Free Notice (Other) - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 1 of 23

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 2 of 23

Hearing Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PHILLIPS, L.G., LCD CO., LTD, Plaintiffs,
) )

I
) )

C.A. No. 04-343 (JJF)

v.

1
TATUNG CO., TATUNG COMPANY OF AMERICA, INC., and VIEWSONIC CORPORATION, Defendants.
) ) ) ) )

Hearing of above matter taken pursuant to notice before Renee A. Meyers, Registered Professional Reporter and Notary Public, in the law offices of BLANK ROME, LLP, 1201 North Market Street, Wilmington, Delaware, on Thursday, December 28, 2006, beginning at approximately 11:30 p.m., there being present: BEFORE: VINCENT J. POPPITI, SPECIAL MASTER

APPEARANCES: THE BAYARD FIRM RICHARD D. KIRK, ESQ. 222 Delaware Avenue, Suite 900 Wilmington, Delaware 19899 for Plaintiffs

CORBETT & WILCOX Registered Professional Reporters 230 North Market Street Wilmington, DE 19899 (302) 571-0510 www.corbettreporting.com Corbett & Wilcox is not affiliated with Wilcox & Fetzer, Court Reporters

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 3 of 23

Hearing

2 (Pages 2 to 5 )
Page 2
APPEARANCES (Continued): MCKENNA, LONG & ALDRIDGE, LLP CASS W. CHRISTENSON, ESQ. REL S. AMBROZY, ESQ. JESSE KOKRDA, ESQ. CORMAC CONNOR, ESQ. 1900 K Street, N.W. Washington, D.C. 20006 for Plaintiffs RICHARDS LAYTON & FINGER FREDERICK L. COTTRELL, 111 One Rodney Square Wilinington, Delaware 19801 for Defendant Tatung Co. GREENBERG TRAURIG LLP FRANK MERIDETH, ESQ. 2450 Colorado Avenue, Suite 400E Santa Monica, California 90404 for Defendant Tatung Colnpany of America, Inc. CONNOLLY BOVE LODGE & HUT2 LLP JEFFREY B. BOVE, ESQ. JACQUELINE MASON, ESQ. 1007 Nortll Orange Street Wilmington, Delaware 19899 for Defendant Viewsonic Corporation BINGHAM McCUTCHEN LLP SCOTT R. MILLER, ESQ. 355 Soutli Grand Avenue Los Angeles, California 90071-3 106 for Defendant Vicwsonic Corporation

/

Page 4
approximately two hours so that we can take a break and make sure that anyone who needs to refresh themselves c do that. And that break, I would expect a half hour, unless someone suggests that we are going to need more time than a half hour. So I would be looking to break around 1:30. Does anyone have any problem with that? MR. BOVE: Jeff Bove for Viewsonic. That's fine, your Honor. MR. COTTRELL: Fred Cottrell. I have another call at 2:00, which won't go very long, so I can just jump back in, hopefully, only a few minutes after our break. SPECIAL MASTER POPPITI: Thank you. That's fine. MR. BOVE: Jeff Bove. Also, since I have Jacqueline Mason with me, with the Court's permission, once we got started, I was going to request your Honor's permission to be excused. I am next door and am available, but I will not be arguing today. Scott Miller will be. SPECIAL MASTER POPPITI: I have no problem with that at all. MR. BOVE: Your Honor, one --

Page 3
MR. BOVE: Your Honor, this is Jeff Bove from Connolly Bove representing Viewsonic, along with Jacqueline Mason and my partner Scott Miller from Los Angeles. MR. COTTRELL: And, your Honor, Fred Cottrell at Richards Layton in Wilmington for Tatung, and on the phone from Greenberg Traurig, Frank Merideth. SPECIAL MASTER POPPITI: Next, please. MR. KIRK: Dick Kirk from The Bayard Firm here in Wilmington for the plaintiff LG Phillips LCD Company, Ltd., and with me on the line from Washington, and perhaps elsewhere, from McKenna Long & Aldridge a Cass Christenson, Rel, R-e-I, Ambrozy, Derek Auito, and Jesse Kokrda, K-o-k-r-d-a, and Cornlac Connor, C-o-r-m-a-c. SPECIAL MASTER POPPITI: Thank you, Mr. Kirk. Then thank you, counsel, and good morning as we come up shortly to noon. Let's do some houselceeping first, if you will, with respect to today's proceeding. I would propose that, for purposes of making sense of what I expect is going to be a fairly healthy workday with you all, that we go for a period of

Page 5
SPECIAL MASTER POPPITI: Please identif yourselves each time. MR. BOVE: Jeff Bove again. SPECIAL MASTER POPPITI: Thank you, Mr. Bove. MR. BOVE: One other point of housekeeping, and I am sure everyone will want to weigt in on this, particularly your Honor, which is the manner in which the Court would propose to tackle these motion; today. Obviously, from Viewsonic's standpoint, we have been thinking about it, and would toss the proposal out for your Honor's consideration, obviously for comment by all on the phone, which is to go, frankly, motion by motion, request by request. As I understand, the Court does have rather extensive written submissions of the parties, and we were thinking, again, obviously, subject to your Honor's views, that perhaps some reasonable closure on oral argument, per discovery requests, might be appropriate in order to give hope of completing the task today. I simply offer that as a suggestion, and, obviously, defer completely to your Honor's view.

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 4 of 23

Hearing
26 (Pages 98 to 101)
Mr. Christenson. MR. CHRISTENSON: Your Honor, it's correct to say that they have not alleged it, I don't believe, as an affirmative defense, and the time to -things have expired under the scheduling order.
1

have been pled. MR. MILLER: Thank you, Your Honor. Let me just get some papers out of my way. Thank you. Next. I promised the court reporter we'd be out of here dealt with that last issue. MR. CHRISTENSON: I am glad we are MR. MILLER: That's a joke, too, Your SPECIAL MASTER POPPITI: That's a joke MR. MILLER: Your Honor, I think -SPECIAL MASTER POPPITI: Yes, MR. MILLER: The next chronological SPECIAL MASTER POPPITI: That is

3

4 5

4 5

7

10
11

discovery to the extent this was an issue in the case, but to the extent it's not an issue in the case, then I

15 17
19

deposition schedule, etcetera, we would, obviously, where we are in the case. no question that I have the authority to draw the forward. And given the state of this record, without
21

21

Compel LG, Re: Components, etcetera. It's dated 1013, MR. MILLER: Let me -- we have been

2

3 5

I am looking at the scheduling order, Mr. Christenson. Let me -- and I know it's been modified. Let me just look here.
respect to amending the pleadings?

1

2

and I will do the same here to see if we can at least focus the issues. These first set of requests deal with Viewsonic seeks to discover vis-a-vis LPL. SPECIAL MASTER POPPITI: Mr. Miller, myself of something that I made a note on. Just one of putting you on hold again. I have got to find the document. I made the note but I can't find the document. (Off the record.) SPECIAL MASTER POPPITI: Counsel, I am not having the kind of success that I should have, but I

5

8

in the -- the date is in the original --

8 10

MR. CHRISTENSON: Yes, sir.
13 15 Your Hoi~or. there. I see it. Thank you, Mr. Miller.

