21 A. Aren't we mixing up two things, interpretation

22 of ETSI policy itself and the interpretation of the

23 contract between license or and licensee? What are we

24 now discussing? I'm not sure.

25 Q. Okay. Hypothetically, let's say a French court

131

1 is asked to determine whether Qualcomm is obligated to

2 offer licenses at the component level due to the ETSI

3 IPR policy, right?

4 A. Yes.

5 Q. French court is asked to make that decision in

6 2018. Okay?

7 A. Yes.

8 Q. A French court might find it relevant that in

9 2002 Qualcomm claimed that Ericsson was obligated to

10 offer component level licenses under the ETSI IPR

11 policy, right?

12 MR. EARNHARDT: Object to the form.

13 A. I'm skeptical.

14 Q. You don't think that would be relevant to a

15 French court's determination?

16 A. No. I think the French court will look at the

17 contract itself and the contract itself here, it's very

18 -- it's very specific. The contract itself is, in

19 fact, the ETSI rules of procedure.

20 Q. Well, suppose that Qualcomm and Ericsson were

21 both involved as drafters of the ETSI IPR policy.

22 Okay? If we hypothetically suppose that both Qualcomm

23 and Ericsson were among the drafters of the ETSI IPR

24 policy, then their public statements regarding whether

25 or not the IPR policy obligated licenses to be offered

132

1 at the component level might be relevant to a French

2 court's interpretation of the ETSI IPR policy, right?

3 MR. EARNHARDT: Object to the form.

4 A. I remain skeptical.

5 Q. So the public statements of the drafters of the

6 ETSI IPR policy would not be relevant to a French

7 court's interpretation of the IPR policy; is that

8 right?

9 A. What I'm saying is that the contexts are

10 different. The public statements of the drafters, when

11 it is during the drafting process, would be relevant

12 and I've said it in my report it is relevant. It's a

13 sort of -- sort of pre-contractual negotiations in a

14 way. But what you are mentioning here is something

15 different. Is those parties, while members of ETSI,

16 afterwards where into a litigation together and one of

17 them says you must license at a component level. And

18 this litigation you are asking me whether this

19 litigation will be an element that a judge will take

20 into account to interpret ETSI policy and here I am

21 saying I don't think so.

22 Q. So the statements of parties that are made

23 after the ETSI policy is finalized would not be

24 relevant?

25 A. I'm not saying this. It all depends on the

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1 context. If it's within the litigation between two

2 parties, one license -- licensor -- well, one patent

3 holder and one licensee or prospective licensee, I

4 don't know, it's a completely different context. If

5 the statement is made within the context of ETSI by

6 these parties it's another thing. What I'm saying is

7 that a French court will find it too remote to rely on

8 the statement made by Ericsson or made by Qualcomm in a

9 litigation between the two of them. It's a very

10 different situation than a subsequent statement that

11 would be made within the context of ETSI, like during

12 the general Assembly, for instance.

13 Q. So statements made in the context of ETSI, such

14 as statements during the general Assembly, might be

15 relevant to a French court's interpretation of the ETSI

16 IPR policy, even if those statements were made after

17 the policy was finalized; is that fair?

18 A. What I think is fair in what you said is that

19 subsequent elements, such as general Assembly

20 decisions, might be relevant. A mere statement by one

21 member is not very relevant. A general Assembly

22 decision is much more relevant than a statement by one

23 member.

24 Q. How many members does the general Assembly have

25 right now?

134

1 A. I do not know but...

2 Q. Do you know approximately, is it more than 100?

3 A. I would tend to think that it is.

4 Q. Are there members of the general Assembly right

5 now who are not represented in ETSI when the ETSI IP --

6 IPR policy was drafted?

7 A. I do not know the answer but it's possible.

8 Q. Hypothetically, let's suppose the ETSI IPR

9 policy was drafted by about 30 people. Fair?

10 A. Yes.

11 Q. Hypothetically, let's suppose ETSI currently

12 has 400 members in the general Assembly.

13 A. Yes.

14 Q. It doesn't really matter what the 400 current

15 members of the general assembly think when we're asking

16 ourselves what the 30 drafters of the ETSI IPR policy

17 thought, does it?

