UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

Transcription

1 0 0 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION PRISUA ENGINEERING CORP., ) ) Plaintiff, ) Case Number ) v. ) :-cv--kmm ) Samsung Electronics CO., ) LTD., et al., ) ) Defendants. ) ) Appearances: Volume IV Transcript of the jury trial - (day four) before the Honorable K. Michael Moore February, 0; : a.m. Miami, Florida Counsel for Plaintiff: John C. Carey Juan Rodriguez David M. Levine Amy M. Bowers Counsel for Defendants: Richard A. Edlin Ronald J. Pabis David A. Coulson Stephen K. Shahida Jennifer A. Surprenant Proceedings recorded by mechanical stenography, transcript produced by computer. Diane Peede, RMR, CRR, CRC Federal Official Court Reporter 00 North Miami Avenue, Eighth Floor Miami, Florida

2 Index of transcript 0 Page Jury charge conference Closing arguments By Mr. Carey, By Mr. Edlin The Court charges the jury Verdict

3 0 0 P R O C E E D I N G S THE COURT: So do you have a set of the proposed instructions? I'll go through these instructions by page and -- actually, the page numbers will -- the numbers themselves will come out in the final copy. But just for the conference, we will reference them by the page number at the bottom of the page. So page, no objection. Page, standard instructions. No objection. If I don't hear any objection, I'm -- MR. CAREY: No objection. THE COURT: Okay. Page, as I said before, you must consider only the evidence. Page, standard instruction when I say you must consider all the evidence. Page, you should also ask yourself whether there was evidence that a witness testified falsely, the standard instruction. When scientific evidence, expert testimony, page. No objection. MR. CAREY: No objection. THE COURT: Page, Prisua's burden of proof. MR. CAREY: No objection. THE COURT: Page, Samsung's burden of proof. No

4 objection. 0 0 Page 0, patent introduction to the patent instructions. No objection. Page, the Markman definitions. MR. CAREY: Your Honor, I have a comment on the paragraph before the definitions are set forth. THE COURT: All right. Tell me. MR. CAREY: Okay. In the preliminary instructions that corresponds to this same concept -- THE COURT: Right. MR. CAREY: -- I'm going to refer to the entered preliminary instructions at ECF0- and page 0 of. Okay. After the Court in that preliminary entered instruction says, "It's your job to take these definitions and apply them," there's an ending sentence in that preliminary instruction that states as follows: Quote, In addition to the definitions of the claim terms that I have determined, I have determined that the language in the preamble of the asserted claims is not a limitation on or, in other words, is not a requirement of the claims." And I would -- plaintiff requests that that same sentence there be added to page before the last sentence of the first paragraph. So after the Court says, "You must accept the meanings," after that sentence, I would -- plaintiff requests

5 0 0 that that sentence about the preamble not limiting be put in right there and then that next sentence would carry on and then the glossary. THE COURT: Is that not covered anywhere else in the instructions? MR. CAREY: It is not, Your Honor, not in the final. THE COURT: Any objections to including that? MR. PABIS: I would say it's unnecessary, Your Honor. They have already been charged on that. There's no argument about any of the limitations of the preamble. THE COURT: All right. Martha, do you -- (Discussion off the record between the Court and the law clerk.) THE COURT: So we'll go ahead and include that in there. MR. CAREY: Thank you, Your Honor. THE COURT: I don't think it hurts. And I don't think anybody is going to be arguing it. All right. So page -- MR. PABIS: Your Honor, also on page, we have an objection which we filed last night, and that is that we -- it's Samsung's position that the chart does not reflect the full scope of the Court's Markman order.

6 0 0 THE COURT: Okay. That's a consistent objection you had. So the same ruling. Page, any objection? MR. CAREY: No, Your Honor. THE COURT: Okay. Page, no objection. Page, definition, statutory definition. Page, introduction to the rules. MR. CAREY: No objection. THE COURT: Page, someone can directly infringe. No objection. Page, in this case, Prisua has alleged. No objection. Page, Prisua has accused three types of Samsung products in this case. No objection. Page, Prisua also contends that Samsung has willfully infringed. MR. PABIS: Yes, Your Honor. Samsung objects for the reasons as stated earlier in its filing last night. THE COURT: That is just the evidence is insufficient to go to the jury on this question? MR. PABIS: That's right, Your Honor. THE COURT: Okay. I'll note the objection and deny it. Page 0, only a valid patent may be infringed. No objection.