11

15

18

2006." We are coming up to an anniversary. I mean, I -- this matter is not ripe for the issue, and if it needs to be raised with Judge
21

21

looking at the wrong document. Hold one sec. Actual1

www.corbettreporting.com

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 5 of 23

Hearing 27 (Pages 102 to 105)
Page 102
LG Phillips' response, page 10, footnote eight. MR. MILLER: Yes, Your Honor. SPECIAL MASTER POPPITI: I mean, does that not cover the ball park? MR. CHRISTENSON: Would you like to hear first from Mr. Miller? SPECIAL MASTER POPPITI: Sure. MR. MILLER: Your Honor, when you say "LPL's response," you are talking about their opposition to the motion? SPECIAL MASTER POPPITI: Yeah. I am looking at their opposition to the motion and what -what I found interesting was the footnote seemed to suggest to me that LPL -- I will read it, "LPL has already produced documents responsive to categories one and two, whicl~ include LPL invention disclosure document and internal files pertaining to the patents in suit. LPL is willing to produce documents concerning the remaining three categories," and I see the qualifier, "to the extent responsive non-privileged documents exist." And my note was: Doesn't that say that -- is it moot? Do I need to hear what the agreement is? MR. MILLER: If you are referring to an agreement to limit the response, there was no agreement.

Page 104

l1
1
t

from LPL that relates to the development and investigation of these mounting technologies and the whether they ; limitations on these mounting tecl~nologies, be front mounted or side mounted technologies, because, obviously, they are going to be applicable to the limitations on rear mounting, and they will go directly to the issues, for example, if the patent is construed in a manner that you can put a fastening element anywhere o.! i the back, is that claim enabled because if there are 1 limitations in terms of -- that have to be made to the LCD panel in order to mount it that way, they certainly i 1 really not disclosed in the patent. { It will go to the issues of inventorship, the side mount patents, where the side mounting, or the technology that was developed both by IBM and also by LPL in conjunction with dec. and was th subject of a lawsuit here in California, the Court here recently determined that LPL did not have standing to assert those patents because it wasn't the proper owner of those patents, having not been the proper inventor of those patents. SPECIAL MASTER POPPITI: Mr. Miller, I . understand your argument, and, even before hearing from Mr. Christenson, understand the strength of it.
4

Page 103
1 We discussed, in the meet and confer, that if they would 2 produce these kinds of materials, we would look at them 3 and then determine what else we needed. 4 SPECIAL MASTER POPPITI: Okay. 5 MR. MILLER: Those materials were not 6 produced, and, just to be clear, the materials that we 7 are seeking are materials that relate to the, what they 8 already admit is prior art. As I was starting to say 9 before, this case, as we know, deals with what's called 10 rear mounting -11 SPECIAL MASTER POPPITI: Right. 12 MR. MILLER: -- mounting these devices 13 from the back. There are two admitted types of prior 14 art, one is side mounting and one is front mounting. 15 We are confident that, contrary to what 16 LPL tells Judge Farnan its claim construction brief, that 17 it's not possible to merely slap a threaded insert on the back of one of these LCD devices anywhere, and that LPL 18 knows, from its experience in developing side mounting 19 and front mounting panels, and has warned its customers 20 in conjunction with those panels to only use the specific 21 22 mounting shuctures that are provided because these 23 devices are fragile. 24 So what we are seeking is infonnation - - - .. . - "
" "

Page 105
I guess my question is the recitation of what is stated on page 10 of their response, are you suggesting it's not accurate? For example, I am looking at page 10, in the body of the submittal, and it says, at the -- in the first full sentence, "Viewsonic's counsel identified five such categories." Then it threw me into the footnote which recited five categories, I expect, and there is a quote, so I expect that they are the categories that you may have identified, and then I understood LPL to say that they were going to produce. MR. MILLER: And to the extent that the argument by LPL is that that was an agreement to take those documents and nothing further, that was not an agreement ever reached. SPECIAL MASTER POPPITI: Okay. MR. MILLER: Part of the meet and confer, we indicated that if they would produce documa -- if they could produce documents in stages and that these would be the things that we would be the most interested in, and if they would produce those first, we are happy to get those and then discuss with them what other documents need to be produced. SPECIAL MASTER POPPITI: Have you go1 that production yet? - . . . *

1'

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 6 of 23

Hearing
2 8 (Pages 106 to 109)
Page 1061
MR. MILLER: No. SPECIAL MASTER POPPITI: Would it be -and I ask this of both counsel, not that I want to avoid, because I won't avoid making a decision, it is, however, more important for me if I understand that there is an agreement, and that's rather obvious, if there is an agreement, you do it right away, you don't have to wait for a written document from me, you then don't have to wait for some judgment on the part of Judge Farnan after one or the both of you file up exceptions. So, my question is this: If you agree that the five categories are categories that should be produced right away, whatever that means, and if there is agreement that Viewsonic has the opportunity to evaluate that production, then go back to the meet and confer table for purposes of saying, We need three more categories or we need so many more documents in each of the categories, isn't that the better way to approach this? MR. MILLER: Your Honor, I guess, conceptually, I would say yes. One of the problems is the recitation here of this interchange is not accurate. It was not ever intended that categories one and two would relate to the invention disclosure documents or 24
"

Page 108
And, so, we need to be able to get complete discovery from them with regard to these mounting technologies that they acknowledge are out the1 and that they have long since used, some of which they claim to have developed themselves, so that we can really put these patents and the supposed invention of these patents into the proper perspective. And, so, we can't -- you know, that's where I am today. SPECIAL MASTER POPPITI: I mean, if you can't forge an agreement that makes sense, then I am certainly not going to waste everyone's time seeing if that can occur. MR. CHRISTENSON: Your Honor, I feel that your suggestion would be very productive because it would allow us to focus on a fixed target and understand and deal with things in a specific and concrete way. And I -- I certainly dispute Mr. Miller's statements that we haven't produced documents. We have produced, for example, all of LPL's documents concerning the patents in suit and conceming the inventions that are the subject of this case that relate to rear mounting of products. , We have produced internal patent files i
"""

24

- "....

-..u..-..-..-.-p

Page 107
technical development documents of the patents in suit but were directed to what the requester directed to, which is side mounting and/or front mounting technologi that they have employed. They have not produced any of that. In fact, they have taken the position that side mounting and front mounting either require claim construction or are not relevant to this case. And it's notable, in my mind, that those technologies are the subject of the discovery in the California case that now, you know, as of ten days ago, LPL has decided they want to bring over wholesale after stiff arming us for months about those materials. So they haven't even produced the documents under categories one and two for the related technologies, and their footnote indicates they are producing it only for the patents in suit. There is another sort of catch 22 here that you need to understand that LPL is trying to set up. They have taken the position that they don't produce products that employ the technology of the patents in suit, and, yet, they have advised Viewsonic that Viewsonic products that use LPL modules likely infringe the patents in suit. .- " "
" "

I
I

,

Page 109
1

./

froin LPL. We have produced documents from our own patentl i 1 prosecution files. We have produced third-party ! documents, or documents related to third-party products. We have produced the invention disclosure fonns, for example. We have done a very comprehensive, and many months ago, of production. I To the extent they are seelcing now to i bring documents and discovery in from the side mount case 1 i and issues, which are a different set of patents in the I California case, I don't understand what it is that they i are seeking. j1 They haven't explained to us why we should be bringing discovery or producing docnlnents in this case that relate to discovery in the -- in different I patents, side mount patents in the California case. I So, it's difficult to respond to that I specifically because it's not framed specifically, but, i ! generally, there is just no basis for them to be trying to go outside the scope of this invention and raise issues concerning other inventions. i i The question here is: What is our 1 invention and do the products that are accused of 1 j infringing infringe? Do they copy our invention? And I I they are seeking wholesale discovery on all of LPL's

1

1

I

"

.-

"

-

2

..-.