18 MR. EARNHARDT: Object to the form.

19 A. It's -- it's not decisive but it's maybe an

20 element and along this line an element may be that the

21 members of the general Assembly have not refused to

22 incorporate Qualcomm's patents, even though Qualcomm is

23 not licensing at a component level.

24 Q. Do you know whether ETSI's general Assembly

25 members would open themselves up to antitrust liability

135

1 if they were to agree amongst each other not to include

2 Qualcomm's patents?

3 MR. EARNHARDT: Object to the form.

4 A. That I do not know.

5 Q. You don't know one way or the other why the

6 members of the general Assembly have decided not to

7 boycott Qualcomm's patents, right?

8 MR. EARNHARDT: Object to the form.

9 A. No. The reasons behind I do not know but the

10 fact is there.

11 Q. Do you know whether or not the antitrust

12 division of the United States Department of Justice has

13 publicly announced it would be an enforcement priority

14 if members of standard setting organizations were to

15 boycott technologies by intellectual property holders

16 who refused to honor FRAND commitments?

17 MR. EARNHARDT: Object to the form.

18 A. No. This is US matters and I am an expert on

19 French contract law, again.

20 Q. So if there are 30 people who draft the ETSI

21 IPR policy and then after that policy is drafted 370

22 more people joint general Assembly, let's assume these

23 people are all working for different companies, they're

24 just totally independent people. Okay. Are -- is it

25 relevant to a French court's interpretation of the ETSI

136

1 IPR policy how those 370 subsequent joiners of ETSI

2 interpreted the policy at the time they joined?

3 A. Firstly, I'm not sure a French court would be

4 in a position to know how each of these 370 members

5 interpret the policy. It will have to be very clear.

6 And so it's a very strange hypothetical in a very

7 unique situation here. The initial drafter's intent is

8 more important than the intention of the 370 that came

9 after the policy was drafted.

10 Q. So if the initial 30 drafters believed that the

11 ETSI I -- ETSI IPR policy did not require component

12 level licensing, if all 30 of them believed that, that

13 would control because that is the intent of the parties

14 who drafted the policy, right?

15 A. I suppose so that would -- a judge will need

16 very strong evidence that it's no longer the parties'

17 intention and it would be rather dangerous for a judge

18 to say that in spite of this intention of the drafters

19 of the policy, in spite of the fact that the policy has

20 not been changed, yet the intention is not that one.

21 Q. I think you jumped ahead to my next question,

22 so I just wanted to -- let's pretend we don't know what

23 the 370 subsequent joiners believe. If we have

24 compelling evidence that all 30 of the initial drafters

25 of the ETSI IPR policy believed that it did not require

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1 licensing at the component level, a French court

2 interpreting a standard essential patent holders's

3 obligation would vindicate the intent -- intent of

4 those original 30 drafters and hold that component

5 level licensing is not required, right?

6 A. Component is not required. I really think,

7 yes, this is right because then it would consider there

8 is -- in your hypothetical there is a clear intention

9 assessed by these 30 initial drafters not to impose

10 this, so I don't see why a French court will change.

11 Q. And it doesn't matter if all 370 subsequent

12 joiners to ETSI share that understanding or not, right?

13 A. What would matter if -- if the policy was

14 changed?

15 Q. Hypothetically, assume the policy -- the words

16 of the policy stay exactly the same. 370 people join

17 who do not read the policy the same way the original 30

18 intended.

19 A. Right. Right. Well let's turn back to the

20 French civil code and it's more my area of expertise.

21 It says that, a contract is to be interpreted according

22 to the common intention of the parties rather than

23 stopping at the literal meaning of its terms. And it

24 then says, where this intention cannot be discerned, a

25 contract is to be interpreted in the sense which a

138

1 reasonable person placed in the same situation will

2 give it. The second sentence has been added a new

3 Article 1188. So I think we -- I should answer your

4 question in the light of this basic principal,

5 particularly of the first sentence which is really an

6 important role that you have to interpret the contract

7 according to the common intention of the parties. And

8 there is one common intention that's in your

9 hypothetical is clear and sure, this is the common

10 intention of the 30 initial parties and this common

11 intention and the wording will surely was not to

12 include the component in this FRAND commitment or

13 obligation. Therefore, I think a judge will stick to

14 that.