7 0 0 Page, the patent is presumed to be valid. MR. PABIS: Yes, Your Honor. Samsung objects to charging the jury on the presumption and on the clear and convincing standard of proof as redundant for the reasons stated in its objections that it filed last night. THE COURT: Well, when you say it's redundant, where -- are you talking about the presumption of validity? MR. PABIS: Yes. So in the Kyron case, which we cited to Your Honor, the Court there held that the presumption of validity and the burden of proof, clear and convincing evidence are really the -- the same way of -- are different ways of saying the same thing. So if the jury is charged both on the presumption and on clear and convincing, it sets up a potential for the belief that the burden is actually higher than it is. The burden is clear and convincing. That includes the presumption already. That's why it's clear and convincing. So to charge them twice on that is unnecessary. THE COURT: Okay. Two points on that. When you said it was -- this presumption of validity instruction is found nowhere else in the instructions, is it? MR. PABIS: Not at this point. THE COURT: Okay. MR. CAREY: It was in the preliminary. MR. PABIS: But they're charged on the clear and

8 0 0 convincing standard. THE COURT: I understand. I'm just talking about these particular instructions. Secondly, is this a standard pattern jury instruction? MR. CAREY: Yes, Your Honor. THE COURT: Okay. And, thirdly, was the case that you cited, was that -- did they find it to be reversible error to give this instruction? MR. PABIS: Well, the Kyron case said it was appropriate, that the judge actually didn't instruct the jury on the objection of the defendants, and the Federal Circuit agreed with that. THE COURT: That it was okay not to give it? MR. PABIS: Yes. THE COURT: But not that it was wrong to give it? MR. PABIS: Well, in the district court cases, the district courts have said it is wrong to give it. Judge Bryson sitting by designation has opined that it is wrong to give an instruction on the presumption of validity. THE COURT: But where it was given, they did not reverse on the giving of the instruction? MR. PABIS: We have not cited to a case on that, Your Honor. MR. CAREY: We cited some cases, Your Honor, where

9 0 0 it was not -- where it is affirmed to give the instruction of presumption of validity. THE COURT: I'll note the objection and deny it. Page, no objection. MR. PABIS: Yes, Your Honor. Samsung objects to this written description charge because it is incomplete. If does not have the language or the concept that's set forth in the Rivera case from 0 in the Federal Circuit that you can't supplement the specification with the knowledge of one of skill in the art if the specification is completely lacking in any disclosure. And the charge that we have has language in it which basically says the existing knowledge in the relevant field, and that suggests that you could possibly supplement what's in the specification with what's known in the art. MR. CAREY: That's -- THE COURT: So are you objecting to any particular language? I mean, I'm looking at Paragraph, which seems to be your area of concern. But I don't want to confine you to that. MR. PABIS: No. We would propose the addition of language that makes it clear that if a limitation is completely missing in the specification, it can't be filled in, basically, with the knowledge of one of skill in the art. Knowledge of one of skill in the art can't substitute for a

10 0 0 0 missing disclosure. MR. CAREY: Your Honor, this is a model instruction, and I disagree with counsel's characterization of the legal standard there. The standard is what people of skill in the art would recognize the specification to describe, and that's what this model instruction sets forth. MR. PABIS: The model instruction -- the Rivera case is pretty clear that the background knowledge of those of skill in the art can't substitute for teaching the specification to show possession of or provide written description support for the limitation. If there's nothing there at all, you can't fill that in just with knowledge of the person of skill in the art. THE COURT: Okay. I understand your objection. I'm going to rely on the pattern instruction. I think it adequately covers the instruction. And that goes to page as well. Page, prior art. MR. CAREY: No objection. THE COURT: No objection. Page. MR. PABIS: Your Honor, Samsung would just request that in addition to inherency -- THE COURT: Are we talking about page or.

11 0 0 MR. PABIS: Yes, page. Anticipation, lack of novelty. The MPEP includes not just express disclosures and inherent disclosures, but also implicit disclosures, and that's set forth in our objection last night. It's MPEP. MR. CAREY: Your Honor, the MPEP is a guideline for patent examiners to apply in the PTO. It has been expressly held by Courts not to constitute law for Courts to apply. It might be looked at as somewhat persuasive, but it's not legal authority in a court of law. THE COURT: I'll note the objection and deny it. That goes to page as well. Page, Samsung contends that the asserted claims are invalid because the claim inventions are obvious. MR. PABIS: We have one objection to this, Your Honor. It is Subpart on page. THE COURT: Right. MR. PABIS: In answers to interrogatories in this case, we asked Prisua to identify any objective indicia of non-obviousness. In other words, is there commercial success? Are there other objective indicia of non-obviousness, and they identified none. And so. suggests that you can look at objective indicia of non-obviousness, and that just shouldn't apply to this case. THE COURT: I'll note the objection. Denied.

12 0 0 Page. No objection. Page, damages. MR. PABIS: Yes. One thing, Your Honor. On both page and 0, there is language that says -- and if you look at the second paragraph, halfway down, it says, but the damage award cannot be less than a reasonable royalty. THE COURT: Hold on. Where are you again? You said which paragraph on which page? MR. PABIS: Actually, it's the third paragraph. Page. THE COURT: Okay. MR. PABIS: And the paragraph that starts: If proven by Prisua. THE COURT: I'm with you. MR. PABIS: The third line at the end, it says, but the damage award cannot be less than a reasonable royalty. Now, Prisua is only seeking a reasonable royalty. We believe that this language suggests that they may award more than a reasonable royalty because it says "not less than." And in the negotiations of the preliminaries, the parties had agreed to the following language: Quote, the type of damages sought by Prisua in this case is limited to a reasonable royalty, end quote. And we think that language should substitute for