I

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 7 of 23

Hearing

2 9 ( P a g e s 1 1 0 t o 113)
Page 1 1 0 products which are -- which LPL, as Mr. Miller said, doe: not assemble visual display products that use LPL's products. LPL makes a component, a module, that goes into the -SPECIAL MASTER POPPITI: I understand that. Maybe what I -- I thought I understood Mr. Miller to say that there is -- there will be a lot of discussion about prior art. That's the first thing I understood him to say; correct, Mr. Miller? MR. MILLER: Yes, Your Honor. SPECIAL MASTER POPPITI: And I also understood him to say that they expect that, in prior art that deals with other mounting methodologies, there is language that suggests -- in the nature of warnings; correct, Mr. Miller? MR. MILLER: Yes, Your Honor. SPECIAL MASTER POPPITI: And would yo remind me again precisely what you said about those warnings? MR. MILLER: That they restrict the mounting of these products solely to the mounting holes and it's not possible to merely just put a mounting structure anywhere in conjunction with this product that they sell. Page 111 SPECIAL MASTER POPPITI: It seems to me -MR. MILLER: And they take the position that the patents in suit enable a mounting structure anywhere on the back surface, and, yet, there is no discussion about the technical aspects or requirements that that necessitates. One of the issues, as Mr. Christenson's comments illuminate to me, at least, is that it's difficult to reach an agreement in a patent case when your opponent says, I will tell you about the patents but I won't tell you anything we know about the prior art, and that's essentially what he is telling us. SPECIAL MASTER POPPITI: That's not going to happen here. I am going to require, because yo^ can't forge an agreement, that the -- that the request -that there be production with respect to the request, and what I -- understanding that this represents an order as opposed to an agreement which will be ordered. It will be in the nature of a finding and recommendation, which will have to make at -- in due course, and what I would like from you is a suggestion as to when that production occurs, understanding that it's either going to occur within so many days of your having the right to take . - ... . . Page 1 1 2 ; exception and you don't, or so many days, at least a proposal to Judge Farnan, so many days after he has the opportunity to review whatever I do if asked to. And you all know what that means. That just pushes it out there in terms of -- not in terms of when the Court acts. It just pushes it out there because I have got to do some work on this end. You will have the opportunity to do something with my work at your er And then Judge Farnan ultimately will have it on his desk, and we all know that that process, I don't believe we shortened the time frame in this case, have we, counsel? MR. MILLER: Not as to these motions, we didn't. SPECIAL MASTER POPPITI: Not as to thes motions. So we are out there over a month. MR. MILLER: I would hope that we would do it, given that inherent time frame, that we could do it within a week of either of those events transpiring. SPECIAL MASTER POPPITI: Is that acceptable, one week, five business days? MR. CHRISTENSON: Could we make it two weeks? MR. MILLER: I wouldn't object to two Page 113 weeks if they don't appeal, but one week if they do, I guess. SPECIAL MASTER POPPITI: Is that acceptable? Because you will have the time. MR. CHRISTENSON: Right. I think we probably could live with that. SPECIAL MASTER POPPITI: Okay. Then i will be two weeks if there is no appeal and one week after Judge Farnan rules, and, of course, he maintains the ultimate authority to adjust that one week. But I will indicate that it will be one week by agreement, so it's likely that he would -- I would anticipate he would accept that. MR. MILLER: The next set of requests deal with information relating to flat panel display devices, not directed specifically to mounting structures but to LCD products or plasma products, for example. Again, these -- these patents in suit discuss how you mount a conventional component inside a housing, and what we have sought are the documents ar information relating to separate components of a flat panel display device. The patents describe how certain of the components that are used in the invention, the frames,

."

"

,*

<

2..

a

a

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 8 of 23

Hearing 3 0 (Pages 1 1 4 to 1 1 7 )
Page 114
for example, assemble these components, and, so, we are seeking some information about conventional products an what would be known to one of ordinary skill in the art at the time of this invention that relates to these devices that the invention supposedly applies to. The only response we have gotten back from LPL is that they will respond when we agree to narrow them, without any suggestion about why they are overbroad or how they should be narrowed. Again, we believe that this is clearly information that is relevant to a variety of issues in this case and that it should be produced forthwith. SPECIAL MASTER POPPITI: Why don't you articulate for the record the relevance with respect to the variety of issues? MR. MILLER: Well, the variety of issues would be, again, the issue of enablement, whether or not the patents sufficiently disclose how these components go together, or whether what one ordinarily skilled in the art would know, the nature of whether or not the difference between other prior art that we have located and the disclosure and the patents would be obvious to one skilled in the art based on how these components interact and what they do, the, you know, the relative
"

1

Page 116
1 2

b

11 12 13

17 18

22 23

"--"

MR. CHRISTENSON: For example, the issue of enablement is a question that can be resolved by looking at the patent and understanding whether the patent sufficiently discloses aspects of the invention. Whether the written description in the patent is sufficient is not something that's going to be informed by all the documents related to all the manufacturing that LPL has done, since 1997, of modules. And the claims at issue, Your Honor, don't refer to LCD modules. They refer to a certain type of mounting and assembly of a display device to a case, and that's not -- LPL doesn't have those documents because it doesn't do that. So, this is really -- these are kitchen sink requests that aren't going to get anybody anywhere with respect to the claims and defenses in this case. SPECIAL MASTER POPPITI: I understand your position with respect to enablement. Talk about the prior art. MR. CHRISTENSON: Again, Your Honor, th prior art issue is: Was this invention obvious or was it anticipated by -- it had already been invented; was it already out in the public realm? And there is nothing that's going to be learned from LPL's manufacturing yesterday and a year ago and for the past ten years of

Page 115
value of this invention, potentially, from the standpoint of a reasonable royalty and how easy it is to design around based on one of ordinary skill in the art of knowledge of these components and how they work togethe(. for mounting, which was, obviously, done prior to this invention, but how they work together for mounting in these kinds of products. So, those would be the three that I know, with a high degree of certainty, are applicable, and there may be others. SPECIAL MASTER POPPITI: Thank you. Mr. Christenson. MR. CHRISTENSON: Your Honor, the requests that they have propounded would call for LPL to produce all sorts of documents going back to 1997 to the present for every LCD module that LG Phillips has made and all the components that relate to every one of those modules. It's just a remarkably overbroad set of requests and it's not calculated within reason to lead to discovery of admissible evidence, and it's not -- it's just not relevant to the issues in the case, including the issues that Mr. Miller just discussed. SPECIAL MASTER POPPITI: Why isn't it relevant to the issues that he just discussed?