15 Q. What if the original 30 parties had never

16 thought about this issue? What if they had no common

17 intention regarding whether the IPR policy imposes a

18 duty to license at the component level?

19 A. It makes things more difficult but, again, I

20 insist on the fact that you cannot add to the wording

21 of a contract other word or add something. The role of

22 the judge is not to remake the contract, even if it

23 seems more equitable or more fair, the judge must apply

24 the contract. So this was not entered by the parties

25 to barter, it was not envisage. And in the ETSI

139

1 context, I think that there is a solution which will be

2 to change the rule and the policy and the judge will

3 take as a very important factor the fact that the

4 policy has not been changed.

5 Q. So a judges should neither add terms to

6 contract nor ignore terms that are in contracts, right?

7 A. This is true, yes.

8 Q. Under French law what happens where parties

9 have attached different meanings to the term of a

10 promise or agreement?

11 A. Well, then you are in a situation where the

12 intention of the -- the common intention of the parties

13 cannot be assessed because there is no common

14 intention, there was different meanings attached. And

15 this is when the judge would resort to the second

16 sentence of Article 1188 where this intention cannot be

17 discerned because there's no common intention, they

18 each had a different meaning in mind. A contract is to

19 be interpreted in the sense which a reasonable person

20 placed in the same situation will give to it.

21 Q. So we ask how would a reasonable person have

22 interpreted the terms that appear on the face of the

23 contract?

24 A. Yes. This is a more objective approach.

25 Q. So you don't know one way or the other if the

140

1 folks who drafted the ETSI IPR policy ever thought

2 about whether someone might manufacture chip sets and

3 not also manufacture handsets, do you?

4 MR. EARNHARDT: Object to form.

5 A. It seems that you told me before that they had

6 not thought about it, didn't you?

7 Q. Well I don't want to make representations to

8 you. I'm asking you, do you know one way or the other

9 if it ever occurred to the draft of the ETSI IPR policy

10 that somebody might manufacture chip sets and not

11 manufacture handsets?

12 A. I mean, who would know what occurred in the

13 mind of the 30 drafters of the policy. It's very

14 difficult to know.

15 Q. Because at the time the policy was drafted,

16 Ericsson manufactured both chip sets and handsets and

17 infrastructure, right?

18 A. This is what you seem to say, so I say yes.

19 Q. I may have already asked this, but just to make

20 sure it's clear, you don't know one way or the other

21 whether any company involved in drafting the ETSI IPR

22 policy manufactured chip sets and did not also

23 manufacture handsets and infrastructure equipment,

24 right? I think I might have asked.

25 A. Manufactured only chip sets?

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1 Q. Correct.

2 A. And it was involved in the drafting of the

3 policy?

4 Q. Correct.

5 A. And then it would not have said anything about

6 the way the policy is drafted?

7 Q. I'm just asking, do you know way one way or the

8 other?

9 A. No, I do not know.

10 Q. If any company involved.

11 Do you know if at the time the ETSI IPR policy

12 was drafted, Qualcomm manufactured chip sets and also

13 handsets and also infrastructure equipment?

14 A. I do not know.

15 Q. When considering industry practice, what

16 products would a French judge consider involved in the

17 industry impacted by ETSI's IPR policy?

18 A. I'm not sure I understand your question.

19 Q. Well, so we've been discussing mobile

20 communications equipment in general?

21 A. Uh-huh.

22 Q. Right? Would a French judge, attempting to

23 interpret industry practice relevant to the ETSI

24 policy, only consider industry practice involving

25 products that comply with ETSI standards, or would the

142

1 judge also consider industry practice regarding

2 products that implement other mobile communication

3 standards?

4 A. The first thing I want to record here is that

5 the judge would not consider industry practice if he

6 was confident that the plain language of ETSI doesn't

7 need him to have recourse to industry practice to

8 interpret.

9 It's only subsidiary element because, in my

10 opinion, a French judge would consider that the

11 language is plain and clear and, therefore, industry

12 practice need not be considered. Then having said

13 that, you asked me what the judge will consider in

14 industry practice and I think he would consider the

15 different license contracts and the practice of how

16 these contracts are drafted, rather than the products

17 themselves.

18 Q. What I'm trying to understand is, at the time

19 the ETSI IPR policy was drafted, there were other

20 wireless communication standards, notably CDMA One.