13 0 0 the language that I just stated, which suggests that it might be more. THE COURT: And what is the language that you want? MR. PABIS: Let me read it again. Sorry. Quote, the type of damages sought by Prisua in this case is limited to a reasonable royalty, end quote. THE COURT: Do you have any objection to that? MR. CAREY: Your Honor, I'm looking to the preliminary at -- the preliminary -- I'm sorry, Your Honor -- the instruction that was entered that relates to this, 0- at page of. It does contain the language of the, quote, but in no event may the damage award be less than a reasonable royalty, because that comes straight -- I mean, that's explicit from Section of the patent statute. I don't think anyone could argue that that's properly in an instruction. There was another sentence in the preliminary that states: The type of damages sought by Prisua in this case is limited to a reasonable royalty. And that's our contention. That's all we're seeking, original royalty. So if -- if -- I don't object to a sentence that says -- I don't really think it goes in the instruction. I think it goes in the contentions of the parties, which had already been stated.

14 0 0 THE COURT: Do you have any objection to changing the language of the sentence "but a damage award cannot be less than a reasonable royalty" to "but the damage award is limited to a reasonable royalty"? MR. CAREY: Yes, I do. That's not the way it was done in the preliminary. I do object to changing what the Court has in here on that. I think what the Court has in here should stay in here, but I don't mind adding an additional sentence that says the type of damages sought by Prisua in this case is a reasonable royalty. And that was -- that was -- that was in the preliminary. I had no problem with that. THE COURT: Before we get to that, it's sort of adding something how about adding this. Leaving it in, "but the damage award cannot be less than a reasonable royalty, no more"? MR. PABIS: That's acceptable to us, Your Honor. MR. CAREY: How about -- how about, Your Honor, "but the damage award cannot less than a reasonable royalty, which is the type of damages that Prisua is seeking"? MR. PABIS: No. THE COURT: No more? Do you have a problem with "no more"? MR. CAREY: Well, then it says -- that's fine, Your Honor.

15 0 0 THE COURT: Okay. MR. CAREY: Your Honor, hold a second. I'm sorry. Can I confer with counsel? Your Honor, we do object to that. We do object to modifying that. I think Your Honor stated the -- cited the code precisely correctly. And our contention is only a reasonable royalty. To say "but can't be less but no more," I think it's very confusing. THE COURT: "Cannot be less than a reasonable royalty and no more." MR. PABIS: And, Your Honor, that would also apply to the next page, the first paragraph at the end of that sentence. THE COURT: What's that? MR. PABIS: So the end of the sentence on page 0 of the final instruction says "but may not be less than a reasonable royalty." THE COURT: Where is that? MR. PABIS: On page 0, Your Honor. It starts on line, at the end of line, "but may not be less than a reasonable royalty." THE COURT: "But may not be less than and no more than"? MR. PABIS: That would be perfect. THE COURT: All right. That's page and 0.

16 0 0 Page? MR. PABIS: Your Honor, on page, the only -- the only issue we have is this goes to the book-of-wisdom issue. You have a charge on the book of wisdom on page, and we believe that the charge on page should just be moved to right after this charge on page. And the reason is, at the end of the charge on page, it says, quote, you should also presume that the parties had full knowledge of the facts and circumstances surrounding the infringement at the time of the hypothetical negotiation. Well, that's true, but also the parties have knowledge of events before and after the hypothetical negotiation. That's captured on page, and we think it is better to charge that right after this charge on page. THE COURT: I don't have any problem with that. MR. CAREY: I don't have any problem either, Judge. THE COURT: So just make page page, Martha, okay? THE LAW CLERK: Yes, sir. THE COURT: Okay. The factors, Georgia-Pacific factors, at page and, which are now and, no objection? MR. CAREY: No objection. THE COURT: Page, no objection? MR. PABIS: No objection.

17 0 0 THE COURT: Page? MR. PABIS: No objection, Your Honor. THE COURT: Page? MR. PABIS: No objection. THE COURT: Page? MR. PABIS: No objection. THE COURT: Okay. The verdict form? MR. CAREY: We do -- MR. PABIS: Yes, Your Honor. We conferred on the verdict form. There is an issue on the second page, above Question. THE COURT: Okay. MR. CAREY: It's actually at the end of Question. MR. PABIS: Yeah, above Question, at the end of Question. THE COURT: All right. MR. PABIS: It's the language that starts with "If you answered no to Question." THE COURT: Right. MR. PABIS: That should be deleted. And, "If you answered yes" should be deleted, and it should just start with "proceed to answer Question." THE COURT: So you both agree to eliminate both of those?