Page 117

/

1

4
5

6 7
8

all different sorts of modules that are later assembled by a different company that buys the modules into -- into finished devices. SPECIAL MASTER POPPITI: Who's to say that? How can I be assured that that isn't the case? I mean, it may be, and I will listen to your discussion of overbroad, I haven't seen anything that describes what that means, but how can I be, to the extent that there should be some degree of certainty here, how can I be certain, because that's what you are saying, that no information that is being requested would lead to the discovely of relevant evidence as it relates to prior art/obviousness? MR. CHRISTENSON: Your Honor, I understand your concern, and I -- the only way I can respond to that is to say if you -- what I have done is looked at the -- what documents have been requested, and the documents that they have requested don't -- are not -- are not focused on any of these issues that are being discussed, including the prior art issues, and maybe it would be helpful to look at some of these specific requests, but -- and I am happy to do that if that's -SPECIAL MASTER POPPITI: I think that's

I/
1
j

I 1 1

1

i
i

i

I
i I

1
I

I

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 9 of 23

Hearing
31 (Pages 118 to 121)
Page 118
MR. CHRISTENSON: All right. SPECIAL MASTER POPPITI: You know, Mr. Miller is saying -MR. MILLER: Your Honor, I think we start at 82 on these. SPECIAL MASTER POPPITI: Just give me a second. MR. CHRISTENSON: Your Honor, I believe that you could turn to Exhibit 4 to LPL's opposition, and that should set forth the requests and the responses. SPECIAL MASTER POPPITI: It does. And which one? 82? MR. MILLER: 82, that's where we start. SPECIAL MASTER POPPITI: Mr. Miller, it's your request, so have at it. MR. MILLER: And this seeks information that our bills and materials for an LCD module made by LPL from the date prior -- one year prior to the priority date to understand what these components are and how -whether or not they were -- what functions they You will see there is bill of materials requests for different components. SPECIAL MASTER POPPITI: I see MR. MILLER: So that we can ascertain,
"

Page 120 ;
MR. CHRISTENSON: 82 and 83 are bill of material requests. SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: May I respond? SPECIAL MASTER POPPITI: Yes. MR. CHRISTENSON: On No. 82, if we are talking prior art, the priority date in this case would be October 1998. So, you go -- that's the conception date. If you go back the year before that, it's October 1997. So, they would need to show that something happened to invalidate the patent, they would have to show something related to that time period of before October of 1997, and, yet, the unrestricted time period for the request is January 1, 1997, to the present. SPECIAL MASTER POPPITI: Mr. Miller. MR. MILLER: That's certainly a fundamental issue that we have that relates, I think, generally to these requests. SPECIAL MASTER POPPITI: Well, let's talk about the date, then. MR. MILLER: We picked January 1 because it was a date tl~at was, you know, several months prior to the one year prior to the foreign priority date because we are trying to ascertain what is the knowledge of one
" " "

18 19 20
21

22
23

24

Page 119
because the patent merely describes these components as part of a first embodiment of the invention, and what we need to do is to be able to, very clearly, understand and know, to be able to point out to the Court and the jury, what's the difference between the structure described in the first embodiment of the invention and what is truly the prior art? And, so, we felt these bill of materials was the least intrusive kind of thing we could ask for that would relate to these products as opposed to asking for evely document that shows every component of the module. SPECLAL MASTER POPPITI: Well, you are certainly not asking for evely document that shows every component of the module. You are asking for something more narrow than that. It's -- you made an effort to reshict the request and reduce the universe. Mr. Christenson. MR. MILLER: Then if you go down to, like, No. 84, for example, we ask for documents sufficient to identify -MR. CHRISTENSON: Are we going to go in order, or are some of these now off the table? SPECIAL MASTER POPPITI: No, they are not off the table.

Page 121
ordinary skilled in the art. And we are happy to agree ' to some reasonable cutoff date. If -- if LPL believes that we should have a cutoff date, you know, of the patent issuance date, or we can pick some other date that would make sense, you know, we are happy to do that. B that, of course, has never been proffered. SPECIAL MASTER POPPITI: Because Mr. Christenson wanted to focus on the date, let's do that, and why don't you propose or discuss an appropriate date expecting that I am going to -- I am going to order the production. Or perhaps by virtue of agreeing on the ; date, you will agree to the production. MR. CHRISTENSON: I think that would be -- we may be able to resolve some of these issues. I don't expect we will resolve all the issues, Your Honor. SPECIAL MASTER POPPITI: I understand that. MR. CHRISTENSON: We can resolve the date issue, but I think that would make substantial progress. SPECIAL MASTER POPPITI: Let's take the time to -- do you want to take the time to do that now because it makes sense? Mr. Miller? MR. MILLER: The patent issuance date I ". -. -" .

!

WWW

corn .corbettr,eporting.

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 10 of 23

Hearing 32 (Paqes 122 to 125)
Page 122
was December 22, 2002, was it, Cass? MR. CHRISTENSON: Yeah. I think that's -- I don't think that has any bearing on prior art. For art to be prior and to be evidence that would support invalidation, we would have to be talking about someth back in the time period of the critical date. So, again, that's going back to October '97. MR. MILLER: Well, there is a question of the filing date in the U.S. was October of '98, so, I mean, I am happy to go to -- I just tried to pick a date that would have some significance in the case. MR. CHRISTENSON: The end of 1998, is that appropriate? SPECIAL MASTER POPPITI: What did you just say, December of l998? MR. CHRISTENSON: Yes. SPECIAL MASTER POPPITI: Mr. Miller? MR. MILLER: That's fine, Your Honor. SPECIAL MASTER POPPITI: And that woul be with respect to request for production No. 82 and 83. MR. CHRISTENSON: I assume that would apply to this set? SPECIAL MASTER POPPITI: The entire set, yes.
"

/
you say? it?

Page 124
SPECIAL MASTER POPPITI: Yes. Wasn't MR. CHRISTENSON: Right. MR. MILLER: Yes, January 19th. SPECIAL MASTER POPPITI: January 19th is a Friday. MR. CHRISTENSON: We will put that date down and respond by that date, and if there is some extenuating circumstances, of which I am not aware, I am confident we can work that out among counsel. We will j 1 expect to investigate and produce the documents by i I January 19tl1, Your Honor. MR. MILLER: Cass, let me ask one question, if I might, please. SPECIAL MASTER POPPITI: Please do. i MR. MILLER: When was -- LPL is a continuation of the business of LG Electronics when it did a joint venture with Phillips Electronics. Are we at ; a date and point here where you are going to take the 4 position that LPL doesn't have any documents because ~t was LG Electronics' documents if we pick a December 1998 date? 1I any MR. CHRISTENSON: I am not pick~ng 1