21 Are you familiar with CDMA?

22 A. No.

23 Q. So CDMA One is a wireless air interface

24 standard that was not promulgated by ETSI. Okay? I'll

25 represent that to you.

143

1 A. Yes.

2 Q. Qualcomm had licensed, I will represent,

3 various companies to its CDMA One essential patents at

4 the time the ETSI IPR policy was drafted. If we

5 hypothetically assume that's true, would the licensing

6 practices, relevant to CDMA One technology, be

7 considered part of the industry practice relevant to

8 the interpretation of the ETSI IPR policy?

9 A. You just said that CDMA One was not within the

10 ambit of ETSI.

11 Q. Correct. Right.

12 A. So I think that it would not be directly

13 relevant. The relevant industry practice would be the

14 industry practice within the scope of ETSI.

15 Q. What does that mean, the industry practice

16 within the scope of ETSI?

17 A. Well, for those standards that are set by ETSI.

18 Q. So Qualcomm's practices licensing its CDMA One

19 technology would not be considered a relevant industry

20 practice by a French judge attempting to construe the

21 ETSI IPR policy, right?

22 A. It might not be disregarded all together but it

23 would not be the most relevant industry practice,

24 because it's not a standard set by ETSI.

25 Q. So the practices of the participants in ETSI

144

1 standards would be more relevant than Qualcomm's

2 practices, regarding CDMA One technology. Right?

3 A. Can you say the question again.

4 Q. So the practices of those companies who

5 licensed technologies relevant to the ETSI standard,

6 would be more relevant than the licensing practices of

7 patent holders who license patents relative to CDMA One

8 technology, right?

9 A. I haven't considered this question. There is

10 some logic in what you suggest but it's difficult for

11 me to be assertive on this point because I haven't

12 given it a thought before.

13 Q. Because Ericsson -- strike that.

14 What if the participants in drafting the ETSI

15 policy had already been licensed by Qualcomm under its

16 CDMA One patents and, therefore, knew what Qualcomm's

17 licensing practices were. Would that I impact the

18 relevance of Qualcomm's CDMA One licensing practices

19 one way are the other?

20 A. Wow, I need to see that question. It's too

21 long, too complicated.

22 Q. Sure. Hypothetically, lets assume there are

23 four companies who are involved in drafting the CDMA --

24 strike that.

25 Let's assume that half the companies who were

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1 involved in drafting the ETSI IPR policy had, at that

2 time, become familiar with Qualcomm's licensing

3 practices regarding the CDMA One standards. Is that

4 hypothetical clear?

5 A. Yes, I know about Qualcomm's practices. Okay.

6 Q. Regarding CDMA One technology?

7 A. Uh-huh.

8 Q. Would Qualcomm's practices regarding CDMA One

9 licensing be relevant to a French judge's

10 interpretation of the intent of the drafters of the

11 ETSI IPR policy?

12 A. In a very last resort. If he had really

13 nothing else to find out about this intent, and I doubt

14 that he wouldn't have nothing else, because there is

15 the history of the negotiation of ETSI policy, which

16 would be much more directly relevant than what you

17 suggest.

18 Q. So when you say in the very last resort, you

19 mean it would not be a particularly persuasive piece of

20 evidence for the judge, if they had other indications

21 of the intent of the drafters?

22 A. I think this is what I mean, yes.

23 Q. So the fact that Qualcomm refused to license at

24 the component level for CDMA One is not relevant to the

25 interpretation of the intent of the drafters of the

146

1 ETSI IPR policy, right?

2 MR. EARNHARDT: Objection to the form.

3 Misstates her testimony.

4 A. It's not exactly what I've said. I've said

5 that it's not the most important element. It will be

6 relevant if there was no more decisive element. And I

7 believe that the history of the negotiations t ETSI

8 will be the first element that a judge would take into

9 account. Because in France, we have this tradition, a

10 bit like when you write a law, a statute to interpret

11 the statute, the French judge will first look at what

12 we call a travaux preparatoires, preparatory work of

13 the statute, and it's a bit the same for ETSI policy.

14 The first thing that the judge will look at to assess

15 the intention of the party would be the preliminary

16 discussions and work concerning ETSI.