18 0 0 MR. PABIS: Yes, because -- MR. CAREY: Well, Your Honor, this says that if they don't -- if the infringement is not willful, the verdict is for Samsung, but there still could be a verdict for the plaintiff if there's infringement but it's not willful. THE COURT: They never would have gotten to that. If they answered question no -- if they answered no to each asserted claim in Question, it tells them to go directly to sign and date the verdict form. So they never would have gotten to that question. MR. PABIS: That's right. THE COURT: So it should be left in, in my opinion. I mean, I don't mind taking it out if you both agree but -- MR. CAREY: We do agree, yes. THE COURT: But do you understand what I'm saying? I mean, they will never get to the question answering -- having to go and skip. If they have answered Question in the negative as to the four claims, they are told "If you answered no to each of the above claims, your verdict is for Samsung, and you should skip the remaining questions and sign and date the verdict form." MR. CAREY: That's Question. That's correct. THE COURT: That's right. All right. So that ends the discussion at that point. "Did Prisua prove that Samsung infringed the '

19 0 0 patent willfully?" If they answered -- they would only get to Question Number if they answered Question Number in the affirmative. MR. CAREY: Right. THE COURT: Okay? MR. CAREY: Right. THE COURT: So now let's say they find that the answer to Question is no, that it was not done willfully. MR. CAREY: Yes. THE COURT: "If you answered no to Question Number, your verdict is for Samsung." MR. CAREY: That's the problem because we still get damages if we had infringement. They don't -- they don't stop there. THE COURT: Okay. All right. All right. So delete that? MR. PABIS: Yes, and begin with "proceed to answer Question." THE COURT: Okay. So delete the "If you answered no to Question," okay, and then the next instruction is "If you answered yes, proceed to Question "? MR. CAREY: It should just be "proceed to Question," in our view. I believe we agreed on that. THE COURT: Okay. So just --

20 0 0 0 MR. PABIS: Because, Your Honor, obviously, they could -- they could answer yes to one of the claims in Question. THE COURT: All right. That's why they give me erasures. "Proceed to Question." Okay. What else? Everybody happy? MR. CAREY: On the -- after the boxes in number -- THE COURT: Right. MR. CAREY: -- the part that says "If you answered yes to all of the above claims," I would request, Your Honor, just for the sake of clarity that that use the kind of wording that the same sentence it has in number. So in number it says, "If you entered yes with respect to any claim in Question." THE COURT: Okay. MR. CAREY: I would request that the same part in Question read, after the check marks, and say, "If you answered yes as to all of the above claims in Question." THE COURT: "If you answered yes to all of the above claims in Question "? MR. CAREY: Yes, Your Honor. THE COURT: Okay. Any problem with that? MR. PABIS: We're adding "If you answered yes to

21 0 0 all of the above" -- THE COURT: -- "claims in Question," adding the -- so it's distinguishing it from any other question. MR. CAREY: Above? THE COURT: Above. MR. PABIS: That's fine. THE COURT: Okay. MR. PABIS: The other issue, Your Honor, is we believe that if the jury finds no infringement in response to Question -- THE COURT: Right. MR. PABIS: -- they may still proceed to Question and decide invalidity. MR. CAREY: That's totally wrong, Your Honor. If they had filed a declaratory judgment -- a counterclaim for declaratory judgment of invalidity, that would be correct, but they haven't done that. So that's precisely why these standard verdict forms say stop at infringement. That's the longstanding law at the Federal Circuit. In fact, I was just there a couple of months ago where there was an oral argument right before mine, and the jury proceeded -- it was an appeal of a jury verdict. The jury answered that question when they were told to stop. THE COURT: All right. Objection denied. MR. CAREY: There was a reversal on that.

22 0 0 THE COURT: All right. So we'll make the changes to the verdict form -- this should be pretty straightforward -- and the other changes, the paginations and -- Okay. Martha, here are my notes. MR. CAREY: Your Honor, could we request an of the verdict form once it's revised? THE COURT: You can. She's going to it it to me. What I would like to do, if the technology works, is to put it on the screen so they can read along when I'm reading them the instructions. MR. CAREY: If we could request a printout for use during the closings. THE COURT: Okay. MR. CAREY: Thank you. THE COURT: What time are we starting? THE COURTROOM DEPUTY: :0. THE COURT: I'm not sure I can get it to you that fast, but we'll give it a shot. You know what the changes are. So we'll do what we can. We've got another matter coming up here at :, so we're tied up with that. MR. CAREY: What time do you think we'll get started with the closing, Your Honor? THE COURT: I hope at :0.

23 0 0 MR. CAREY: Okay. THE COURT: And it's : now. This swearing in was supposed to be at :. It's not going to last more than a few minutes. MR. CAREY: Thank you, Your Honor. THE COURT: Okay. So you're free to watch, but you're also free to kind of take advantage of the time to do whatever you want to do. (Jury present at : a.m.) THE COURT: Good morning, ladies and gentlemen. So have a seat, everyone. As I told you, this is an opportunity for both sides to make their closing arguments. Each side has the same amount of time. When the minutes is up, you'll hear a little tone, which is your reminder that your time is up. So with that, we'll hear first from plaintiff's argument. MR. CAREY: Do we get the input to the monitor? THE COURT: Do you want number? MR. CAREY: I'm going to reserve the unused portion of my time for rebuttal, please. THE COURT: Okay. I'll tell you how much time you have left. MR. CAREY: Thank you. Good morning, ladies and gentlemen of the jury. First of all, I want to thank you for your service on this