I

I

i

- --

- - -

-

--

Page 123
Mr. Miller, is that agreeable? MR. MILLER: Yes. SPECIAL MASTER POPPITI: So, then let me re-ask the question: Your having agreed on the date, may I have your agreement with respect to the production? MR. CHRISTENSON: Your Honor, we will agree to produce, in response to No. 82, subject to that date limitation. SPECIAL MASTER POPPITI: Okay. MR. CHRISTENSON: To the extent there is documents. I have to check on the availability. SPECIAL MASTER POPPITI: Sure. I understand that. And would it make sense to do with, and I realize we are only on 82, but would it make sense to do with LPL what we have done with Viewsonic and focus a date for that production? MR. CHRISTENSON: I think that's only fair, Your Honor, and I think what we would -- what we should try to do is to try to meet the date that Viewsonic has selected for its production, supplemental productions. SPECIAL MASTER POPPITI: That would be the 19th? MR. CHRISTENSON: Was that the 19th, did

Page 125
date with any intent of avoiding discovery. I don't know j what the facts are on that, Scott. I just don't know the answer to that. But, you know, if the company has documents that are responsive, then we have agreed to produce those documents. MR. MILLER: I guess my only point is that if there are documents -- I guess if you don't have 1 any documents that relate to products that were sold 1 1 during this time period, and I guess I want to be clear that if you took over the business h-om LG Electronics and continued to sell products but those sales took place ] outside the scope of this but they are the same products, 1 I I would expect those documents, the technical documents 1 i to be produced with regard to that even if you didn't 1 sell them during this time period if the products were the same; do you understand that to be -- is that consistent with your understanding, Cass? MR. CHRISTENSON: My understanding is that we are going to respond to your request 82, which is bills and materials for the modules, and if LPL has those documents, then we will produce those documents. MR. MILLER: Your Honor, I guess -- I don't want to backtrack, but I am very concerned about a I1 December 1998 date as opposed to some date when I kno~d

1

I/

-

"""

" " ""

--

1

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 11 of 23

Hearing
Page 126

1

33 (Pages 126 to 129)
Page 128
documents within LPL's custody, possession, and control and we are going to abide by that. SPECIAL MASTER POPPITI: Yes. Okay. Next, please. MR. MILLER: Next would be No. 83 would be the next request, which is the bill of materials for LCD modules. And, again, we would, with the history ol the discussion, we would accept the same date of parameters that we have discussed. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Yes, Your Honor. SPECIAL MASTER POPPITI: I feel like I should be doing "Mutiny on the Bounty" when I refer to you, sir, but that would be, that's a great part, but in any event, is there agreement with respect to 83? MR. CHRISTENSON: With respect to 83, they are now asking for bills and materials, I guess, for modules made by companies other than LPL, and I am nc sure I understand what it is they arc seeking there. MR. MILLER: I think what I am seeking is if you have possession, custody, or control over bills and materials from your competitor's products or someon else's products for the relevant time period, we want -- --" -

1 that LPL was in existence and was actually selling 2 products and would propose, then, a date in 2000, just to 3 be sure that we don't end up getting nothing out of this because of some fine point on the question of whether the 4 5 products were sold during the time period. 6 If they are substantively the same as 7 the products that were sold by your predecessor and that 8 business was transferred to you, I would expect to get 9 those documents. 10 SPECIAL MASTER POPPITI: I certainly 11 want the production to encompass the concern that you 12 have just raised. MR. CHRISTENSON: Your Honor, we have r 013 -- I can assure -- we don't have any intention of denying 1 4 the existence of documents under some sort of, you know, 1 5 16 technical basis that Mr. Miller is raising. 17 We have identified the date that's much 18 more appropriate than the date that was in the request. 19 SPECIAL MASTER POPPITI: Let's do it 20 of this way: I will -- you are an off~cer the Court, I 21 will accept you at your word, and if there becomes an 22 issue at a later point in time, I will deal with it 23 rather than directly and forcefully. 24 MR. MILLER: Thank you, Your Honor.

--

.-

-

- ----

Page 127
1 MR. CHRISTENSON: With that 2 understanding, we can -- that is acceptable. 3 MR. AMBROZY: Your Honor, a point of 4 reference. 5 SPECIAL MASTER POPPITI: Yes, please. 6 MR. AMBROZY: We had raised a similar 7 issue with Viewsonic earlier that Viewsonic has different 8 entities but Mr. Miller continued to restrict all his document production regarding technical documents just ta 9 Viewsonic America, and I am just curious how that cuts 1 0 11 with his request that LPL would request, of all its other 12 subsidiaries, that those documents be produced? 13 MR. CHRISTENSON: I don't think that's 14 what he was saying. SPECIAL MASTER POPPITI: Is something 1 5 16 like that before me at this point? 17 MR. MILLER: No, I don't think so, Your 18 Honor. SPECIAL MASTER POPPITI: Well, then, yo^ 1 9 20 may want to discuss that on your -- and I say this, 21 again, respectfully -- on your own meet and confer. 22 MR. AMBROZY: Thank you, Your Honor. ~2 MR. CHRISTENSON: My understanding is w : 3 24 are talking about LPL and its predecessors and any

Page 129
we would like them. SPECIAL MASTER POPPITI: And your definition of "custody and control" may be more narrow than Mr. Christenson's, but we will deal with that at some other point. I expect I understand what you are asking for. Mr. Christenson, do you? MR. CHRISTENSON: I think I do. So I guess we are just going to make this broadly bills and materials for whatever products. So 82 and 83, we will take togetl~er. SPECIAL MASTER POPPITI: Okay. MR. MILLER: 84 would be next. SPECIAL MASTER POPPITI: Yes, please. MR. MILLER: And they are documents sufficient to identify the parts of an LCD module and the structure, function, source, and/or assemblage of those parts, again, from January 1, '97, we would again, with date parameters we have discussed, we would be willing accept that same date parameters. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Your Honor, it seems to me, if we are already dealing with bills of materials,
8

www.corbettreporting.com

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 12 of 23

Hearing

34 ( P a g e s 130 to 133)
Page 13C
I am not sure what documents would be necessary in response to this where they are talking here about parts of a module. SPECIAL MASTER POPPITI: I mean, you ma be suggesting duplication. I don't know whether it does duplicate. Is that what you are suggesting? MR. CHRISTENSON: Well, I am suggesting that, among other things. I also don't see what, you know, what -- what documents would be responsive more generally and I don't see why they would need those documents. Viewsonic is well aware of -- of LPL modules and the parts of LPL modules, but once we have produced the bills and materials, I would think this would be redundant. MR. MILLER: Your Honor, it's not redundant because these are documents that relate to the structure, the function, and how those components are assembled. The bill of material, in my experience, merely just identifies the particular components. Obviously, we are not looking for them to reproduce it. This was a request limited by documents sufficient to identify and not all documents, again, relating to these components. -" ". *---

Page 132
relevant.

i

MR. CHRISTENSON: Your Honor, we disagree. One of the terms for the Court to construe in this case is a flat panel display device and what that means and what it includes. So this goes far, far afield, and just asks us to produce everything -documents related to every part of the module and every aspect of assembly of every part of the module. SPECIAL MASTER POPPITI: Mr. Miller, is there any way to more tightly focus the request? MR. MILLER: Without seeing the bill of materials, it's a little hard to know. SPECIAL MASTER POPPITI: Maybe that's -maybe that's the point. MR. MILLER: That's part of the problem. And, you know, Mr. Christenson, all due respect, Viewsonic is not in the LCD module business and really does not focus its energies on LCD modules, so we are trying to take discovery to be able to defend this case and that's what this is directed towards. SPECIAL MASTER POPPITI: Any other comments with respect to 84? MR. CHRISTENSON: No, Your Honor. My only comment, last comment is that Viewsonic may not ma

I

i !