17 Q. But in reaching your opinions in this matter

18 you did not investigate the preliminary discussions and

19 work concerning the formation of the ETSI policy, other

20 than by talking to Mr. Huber, right?

21 A. This is -- I think we can say that because I

22 did not look at documents of the negotiation history,

23 and also because I was easily convinced that the

24 language is plain and clear and that a French judge

25 would not have to go beyond and will not have to

147

1 investigate because he would consider the language is

2 clear.

3 Q. In order to determine the language was clear,

4 you had to find out from Mr. Huber what was meant by a

5 system or device fully conforming to the standard,

6 right?

7 MR. EARNHARDT: Object to the form.

8 A. I asked him what was meant by this but, as I

9 said before, I was more impressed by the fact that in

10 the definitions of -- by the definitions of equipment

11 and manufacture, and particularly the definition of

12 equipment, that we have already discussed.

13 Q. And you determined that the language of the

14 ETSI IPR policy was clear and unambiguous but you never

15 considered whether the first bullet of 6.1 provides

16 that standard essential patents holders must license

17 the manufacturer's components to manufacture components

18 and subsystems to the licensees's own design for the

19 use in the manufacture of equipment by folks other than

20 the licensee, right?

21 MR. EARNHARDT: Object to the form.

22 A. This is not right. You cannot say that I never

23 considered it because I think I've mentioned it in my

24 report.

25 Q. Where?

148

1 A. Let us see. I considered it when I considered

2 the express language of Clause 6 on page 11, CX0057013

3 and it's the last paragraph before negotiation history.

4 I say, moreover, the ETSI policy itself draws a

5 distinction between component and equipment reenforcing

6 this point. The policy refers to components separately

7 from equipment, Section 6.1 of the IPR policy entails

8 only the right to make or have made components for use

9 in manufacture, i.e., the production of complex

10 devices. It does not intend the right to FRAND license

11 to sellees or otherwise dispose of components on their

12 own. In contrast, a license regarding equipment, i.e.,

13 a complete device and tells the rights to sell, lease

14 or otherwise dispose of it. Thus, the ETSI IPR policy

15 does not require a SEP holder to offer a license to a

16 seller of components.

17 Q. So you say in the third to last sentence,

18 Section 6.1 of the IPR policy entails only the right to

19 make or have made components for use and manufacture,

20 i.e., the production of complete devices, right?

21 A. Yes, I see that.

22 Q. So that means the ETSI IPR policy requires

23 holders of standard essential patents to license makers

24 of components to make components as long as those

25 components are for use in the manufacture of equipment,

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1 right?

2 A. It includes the right to make or have made

3 customized components. It does not require.

4 Q. It requires standard essential patent holders

5 to offer licenses to make components, as long as those

6 components are for use in the manufacture of equipment,

7 right?

8 MR. EARNHARDT: Object to the form. Misstates

9 her prior testimony.

10 A. I think we discussed already this sentence,

11 which is not in my native language as I said before,

12 and I think I'd prefer not distorting the words, so it

13 says what it says.

14 Q. Did you reach the opinion in this matter that

15 the ETSI IPR policy does not require Qualcomm to

16 license a maker of components to Qualcomm's standard

17 essential patents, even if that licensee wants to make

18 components for use in manufacture of equipment as

19 manufacture and equipment are defined in the ETSI IPR

20 policy?

21 A. If I had reached this conclusion, it wouldn't

22 be in contradiction with this sentence, wouldn't it?

23 Q. I'm sorry. Would you like the question

24 repeated?

25 A. So I didn't think I would have reached this

150

1 conclusion because I wouldn't have reached a conclusion

2 which would be in contradiction with what is said by

3 ETSI policy in 6.1 and it says, manufacture including

4 the right to make or have made customized components

5 and subsistence to the licensee's own design for use in

6 manufacture.

7 Q. Turning to your response to question two on

8 page 13 of your report CX0057-015.

9 A. Yes. Perhaps we can have a small break before?

10 MR. MATHESON: Sure.

11 THE VIDEOGRAPHER: We are going off the record.

12 The time is 2: 26.

13 (A recess was taken.)

14 THE VIDEOGRAPHER: We are going back on the

15 record. The time is 2:37.