24 0 0 jury. I know it's inconvenient to be a juror. It's disruptive to your daily lives. But we have juries in this country because it's very important. It's one of the things that makes this country so great, actually. It's in our Constitution. And we have juries because we believe strongly, very strongly that the people in their hearts and minds can find the truth. The truth in this case is that Samsung has infringed Prisua's patent. Let's review the evidence. We spent a lot of time talking about the patent. Infringement is determined by the claims. We assert Claims,,, and in this case. These are the claim elements of Claim, and they're all incorporated into Claims,, and. So here's the evidence of infringement. The first element that is set forth in the claims in Claim is an image capture device capturing a user input video data stream. That's simply meant met by an S camera, which is an image capture device. It captures image. And the user input video data stream are these images down here. The Court construed user input video data stream, and its definition controls your assessment of infringement in this case. And it means and only means a sequence of image frames -- well, let me read it to you. I'm sorry for that delay. I didn't have that in

25 0 0 the slides. But here we go. Yeah, that was it. Put it back up. User input video data stream. This is the definition from the Court. A sequence of image claims digitally recorded by a user separate from the original video data stream. So you need to -- all you need to do to is figure out whether this is present is compare what we've asserted to be the user input stream and ask yourselves: Is it this? Is it a sequence of image frames? Is it digitally recorded by a user separate from the original stream? All right. Let's go back. Go back to the previous slide. Okay. This is a sequence of image frames. It's a sequence and they're image frames. No dispute that these are image frames. And they were digitally recorded. That's how they got in the camera. And they were recorded by the user. And they're separate from the original stream, which is what I'm going to get to next. The next claim element is an image display device displaying the original video data stream. Here's the claim construction right here. I should have noticed that.

26 0 0 Original video data stream means a digitally recorded sequence of image frames that is to be modified. That's the Court's definition. That's the definition you must apply to assess infringement. That definition and nothing more. We look to whether what we've asserted to be, this, and ask yourselves, is it that? Well, we said the original video data stream are the five captured burst images that are captured by the camera in Best Face mode. Here's a depiction of an example. One, two, three, four, five. It's digitally recorded. We know that because the camera brings it in. It's a sequence of image frames. One, two, three, four, five right in a row. It takes one right after the other. It's no sequence that these are image frames. That's not in dispute these are image frames. And the last part that is to be modified. That's going to get to the substitution step. The purpose of Best Face, obviously, is to have you have one picture, and then you've got another, and you want to take an image from the second and put it in the first. So the first, the original, is the one you want to change. And this is the one you want to change. And the

27 0 0 user stream is the one that gives you the thing to change it with. So these are satisfied. Let's get back to this displaying issue. This has come up quite a bit. So this -- these five captured burst images as the original video data stream need to be -- the image display device has to display them in order to satisfy the element. We've shown that this is done actually in two different ways. The first way is when you are in Best Face mode and you capture the images, the device displays the original stream that you're capturing while you're capturing it. So these five -- the images that constitute these five things here, you see them on the camera. They're being shown to you as you push the button and you can -- and you see the images being captured. You can actually look at it while it's happening. And if people are moving around while you're taking the capture, you'll see them moving around on the screen. We created a video to show you that. Since we've shown it so many times, I'm not going to show it to you again, but it clearly demonstrated that while the capture was being done, you could see what was going on at the time. So the image display device is the touch screen on

28 0 0 the camera, and it's showing you the images that are being captured in that burst sequence. You can see it right there. So that's one way that the image display device displays the original stream. The other way that we've shown is you can see -- you can see -- you can also see these five captured burst images when you're -- after the acquisition is totally done, you can see them. Mr. Overby and Dr. Prieto demonstrated this to you. You can -- if you take the Best Face -- Mr. Overby did it a couple of different ways, for example. He took Best Face of himself, and every time he clicked on each face of him, you could see all five pictures. And you could tell, because while he was taking the Best Face capture of himself, he moved his finger and you saw each one of those five images of him with his finger in a different position. So that was being displayed by the touch screen. So the image display device, which is the touch screen that you're looking at, shows you the original screen two ways: When you're capturing it and after the capture. And both instances, by the way, you're dealing with digitally recorded sequences. All right. Obviously, after the capture, it's been digitally recorded. It's also been digitally recorded during the capture because it's showing up on the phone. The phone is not a window. You're not looking

29 0 0 through the phone to the people in the -- that you're taking a picture of. Their image has been captured by the phone, and it's digitally recorded in memory. That's how it ends up -- that's how you end up seeing it on the screen. So if it wasn't digitally recorded, you couldn't see it while it was happening. So you've got this being satisfied in two different capabilities of the accused devices. All right. So here, this is a very long claim element. It talks about a data entry device operably coupled with the image capture device and the image display device operated by the user to select a pixel in the frame of the user input video -- that's the one you like and you want to replace something with -- to use as the second image and further operated by the user to select at least one pixel to use as the first image, which is the one you want to modify. If you don't like it, you want to get rid of that one. So the data entry device is the touch screen. The touch screen serves as a display device. That's why it's called touch screen. You can touch it, so it's data entry, and it's a screen so it also shows you things. And you'll be instructed by the Court on the law, and he will -- his instructions will make clear to you that one component can satisfy more than one claim element. So