1i
I

1

I I
,

j

1
i

i

i 1

1

!'
!

1

1
i
j

'
e

1

Page 131
SPECIAL MASTER POPPITI: I see that. Yeah. I can understand the expected difference between documents requested in 84 and the ones that we have just talked about. MR. CHRISTENSON: The other issue that's raised here is if we are talking about now assembly of the different parts, again, the modules and the claims -the claims in this case do not have to do with modules and they don't have to do with assembly of modules, so M are going to get into a lot of, basically, all of the manufacturing records in the company that have to do -that have nothing to do with the issues in the case because they are going to deal with assembling componel and subcomponents used within a module. SPECIAL MASTER POPPITI: Mr. Miller, would you address that, please? MR. MILLER: Sure. I guess the first frame and second frame, which are critical components o the alleged invention of the patents in suit. The patents each are used for assembling the components, and how these components interact and what they do and wha was known in the art at the time, again, goes to the issues that we have discussed previously. And, so, I think they are clearly different and they are clearly the LCD modules, but they buy these modules in vast quantities to be used in their products and they know h the products are assembled. The products are assembled for Viewsonic and that's the type of assembly that the package claims really address. They don't address assembly of the modules or the subcomponents in the modules. SPECIAL MASTER POPPITI: Well, I am -- I am going to grant the production of, by agreement, the date will be adjusted to the date that you have selected, and I will issue appropriate findings and recommendation if you tell me that you are not agreeing. MR. CHRISTENSON: I think that would be helpful, Your Honor, just to get your guidance on what it is you think we should be producing. SPECIAL MASTER POPPITI: Thank you. No. 85, please. MR. MILLER: 85 is the -- those components of an LCD module that are or can be used fo mounting the module to the external case of a product. Again, this is -- this is a, I guess, a subset 84, to some extent, but it is more focused on the

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 13 of 23

Hearing 35 (Pages 134 to 137)
Page 134
1

Page 136
same understanding, and I understand that, that, unless you have this information, you are going into -- it makes no sense to go into deposition. MR. MILLER: Right. SPECIAL MASTER POPPITI: So the 29th, then. This is 86. MR. MILLER: Yes. SPECIAL MASTER POPPITI: Mr. Miller. MR. MILLER: I think 86 is probably subsumed within 85 if they are going to produce on 85. SPECIAL MASTER POPPITI: Yeah. I am flipping, paging back and forth and I am having to blink to see the difference. Mr. Christenson. r MR. CHRISTENSON: Yeah. The wording i a little bit different. SPECIAL MASTER POPPITI: The wording a little bit different. MR. CHRISTENSON: I can't articulate the difference offhand. I am happy to focus on 85 and treat 86 as moot if that's agreeable. MR. MILLER: That's fine, Your Honor. SPECIAL MASTER POPPITI: That's fine.

:

2 3 4 5 6 7
8

9 10
11

12 13 14 15 16 17 1 8 -. 19 20 21 22 23 24

discussed date parameters. SPECIAL MASTER POPPITI: Mr. Christenson, this certainly is more, I will accept Mr. Miller's word, more focused than 84. Any objection to this with the amended date? MR. CHRISTENSON: What I am hying to determine is whether -- is 85 subsumed within 84? SPECIAL MASTER POPPITI: Is 85 subsume within 84? Well, from my perspective, it looks like it could be, but it's Mr. Miller's request. Mr. Miller. MR. MILLER: Again, I am not sure that it's completely subsumed because I don't know how LPL defines the edges of the module and what is part of the module components and what is a structure that is used for mounting. And, so, you know, my guess would be thi it is subsumed, but I don't know that for a fact because I don't know how, as I said, how LPL defines the edge of the module and what is or isn't part of it. SPECIAL MASTER POPPITI: You are not going to know it until you see it. MR. MILLER: That's the problem. SPECIAL MASTER POPPITI: I understand. I will treat it separately in light of counsel's representation.
" "

I!

1;

1

1

....

"

Page 135
1

Page 137
Thank you. MR. MILLER: And now we are back to 87, is a bill of materials for the back light unit, which is a -- a particular component described in the patent of these modules. SPECIAL MASTER POPPITI: And the rest them deal with the back light unit? MR. MILLER: Yes. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Well, yeah, 87, I believe, and 88 deal with a back light unit. And then I believe, Your Honor, that there is a continuing series of requests that, essentially, scroll through all manner of different subcomponents that are used to assemble LCD products. And, you know, we started off more broadly with what we discussed, I think, so far, and it seems to me that this is just unnecessary for us to go through each sub component like this in all manner of records, so we object to these requests. MR. MILLER: To the extent that these are included in 82 or 83, I mean, obviously, they just need to refer back and they don't have to produce them more than once.

/

2 3
4

5 6
7 8

9 10
11

12 13 14 15 16 17 18 19 20 21 22 23 24

And, again, my question is, Mr. Christenson: Do you agree to 85? MR. CHRISTENSON: Well, given Your Honor's ruling on request 84, we will agree to 85 -SPECIAL MASTER POPPITI: Thank you. MR. CHRISTENSON: -- with the date limitation. And, Your Honor, if we are going to be providing a more, you know, a more comprehensive set o documents for which we need to investigate, I would ask that we maybe be given until the other date that Viewsonic had mentioned, I think maybe it was the 29th? SPECIAL MASTER POPPITI: Yeah, it was the 29th. MR. CHRISTENSON: And I don't intend to wait until the last day. I am happy to do this on a rolling basis. SPECIAL MASTER POPPITI: I understand. Mr. Miller, any problem with the 29th, then? MR. MILLER: Only that we are -- that it really pushes us out in terms of our depositions. You know -SPECIAL MASTER POPPITI: It would be t11'

:

Ii

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 14 of 23

Hearing

(Pages 138 to 141)
Page 138
To the extent they are not, which Mr. Christenson's response leads me to think they may nc be, in his mind, then they, independently, should be produced. SPECIAL MASTER POPPITI: For the same reasons that you articulated earlier? MR. MILLER: Absolutely. MR. CHRISTENSON: And, Your Honor, I cannot say how the bills of materials are formatted or what is or is not included in the bill of materials related to a module, for example. That may have a line item for a back light unit. I don't know if there is a separate set of documents and records that would break out additional subcomponents for each component; for example, a back light unit bill of materials that then lists other subcomponents. I just don't know the answer to that. SPECIAL MASTER POPPITI: If it doesn't, you know, you don't have it to give. If it does, you have it. MR. CHRISTENSON: Right. I don't know if it exists and I just dispute the relevance of that discovery, Your Honor. SPECIAL MASTER POPPITI: Do you want t