16 Q. Okay. We were focused on your response to the

17 second question you pose in your report, quote, can a

18 third party beneficiary invoke the FRAND commitment to

19 challenge a license after agreeing to it. Okay? Now,

20 you're not offering the view that a United States court

21 lacks the power to invalidate a duly executed license

22 agreement between Qualcomm and a licensee as a form of

23 a injunctive relief under the antitrust laws, are you?

24 A. I don't think I am, no.

25 Q. And you're not offering the view that a United

151

1 States court could invalidate a license agreement

2 between Qualcomm and a licensee on the basis that the

3 agreement violated public policy, are you?

4 A. No, I'm not.

5 Q. And you're not offering the view that a French

6 court is powerless to invalidate a contract between

7 Qualcomm and a licensee if, hypothetically, the French

8 court were to determine that the contract violated

9 public policy, are you?

10 A. That is a different question. Now which will

11 be governed by French law. I'm not offering a view on

12 what a French court would do as we got the license

13 contract because the license contract is not governed

14 by French law.

15 Do you want to ask me the question again,

16 perhaps it will make it clearer?

17 Q. No, that's fine. You're not offering the view

18 that a United States court is powerless to hold that

19 ETSI's IPR policy violates the United States antitrust

20 laws, are you?

21 A. I'm not offering a view on antitrust law.

22 Q. You're not offering the view that a European

23 court is powerless to hold that ETSI's IPR policy

24 violates European competition law, are you?

25 A. Again, I am not giving any opinion on

152

1 competition law, neither US nor European competition

2 law.

3 Q. So you stated on CX0057-015, page 13 of your

4 report, quote, under French law a current license

5 cannot be invalidated on the basis that its terms do

6 not comply with FRAND. Right?

7 A. This is right.

8 Q. What you mean -- strike that.

9 You don't mean that under French law a current

10 license cannot be invalidated for any reason -- or

11 strike that.

12 There are reasons other than a licenses's

13 failure to comply with FRAND that would support a

14 French court invalidating a license between Qualcomm

15 and one of its licensees, right?

16 A. What I don't mean is a sentence that would be

17 just under French law. A current license cannot be

18 invalidated, full stop. That's not what I meant. I

19 meant cannot be invalidated on the basis that its terms

20 do not comply with FRAND.

21 Q. Are you familiar with the term fraud in the

22 inducement as a term of contract law?

23 A. I think you mean in US contract law or in

24 French contract law?

25 Q. I meant US and I'll ask if there's a parallel

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For The Record, Inc.

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1 concept in France. So are you familiar with the

2 outlines of that concept under US law?

3 A. Sort of.

4 Q. Is there a parallel concept under French

5 contract law?

6 A. There are -- there is a concept of fraud in

7 French contract law but I don't think this is the

8 concept that you have in mind. It will be more

9 inducement. When you say fraud and inducement you mean

10 vitiating the content.

11 Q. What I meant was fraud in the inducement,

12 meaning that a false representation was made in order

13 to induce someone to enter a contract.

14 A. Right.

15 Q. Is there a concept under French law that would

16 support the invalidation of a contract based on a fraud

17 that caused the counterparty to enter the contract?

18 A. So I think you mean something like the English

19 would say misrepresentation?

20 Q. Yes.

21 A. We have no concept of misrepresentation under

22 French law but we have the concept of vitiating factors

23 that vitiate your constant. It was -- it can be either

24 because you have made an error or a mistake, so we have

25 three categories. We have mistake, we have fraud,

154

1 dull, which I consider as fraud, and violence. And

2 these three categories of vitiating, of vice de

3 consentement, so they will just vitiate your consent

4 and then it can bring -- it can lead to the nullity of

5 the contract.

6 Q. Sorry. Which one can lead to the nullity of

7 the contract?

8 A. Either one. Either mistake or fraud or

9 violence.

10 Q. So I'll represent that under the Second

11 Restatement of Contracts in the United States there's a

12 provision that says that when parties attach different

13 meanings to a term under certain conditions neither

14 party can be bound by the meaning attached by the

15 other, even though the result is a failure of mutual

16 ascent. Is there a parallel concept in French law

17 relating to mistake?

18 A. Mistake is -- it sounds a bit like this but the

19 consequence is different because it brings nullity of

20 the contract.

21 Q. So under French law if the parties fail to

22 attach the same meaning to a term, under some

23 circumstances it can result in nullity of the contract?