30 0 0 0 under the law, that's no issue with infringement. The point is that these things are done in the device, and they are. So the touch screen is your data entry device where you -- you touch and you touch down here. Look at that hand. So you're selecting from the user screen. The second image you want to use as the replacement, and then you select the original screen, the one you want to modify. So we all know that happens? Then there's a limitation here. It's a limitation. It requires the data entry device to be a particular kind of device, okay? It's got to be a keyboard, a display, a wireless communication, capability device, or an external memory device. So the data entry device has to be one of the devices in that group in order to satisfy the limitation. Here, it's satisfied because we're talking about a touch screen display and there you go. It's a display. That's -- the data entry device is a display. And there was testimony that that -- Dr. Prieto talked about how that was the -- was the component that met that. And there was no contrary evidence or dispute on that. Okay. So I'm going to get to the rest of the claim

31 0 0 momentarily, but I want to stop here for a second because I've already talked about two of the big issues in the case: Original stream and the user video data stream. Okay. So what is their defense to all of this? I mentioned in the opening statement that their defense to all of this was going to be ignoring Judge Moore's claim definitions. And that's exactly what their defense has proven to be. Dr. Delp was their expert to dispute the infringement. And when I asked him whether or not he used the Court's definition of original data stream anywhere in his presentation of the discussion of his opinion on non-infringement, he admitted, no, he did not, ignoring the Court's claim construction. Again, the Court's definition, you don't set it forth anywhere in your entire non-infringement presentation? Not in there. So the reason for that is when you take the Court's definition of these terms, they don't have an argument. They don't have an argument. They can't say that the things we've pointed to are not digitally recorded sequences of image frames. So they've come up with a theory. They're trying to talk about something totally that's not part of the Court's claim construction.

32 By the way, I wanted to -- I'll get to that in a second. 0 0 Okay. They made a big deal about what's a video. We were talking -- I talked about this with Dr. Delp. This is Figure in the patent, and this is referred to in the patent as a video image. You may remember the discussion of that. The description in the specification, this is Figure, and there's an image up here, a single still image and another single still image. And you're substituting a face from one single image to another single image. The patent calls this a video image. That's how it's used in the patent. Dr. Delp had to admit that that was a video image, which he did. He admits, which is obviously true, we all know this, you can't have a video without images. Images start out as a single image. You put them together and then you've got a sequence, or, rather, a video starts out as an image. You put them together and you've got a sequence. So here, I asked Dr. Delp, I said, the Court said that a video data stream is a digitally recorded sequence of image frames that's to be modified. And he said, That's what it says. That's the claim term. Then I asked him, Are you saying that the Court left something out, that it has to be playing in order for it

33 0 0 to be a video data stream? And he agrees. No, I'm not saying that. It only has to be a digitally recorded sequence -- I asked him, It only has to be a digitally recorded sequence of image frames? That's all it's got to be according to this definition? Yes. I asked Dr. Delp this: Video data streams consist of single still images, correct? Yes. So all this nonsense that we have spent three and a half days hearing about, oh, this is a video patent, but Best Face is a photo application, they both deal with images. They both deal with still images because video consists of still images, just like he admitted. This is what we call a red herring in the law. Dr. Delp's presentation, his non-infringement argument, every slide, he kept saying, it's not a video, it's not a video, it's not a video, it's not a video. All Mr. Edlin wants to talk about, it's not a video. It's not a video. They never say it's not a video data stream. The claim term in the patent is "video data stream," not, quote, unquote, video. Dr. Delp finally had to admit this. The patent doesn't say in any of the claims, quote, a video. In every

34 0 0 instance the word "video" is mentioned, it's not a, quote, end quote, video. It's video data stream? Yes. We can get to that later. Ladies and gentlemen of the jury, their defense to infringement, it's not even a legitimate defense. It's totally bogus. They know they have no way of denying that the accused devices meet the Court's definition of the video data stream claim terms. So they've come in here and they've tried to dupe you, thinking -- into thinking that this case is about something that it's not about. What the case is about, it's about the Court's definitions of the terms. They have no defense to the Court's definitions or the fact that they clearly meet the Court's definitions, and they know it. So they've come in here and said, We're not a video, but the claims don't talk about just a video or, quote, a video. They talk about video data streams, original and user video data streams, which are merely a sequence of frames, a sequence of image frames. And we've got that. We've got that. It's clear as day. If they had come in here and said, oh, no, no, we don't even have a sequence of image frames, that might be a

35 0 0 legitimate argument, but they didn't do that. They know they can't argue that. So they shifted into this argument that's not an actual argument that applies to the Court's definitions. So just as I said in the opening statement, their defense to the case is to ignore His Honor's claim constructions. Your duty is to apply His Honor's claim constructions. Okay. Let's go back to Claim. All right. So we talked about image capture, data entry. And then we get to digital processing unit. And here, this is the processing capability of the devices. And here is where software resides, and it executes different operations and functions. So this is where we got into, well, what does the Best Face software do? Because it performs certain functions in there. That's that software written by the company they outsource the development of it to, ArcSoft. All right. So for our proof on these things -- so what you've got going on here in the digital processing unit elements, you've got these functions. You've got to identify a pixel in the frame. You've got to extract it. You've got to store it. You've got to receive it. You've got to extract the image. You've got to spatially match. Then you've got to do the substitution. All of those things are software routines executed by the ArcSoft Best Face software.