Page 140
without exception or after Judge Farnan finally rules. Next, please. MR. CHRISTENSON: Yes, Your Honor. An by the way, some of this may not be -- some of this we may be able to work through depending on the formatting of the documents and depending on what level of detail turns out to be satisfactory. SPECIAL MASTER POPPITI: That's fine. I would hope that, in light of even the findings and recommendations, that you would take the opportunity to see if you can't forge some agreements so that we can, you know, continue on track without having to sidetrack the Court. MR. CHRISTENSON: Yes, Your Honor. SPECIAL MASTER POPPITI: Next, please. MR. MILLER: Your Honor, one, I guess, point of housekeeping, looking at my notes, I see that the only request to which they actually agreed to produce documents were 82,83, and 85, and I guess, in light of that, I am not sure that, you know, I am -- I guess I'd re-raise the issue of whether the 29th is an improper date or whether they can be -- do it earlier so we can at least get those documents, these materials that are going to be subject to an order that we are not going to get

Page 139
make any further record, Mr. Miller, on relevance? MR. MILLER: Excuse me? SPECIAL MASTER POPPITI: Do you want t make any further record on relevance? MR. MILLER: No. The only thing I would say, just to pinpoint it, is that the patents discuss the first frame, which is a critical component, as being a component of the back light unit in certain circumstances, and, therefore, the back light unit also has particular interest in this matter. SPECIAL MASTER POPPITI: Okay. I am satisfied that the record is similar to my ruling on other discussions, and with respect to, then, to 87 and those requests that follow relating to the -- the back light unit and/or its components, unless you tell me that there is agreement, I will issue a finding and recommendation with respect to that. MR. CHRISTENSON: Yes, Your Honor. I think we are in dispute on that, but I understand your ruling, obviously. SPECIAL MASTER POPPITI: Okay. And it will be structured in the fashion that we have talked about earlier in terms of providing it within so many days after either I issue my findings and recommendation, ".-," , . -.------.. ,- --.- .
" "
"

1
1

Page 141
2 3 4
5

6 7
8

9 10
1 1

12 13 14 15 16 17
18

-"

19 20 21 22 23 24 .,"

until February, probably. I'd at least like to start being able to get some of these materials to move this case fo~ward. Whether we could go back to the 19th on those, to the three they have agreed to -SPECIAL MASTER POPPITI: I understand what you have just said. Mr. Christenson, is there any give on the agreement date? MR. CHRISTENSON: I'd like to be as cooperative as we can, Your Honor. I am just trying to avoid being unrealistic. I think that -- I don't have my calendar right in front of me. Is the 19th a Friday? SPECIAL MASTER POPPITI: The 19th is a Friday. MR. CHRISTENSON: What if we had until that following Monday? SPECIAL MASTER POPPITI: The 23rd? MR. CHRISTENSON: Right. SPECIAL MASTER POPPITI: Mr. Miller. I am sorry, the 22nd. MR. MILLER: That's fine, Your Honor. We can do it then. SPECIAL MASTER POPPITI: Then let's do
--.? -

I

i
I

, ,
I

i
i

I 1
i i
i

i
1

'
I
I

I

!
i
i i i

,

"

-

"

_ 11

ting.corn

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 15 of 23

Hearing
Page 142
the 22nd. Thank you. And that's with respect to each of the requests that Mr. Christenson has agreed to. Next, please. MR. MILLER: Next, I believe, is request No. 101, and this deals with the, what the patent in suit defines as the reduction of side space. That seeks documents referring or relating or evidencing communications that mention the reduction of side space as expressed in the patent, and there is a citation in the patent line and column number. And, obviously, this idea is at the heart of the supposed invention of these patents in suit and obtaining non-privileged communications with regard to what it seems to me is directly relevant to be able to put the supposed invention into the proper light of how it achieves whatever it achieves vis-a-vis the prior art, which also sought to address the same issues. The side mounting sought to eliminate side space as well. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Yes, Your Honor. Thi is a request that relates to a reference in the ,641 Patent to a reduction of side space, and we have investigated this and we have infonned Viewsonic that w
"

1

37 (Pages 142 to 145)
Page 144

1;

that we can investigate their true ownership of these patents. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Your Honor, the documents that Mr. Miller is referring to, specifically, the dec. agreement, which is an agreement between LPL a another company, arose in the context of the California case, and there was protracted litigation that we don't need to get into here related to that agreement. But I 1 don't know that there is any allegation, I have never seen an allegation, that that agreement has anything to do with the technology in this case. And I am not aware of any joint venture related to the technology at issue ! in this case, and I am not aware of any defense that's i ever been alleged related to inventorship or ownership with respect to these patents. So I think they are trying to import an issue from another case into this case that just doesn't

!

I1

apply. LPL owns these patents, it always has , owned these patents, and we have -- we have provided the Invention disclosure forms from LPL's employees. SPECIAL MASTER POPPITI: Mr. Miller. ,

----

Page 143
don't have any responsive documents. SPECIAL MASTER POPPITI: That would dl it, would it not, Mr. Miller? MR. MILLER: That would do it. I was not aware of that communication, but -- but that that's -- if we got a firm representation to that effect, that will do it. I appreciate that. SPECIAL MASTER POPPITI: Thank you. Next, please. MR. MILLER: The next issue are, I believe, our requests 102, 103, which deal with agreements pursuant to which the methods of mounting fld panel display device, other than front mounting, was considered, discussed, analyzed, conceived, invented, developed, or used. Again, this relates to discovery of any joint venture products that, or technologies that may have been developed. We know that the side mounting was developed as a result of a joint technology venture between LPL and Digital Equipment Corporation and tha that ultimately resulted in the Court finding that LPL did not have standing to enforce those patents, and we are seeking similar kinds of agreements that would relate to that technology and/or the rear mounted technology so
" - .

Page 145
MR. MILLER: All I can say is that LPL, my understanding, I wasn't present in the California case, but LPL made the exact same statements there, and until these documents were unearthed, you know, they contended, as affirmatively as Mr. Christenson does here, that they own those patents and probably still contend that on appeal. So, their joint venture relationship with third parties, I haven't seen the dec. agreement, so I can't tell you whether or not it relates to mounting activities, I don't know what Rand D work they did with third parties that may well have done this. I understand that there were invention disclosure forms for the side mount patents that were produced in the California case that it turned out to have been after the work was done as part of this joint venture agreement. So, I am not casting aspersions, but I am trying to seek discovery into legitimate issues, and, no, we did not seek to assert affirmative defenses and claims that we didn't have any justiciable basis to assert, but, obviously, if these documents, you know, deliver some information, we will be back in front of Judge Farnan forthwith seeking to introduce the issuance into the case as an appropriate one.
A

.
j

/

,

/i
,
,

!