24 A. The circumstances are defined and under, as you

25 say, under some circumstances not in every case.

155

1 Q. What are the circumstances?

2 A. Of mistake leading -- a mistake being a cause

3 of nullity.

4 Q. Correct. What are the circumstances under

5 which mutual mistake can lead to the nullity of a

6 contract?

7 A. It has to be a mistake on the very fundamental

8 element and it cannot be a mistake as to the price.

9 Q. So it has to be a mistake on a fundamental

10 element relating to contract performance rather than

11 compensation; is that right?

12 A. Relating to the object of the contract. You

13 believe that you are going to buy a painting of Claude

14 Monet. You know Monet? And it's a painting of Manet

15 with another famous painter.

16 Q. I like Manet better.

17 A. So let's put it the other way around. So it's

18 rather a mistake on the object. You believe that it's

19 in gold and it's not gold or something like that. It

20 cannot be a mistake as to the value of the contract.

21 It's very restrictive.

22 Q. Can a French court nullify a licensing

23 agreement on the basis that the royalty is

24 unconscionable?

25 A. No, it cannot.

156

1 Q. Can a French court nullify a contract because

2 it is a contract of adhesion?

3 A. Contract?

4 Q. Are you familiar with the term contract of

5 adhesion in US law?

6 A. Yes. Standard form contract, as opposed to a

7 baseball contract.

8 Q. Let's -- let's say for the purpose of this

9 question we'll define a contract of adhesion as a

10 contract that one party has no choice but to accept.

11 A. Yes.

12 MR. EARNHARDT: Just let me object to the

13 definition of that word.

14 Q. Under some circumstances, a United States court

15 might set aside a contractual obligation undertaken

16 pursuant to a contract of adhesion. Are you familiar

17 with that concept?

18 A. Yes, I am. It has been introduced in our new

19 law of contract, it's been the most controversial part

20 of the reform because previously we did not have it,

21 except for consumer law. And now in our civil code

22 Article 1171, we have introduced the possibility for a

23 judge to strike out a clause in a contract of adhesion,

24 which would be manifestly excessive and this clause

25 then can be just deleted. The contract will not be

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1 null or void, but the clause can go away and,

2 therefore, it cannot be something which relates to the

3 price or to the object. It has to be a clause like an

4 exemption clause or something like that. So we have

5 introduced this. It's very new, highly criticized by

6 businesses because it's introducing the power of the

7 judge into the contract.

8 Q. Could the new Article 1171 allow a judge to

9 strike a cross license from a contract of adhesion?

10 A. To strike -- it allows only the striking out of

11 a clause of one term not the cross license as a whole.

12 Q. Well, a cross license could be one term, right?

13 MR. EARNHARDT: Object to the form.

14 A. I would need to see the contract. And also, it

15 would have to be a contract concluded after the reform

16 was passed.

17 Q. And by cross license what I mean -- well,

18 strike that. It doesn't matter.

19 Does French contract law presume that every

20 contract imposes upon each party a duty of good faith

21 and fair dealing?

22 A. There is a general principle of good faith in

23 French contract law.

24 Q. Now you haven't assessed whether Qualcomm's

25 contracting principles harm consumers in any way, have

158

1 you?

2 A. No, I haven't. I haven't been asked to deal

3 with this question.

4 Q. And you haven't assessed whether Qualcomm's

5 licensing practices harm its rivals in any way, have

6 you?

7 A. No. This is not a question I have dealt with.

8 Q. You haven't assessed whether Qualcomm's

9 contracts with Apple have harmed any of Qualcomm's

10 rivals, right?

11 A. No, I have not.

12 Q. Do you know what the FTC means by Qualcomm's no

13 license no chips policy?

14 A. I remember having encountered this expression

15 but now, right now I wouldn't adventure into an

16 explanation.

17 Q. Have you reached a conclusion regarding whether

18 or not Qualcomm refuses to offer patent licenses to --

19 strike that.

20 Have you reached a conclusion regarding whether

21 or not Qualcomm refuses to supply baseband processors

22 to unlicensed manufactures of handset devices?

23 A. I have not reached a conclusion on this, nor

24 did I give an opinion on this.

25 Q. You haven't analyzed that question one way or

159

1 another?