36 0 0 Mr. Walter Overby, our software expert, walked you through all of those functions of the ArcSoft software. And their expert, Dr. Delp, didn't say a thing about any of it. There's no dispute, there's no evidence that contradicts what Mr. Overby said about how the software operates. Their whole defense is, well, it's not a video, a defense which doesn't even apply to the case. So all of these things here, all of these claim elements on the record before you, on the evidence that has been submitted by Mr. Overby, totally undisputed. All right. So we're almost done with Claim. We've got one thing left, which is this part -- the end part of this last element. After the substitution -- I apologize. It's not all that legible, but you will have a nice copy of the patent in the jury room. Hopefully, you can read this. So you do the substitution, and then afterwards what you have to end up with is a displayable edited video data stream. Okay. So let's talk about that, the last element in Claim. And this is going to be the last element you've got to worry about because the additional elements that are added on in Claims, and, they never disputed any of that stuff. Okay? Now, this is displayable edited video data stream. Here again, their argument is bogus. They keep saying Best

37 0 0 Face only creates a final edited image and that's it. Done. Get out of Dodge. That's what they want to you think. But that's not the end of the story. Best Face tells you, as a user, to save the image to the gallery. As their own expert, Dr. Delp, even admitted, when I asked him about Samsung's own instructions on their website about how to use Best Face, Samsung tells its users when telling people how to use Best Face, once the Best Face entered an image it's created, save it to the gallery where you've got other images. And when you add the edited image from Best Face to the other images that are in your gallery, you have a sequence of images, and they're displayable to you. You can see them. You can scroll through them. You can look at them in a slideshow. You can do all sorts of things with them. If the people in the images are moving when their picture was taken, you'll see that, too. So when they tell you that the end result of Best Face is just one edited image, that's untrue because Best Face presents the save button. When you get the image, Best Face itself puts up the save button, telling you to save it to the gallery. But more than that, the end result -- so-called end result of Best Face is not the end of the story. Because it's the device. It's the phone that infringes.

38 0 0 Look at the claim. It's an interactive media apparatus, and then it sets forth the components, and these components are what matter. These components have to have all these things in them. But it's -- it's the devices that infringe, right, the devices that infringe. We're not suing over just the Best Face software. We're not saying Best Face has the image capture device or Best Face has the data entry device. Samsung makes all these other components. The whole phone is the infringement, not just that little piece of Best Face software. So they want you to just say, oh, well, Best Face stops with an image, and we're done. No, no, no. What else does the device do? Okay? That's the question. We're suing over the devices, the phones, with the software. So infringement is about whether the devices have all of these elements of the claim, not whether Best Face software has all of these elements. Again, they're just trying to divert your attention from the actual issues in the case and to make you think this case is about what it's not about. So the phone has memory. The phone has all these

39 0 0 other components. The memory holds the gallery that has all your other photos and images in there. And Best Face provides the functionality to save your edited image into that gallery. And so now the phone, which is the accused device, has the gallery containing your edited Best Face image and all of your other images, and it is capable of displaying all of those images in a sequence. And something that is capable of displaying images in a sequence is the displayable edited video stream. It's edited stream because it includes your edited image. Dr. Delp even conceded this. Here. Here's my questioning of Dr. Delp on "displaying" and "displayable." I asked him: Displaying and displayable aren't the same thing? And he agreed. I don't think so. What's the difference? Well, displayable means displaying -- I'm sorry. He says displayable, capable of being displayed. Displaying, actually displayed. So on this final term of the claim element, the "displayable," it doesn't actually have to be displayed. It just has to be capable of being displayed. Okay? So all this argument about, oh, well, they're talking about things that Best Face doesn't have in it and you've got to do these other things, well, the phone -- the

40 0 0 0 whole things are capable of being done, and all you've really got to do is scroll through your gallery. And the phone gives you that functionality. It's inherent in the phone. So I asked him, Well, if it's capable of being displayed, if something is capable of being displayed and it has the capability, you just look to see whether it has that capability. You don't further consider whether it does the capability. If it has the capability, that term is satisfied, right? Yes. Then I went on. When you create your resulting substituted image in Best Face, the device gives you a save option on the screen, right? That's the icon in the upper right. Yes. So it suggests to the user to save the image? Yes. It tells you save -- it presents the save button once you generate the image? Yes. And if you press the button, where does the image go? It goes to the gallery. It goes to the gallery? Yes.