.
i

i

-

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 16 of 23

Hearing

38 (Pages 1 4 6 to 1 4 9 )
Page 1461
SPECIAL MASTER POPPITI: Well, let me see if I understand what you just said. Are you suggesting that you have not pled an issue that touches on the issue of validity, which I expect implicates ownership? MR. MILLER: No. We have clearly asserted issues with regard to validity and enforceability of the patent, both of which would be issues -SPECIAL MASTER POPPITI: Involving ownership. MR. MILLER: -- involving ownership, yes. We have not made -- as Mr. Christenson said, we have not made a specific charge that they don't own these patents at this point, but we clearly have raised issues that raise the specter of whether or not ownership is proper. SPECIAL MASTER POPPITI: Well, it's notice. MR. MILLER: Yes. SPECIAL MASTER POPPITI: Mr. Christenson, with that, is there any agreement with respect to 102 and 103? MR. CHRISTENSON: Well, I guess, if you

Page 148
earlier? In other words, I think Mr. Miller's contention is, perhaps, somewhere out there, is some agreement that prior to the time we invented rear mounting, we were engaged in a joint venture and that joint venture actually developed a rear mounting, which would mean we would be going back to the critical date period as of December, '98, or earlier. SPECIAL MASTER POPPITI: Mr. Miller, do you agree? MR. MILLER: We can -- yes. We can look at that, the date parameter that we discussed earlier. MR. CHRISTENSON: We will agree to respond, given that limitation, Your Honor. SPECIAL MASTER POPPITI: Thank you. An that covers 102. MR. MILLER: Your Honor, if I may be heard a little bit further on that? SPECIAL MASTER POPPITI: Yeah, please. MR. MILLER: It occurs to me that if there was an agreement that was entered into after that date, which affects these mounting patents, I wouldn't want that to be excluded, and, so, I am nervous, you on know, being asked to take sometl~ing blind faith that tllat's the proper date range because I just don't know
""

"

,,......"

"

Page 147

Page 149

the dec. agreement, so I don't know if that's the agreement.

3

5

technologies. So I guess I am asking to allow the request to run the full breadth of the time because there

it? of is what I have read in the news releases about the
10

MR. CHRISTENSON: Your Honor, I think around there. One is the one we have been focusing on,

requests. SPECIAL MASTER POPPITI: looking for, so, certainly, it encompasses a dec.

SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: There is a second

be -- that may be the answer, but certainly it does encompass a dec. agreement. MR. CHRISTENSON: If we are talking

20 21
22

SPECIAL MASTER POPPITI: Right. MR. CHRISTENSON: And I think the second issue is foreclosed clearly by interrogatory responses where that issue was raised and responded to, and the answer is that there is no transfer of interest.

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 17 of 23

Hearing 39 (Pages 150 to 153
Page 15C
SPECIAL, MASTER POPPITI: Thank you. I there is agreement with respect to 102, and I expect that also relates to 103, does it not? MR. MILLER: From my standpoint, it does, Your Honor. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Well, if we are talking about documents concerning mounting technolog developed and invented by LPL between the January 1, '' and the December, '98, we can agree. SPECIAL MASTER POPPITI: Mr. Miller. MR. MILLER: I don't know why I would be limited to documents about an invention by LPL when -LPL has documents that show it was invented by someor else, I shouldn't be -- I sllould be entitled to those as well. MR. CHRISTENSON: That's fine, Your Honor. SPECIAL MASTER POPPITI: Thank you. Next, please. MR. MILLER: Next would be request No. 119, which are documents that refer, reflect, or evidence use of a flat panel display product of the element which

Page 152
There is nothing that I am aware of. But if there is something that Mr. Miller is thinking of, in particular, I am happy to address that. SPECIAL MASTER POPPITI: Mr. Miller. MR. MILLER: Your Honor, we are not seeking to see what Mr. Bohannon identified as Exhibit ( Obviously, that's been produced. What we are asking f o ~ is the element in the product which he identified as C. We are trying to make this as clear as possible so that it wouldn't be a misconstruction, and I think we are getting an overly narrow reading of this request by plaintiff. What we are seeking is information regarding, in a flat panel display device product, that element which they chose to identify as element C in those products, not just what Mr. Bohannon happened to do, but in their possession, custody, and control generally because it clearly relates to the central issues of infringement in this case. SPECIAL MASTER POPPITI: Based on you description, it certainly is broader than what Mr. Christenson said that they have already produced. MR. CHRISTENSON: Is it related specifically to the VX 900?

Page 151
LPL has identified as frame C in pleadings in this Court. And what we are interested is in documents that LPL has in its possession, custody, or control that show the utilization of that structure because that is a critical element of what they contend to be the infringing structure of the Viewsonic product, and to the extent they have information about that structure being used by themselves or others, it clearly would be relevant here. And, obviously, the dates of that use would be highly relevant if it precedes any of the filing dates of the patent. SPECIAL MASTER POPPITI: Mr. Christenson. MR. CHRISTENSON: Your Honor, as I understand request 119, it's focused on a, what's referred to as frame C, a declaration of an expert, and one that's Mr. Bohannon, LPL's expert, and he is t l ~ e that made the designation in frame C in an exhibit to a declaration, and we have produced to Viewsonic all of the documents from Mr. Bohannon related to that issue and related to frame C and we have produced all of our patent files, as I mentioned earlier. So, I don't know if there is anything

Page 153
MR. MILLER: Cass, it's related to the tray, what's been called the tray, and what you call the first frame, and the use of that structure in other products. I can't be any more clearer than that, and I think the request is pretty clear that it's not limited to the VX 900 and it's not limited to a component that Mr. Bohannon happened to put a little sticky on that said "C." It's addressed to the structure of the product and the structure that's in the product that you are accusing infringement. SPECIAL MASTER POPPITI: Well, Mr. Christenson, you just asked a question whether it wa: limited to VX 900; right? MR. CHRISTENSON: Yeah. The answer, I think, is no. SPECIAL MASTER POPPITI: Right. MR. AMBROZY: Our question, Your Honor, is Mr. Miller discusses he is interested in the frame as it pertains to infringement, but, again, we are the patent holder so why would we be worried about the infringement? SPECIAL MASTER POPPITI: Mr. Miller. MR. MILLER: Your Honor, to the extent

Case 1:04-cv-00343-JJF

Document 647-23

Filed 05/02/2007

Page 18 of 23

Hearing 40 (Paqes 154 to 157)
Page 154

1

Page 156

1

being a common element of every LCD product that's sold out there and they have not taken the position that infringes elsewhere, that's evidence that should go before a jury. To the extent that they make this product themselves, that they have identified this component, or others have identified this component as something other than the first frame, which they tried to shoehorn it in this case as being, that would be relevant to the trier of fact as well. It's just a plethora of issues where the structure of the product and the equivalent structure in other components would be relevant to. And this request seeks to get their -- information they have in their possession, custody, or control that relates to the use of a particular component that they have identified as component C in the VX 900 in other flat panel display products. SPECIAL MASTER POPPITI: Mr. Christenson, I certainly understand the request and the strength of it. Any -MR. CHRISTENSON: Your Honor, Cass Christenson. Given that comment, I think it's now more clear what they are after. And it's disconcerting

Page 155
because it sounds like what they want is any documents that exist related to or analyzing products that may infringe, and there are really two categories of documents. One category are the documents that LPL has that are not privileged, and those documents have already been produced, including documents regarding third-party products. The other category are documents that,

1

the point about infringement, Your Honor, whether the frames are important and whether we have asserted I infringement agains