2 A. No.

3 Q. You have no opinion whether or not that has

4 harmed Qualcomm's rivals, right?

5 A. Sorry?

6 Q. Whether or not such a policy, if it exists,

7 have harmed Qualcomm's rivals?

8 A. I have no opinion on this. I am not an

9 economist.

10 Q. You're not offering an opinion on the scope of

11 -- strike that.

12 You're not offering any opinion on the

13 injunctive relief that might be appropriate should the

14 United States court find that the antitrust law has

15 been violated, are you?

16 A. No, I am not.

17 Q. I'm not sure if we have discussed. On page two

18 of your report -- sorry page one of your report, you

19 identify testimony by deposition or at trial the expert

20 witness of Ericsson versus Samsung and Samsung versus

21 Ericsson of the US ITC. The first bullet, Ericsson

22 versus Samsung, investigation number 337-TA-862. What

23 opinion did you offer in that matter?

24 A. I think, but now I'm not sure between the two,

25 but I think it was mostly on the question of FRAND

160

1 negotiations and good faith and what is the meaning of

2 the FRAND obligation. And also the stipulation for the

3 benefit of third party, if my remember -- if I remember

4 well.

5 Q. Did you offer in that matter the expert opinion

6 that the ETSI IPR policy was clear and unambiguous,

7 regarding the meaning of FRAND?

8 A. That I don't remember whether I put it in those

9 words.

10 Q. In the second bullet, Samsung versus Ericsson,

11 investigation number 337-TA-866. In that matter, did

12 you offer the expert opinion that the ETSI IPR policy

13 was clear and unambiguous with respect to the meaning

14 of FRAND?

15 A. Again, I don't remember but it's public, isn't

16 it?

17 Q. Do you recall one way or the other having

18 formed a view, prior to your retention in this matter,

19 whether ETSI's IPR policy is clear and unambiguous with

20 respect to the meaning of FRAND?

21 A. What I remember is having often referred to

22 Article 6, which is really important, and having

23 discussed the terms of Article 6, and mainly the fact

24 that you commit yourself to be prepared to grant

25 irrevocable licenses on fair, reasonable and

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1 nondiscriminatory terms and conditions. That was the

2 key element of my expertise.

3 MR. MATHESON: Thanks very much for your time.

4 Greatly appreciate it. That's all the questions I have

5 unless there's redirect.

6 MR. EARNHARDT: I have no questions.

7 THE VIDEOGRAPHER: This concludes today's

8 deposition. The time is 2:55. We are now off the

9 record.

10 (Whereupon, at 2:55 p.m., the deposition was

11 adjourned.)

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1 C E R T I F I C A T I O N O F R E P O R T E R

2 DOCKET/FILE NUMBER: 5:17-cv-0220-LHK-NMC

3 CASE TITLE: FTC vs. QUALCOMM, INCORPORATED

4 DEPOSITION DATE: August 16, 2018

5

6 I HEREBY CERTIFY that the transcript contained

7 herein is a full and accurate transcript of the notes

8 taken by me at the hearing on the above cause before

9 the FEDERAL TRADE COMMISSION to the best of my

10 knowledge and belief.

11

12 DATED: 8/17/18

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15 s/Stefanie Krut

16 STEFANIE KRUT

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1 CERTIFICATE OF DEPONENT

2

3

4 I hereby certify that I have read and examined

5 the foregoing transcript, and the same is a true and

6 accurate record of the testimony given by me.

7

8

9 Any additions or corrections that I feel are

10 necessary I will attach on a separate sheet of paper to

11 the original transcript.

12

13

14 I hereby certify, under penalty of perjury,

15 that I have affixed my signature hereto on the date so

16 indicated.

17

18

19 DATED:

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22

23 BENEDICTE FAUVARQUE-COSSON

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1 WITNESS: BENEDICTE FAUVARQUE-COSSON

2 DATE: AUGUST 16, 2018

3 CASE: FTC v. QUALCOMM, INC.

4 Please note any errors and the corrections thereof on

5 this errata sheet. The rules require a reason for any

6 change or correction. It may be general, such as "to

7 correct stenographic error" or "to clarify the record"

8 or "to conform with the facts."

9 PAGE LINE CORRECTION REASON FOR CHANGE

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