41 What's in most people's galleries? Do you have an idea? 0 0 Other images, of course. Okay. Here, when I showed him those instructions of what Samsung tells you how to use Best Face, I say, Samsung is telling its users how to use Best Face. They say when you're satisfied with the photo, touch save to combine the faces into a photo and then save the photo to the gallery. Yeah, that's what it says. So that's what users are understood to do with the resulting image, save it to the gallery? Yep. And the gallery is full of other images? Yes. By the way, this is interesting. Even though Dr. Delp concedes that the gallery is full of other images, every single time they demonstrated that Best Face phone to you, they wiped the gallery clean of every single image. They put nothing in there. And if there were images in there, they took them out. They don't want you to think about the other images in the gallery. So once the resulting image is saved to the gallery and stored with other images, there's lots of images in there, including the edited image?

42 0 0 He said yes. Of course, he did. How could he not? If you view those in slideshow mode, they'll be presented to you in a sequence, won't they? Yep, probably. Okay. He said probably. That's good enough. And each of those images are an image frame, correct? Each of those images in the gallery, including the edited Best Face image, is an image frame? Yes. Okay. So remember. What do we need for a video data stream? We need image frames in a sequence, a sequence of image frames. Let's see. We've got our sequence, and we've got our image frames. So those are all the elements of the claims. They're all there. Ladies and gentlemen, under the law, which His Honor told you about in the beginning of the case and he'll tell you more about after the closing arguments, our burden of proof on infringement is merely a preponderance of the evidence. It's the legal standard we have to satisfy to convince you of an infringement, and you're supposed to evaluate our evidence by this standard. Preponderance of the evidence means we just have to tip the scale a little bit. That's all we have to do.

43 0 0 If you say it's Prisua, Samsung, infringement is the result of that assessment. That's all we've got to show. All we've got to do is tip the scales just a little bit. That's what preponderance of the evidence means. I respectfully submit that we've not only met our burden, but way more. Samsung infringes. Let's talk about validity. On the issue of infringement, we have the lower burden of preponderance of the evidence. But on invalidity, that's their burden. We don't have to do anything on that, by the way. The law is that patents -- issued patents are presumed valid. We've got an issued patent, which is presumed to be valid. So we don't even have to present any evidence to you to defend that the patent office was right in granting the patent. They have the total burden to prove invalidity. And not only is it their burden and not ours, but their burden of proof is way higher than our burden is on infringement. Where we have the preponderance of the evidence burden on infringement, their burden on invalidity is called the clear and convincing evidence standard. All right? So where you've got -- the instructions from the Court will explain this in a little more detail. But where you've got preponderance of the evidence, you know, maybe like right

44 0 0 here -- and you're familiar with criminal law, you know, people face going to prison. That's called -- that's even a different standard. It doesn't apply to this case. Just criminal cases. That's called beyond a reasonable doubt. You've probably heard that a lot in television programs and stuff about crime dramas and things. Beyond a reasonable doubt is way up here, okay? Clear and convincing evidence is between the two. Preponderance, beyond a reasonable doubt, clear and convincing. That's their heavy burden. They haven't even come close to meeting that burden on invalidity. For example, Dr. Delp, when I talked to him about his invalidity opinions, there's an element of the claims of the patent -- let's go back. Let me show you this one. The spatially matching -- oops. Wrong claim. Here we go. The spatially matching element is very specific in the patent. It's spatially matching an area of the second image to an area of the first image, wherein -- wherein the spatial matching, the areas results in equal spatial lengths and widths between two spatially matched areas. So it's a very specific requirement for spatial matching that the claim requires. And when they talked about invalidity -- when Dr.

45 0 0 Delp presented his thoughts on that to you with these prior art references, his presentation didn't even address this limitation of the claims. So if they want to invalidate the patent, they've got to show that the prior art does every single one of the claim elements, just like we, on infringement, have to show that their product satisfies all the claim elements, okay, which we've done, as I just demonstrated. On invalidity, if they want to say the patent is invalid, they've got to point to a prior art patent and they've got to say it shows every single one of those things in the patent, kind of the reverse of infringement. So when he made his presentation and offered his evidence to you about invalidity, he skipped over this limitation. They have the burden by clear and convincing evidence to establish invalidity, and he didn't even talk about it. Here he is. You didn't say anything about that when you spoke about this limitation, this special requirement for spatial matching in the patent. I did not. Oops. The other references. Okay. Sitrick. They have Sitrick that they're citing against us. They have Senftner that they're citing against us. And Photoshop.

46 0 0 They didn't do the spatial matching special requirement on any of them. All right. That question I asked him was about all three. So they don't have evidence on that. He didn't present evidence on that. Senftner -- or Sitrick is deficient for multiple other reasons. Dr. Prieto got on the stand in rebuttal and walked you through how Sitrick is missing four other claim limitations in her patent. So Sitrick doesn't come close to doing exactly what she does. Senftner is missing five of those claim elements in her patent, at least. Senftner doesn't come close to invalidating her patent. And Photoshop, we spent some time talking about this one. Dr. Negahdaripour -- or Professor Negahdaripour explained how these things were all clearly not -- how Photoshop was clearly not doing the special requirement of spatial matching. Look, this is not -- this is not an equal length and width match. You can just tell by looking at that. Anybody can see that. I asked Dr. Delp about the Photoshop thing. Remember, the Photoshop thing was something that they described as world's premiere program. Everybody knows about this thing.