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Case 1:04-cv-00343-JJF

Document 647-22

Filed 05/02/2007

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Case 1:04-cv-00343-JJF

Document 647-22

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Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PHILLIPS, L.G., LCD CO., LTD, Plaintiffs,
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C.A. No. 04-343(JJF)

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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 Friday, January 19, 2007, beginning at approximately 11:45 a.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

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APPEARANCES (Continued): MCKENNA, LONG & ALDRIDGE, LLP CASS W. CHRISTENSON, ESQ. REL S. AMBROZY, ESQ. JESSE KOKRDA, ESQ. LORA BRZEZYSKI, ESQ. 1900 K Street, N.W. Washington, D.C. 20006 for Plaintiffs RICHARDS LAYTON & FINGER FREDERICK L. COTTRELL, 111, ESQ. ANNE SHEA GAZA, ESQ One Rodney Square Wilinington, Delaware 19801 for Defendant Tatung Co. GREENBERG TRAURIG LLP FRANK MERIDETH, ESQ. VALERIE HO, ESQ. 2450 Colorado Avenue, Suite 400E Santa Monica, California 90404 for Defendant Tatung Company of America, Inc. CONNOLLY BOVE LODGE & I-IUTZ LLP JACQUELINE MASON, ESQ. 1007 North Orange Street Wilmington, Delaware 19899 for Defendant Viewsonic Corporation BINGHAM McCUTCHEN LLP SCOTT R. MILLER, ESQ. MANUEL NELSON, ESQ. 355 Soutli Grand Los Angeles, California 90071-3106 for Defendant Viewsonic Corporation

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global, if you will. It would encompass what you have already briefed and it would encompass any supplemental ! I briefing on additional claiin terms. I So, with that, the expectation is that that permits you to direct your focus on other work and on other deadlines as contemplated by the order. I So, as I would expect paragraph five to 1 i operate, it is really supplemental opening briefing, if you will, on additional claim terms and a global ! i responsive brief on everything that you have briefed heretofore and the new terms that you briefed by April 1 30. Does that answer LPL's suggestion of a discussion topic? 11 1 MR. AMBROZY: Your Honor, this is Re1 II Ambrozy. The thing that we are curious about was I think we had previously identified either today -- I think it 1 was the 19th of January as the date for defendants to i! identify additional claim terms, so if I understand you correctly, they don't need to do that until we exchange the chart on the 15th; is that right? SPECIAL MASTER POPPITI: No. This, again, as I see the operation of this document, I am just referring to briefing. - . --" . .

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SPECIAL MASTER POPPITI: I sincerely appreciate the work that local counsel did last night to agenda items that are ripe for some discussion, not necessarily ripe for determination, but for at least ripe for some discussion, and I will use the agenda that Miss Mason and others prepared, so I am looking at the January 19th document which I received this morning. The first item on the agenda is questions regarding the Amended Rule 16 Scheduling Ordc which Judge Farnan issued on January 17tl1, and let me suggest, perhaps, some items that certainly should be discussed and entertain any discussion with respect to any other items that you all need to bring to my attention. No. 1 -- and this may address the request of LPL that defendants identify whether they seek briefing on any additional claim terms -- loolcing at paragraph five of the Amended Rule 16C Scheduling Orde~ I expect that the way that is intended to operate is that rather than filing a response brief by each of you on January 3 1,2007, that filing date would be forestalled and the filing date for responsive briefs in the paragraph five that I just referenced to be filed on May 15 of 2007, would be the response briefs that would be

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MR. AMBROZY: Okay. That's all I wanted to know. Thank you, Your Honor. SPECIAL MASTER POPPITI: None of the other dates in the scheduling order, unless they have been addressed by this supplement, should be considered changed. MR. CHRISTENSON: Your Honor, Cass Christenson for LPL. I think, as a point of clarification, LPL was wondering whether there are, indeed, any additional terms that would require briefing at this point given the fact that LPL has withdrawn some of the additional claims from the process, so -SPECIAL MASTER POPPITI: I understand your comment, and that really is for you all to discuss. Whether you want to discuss it now or whether you want discuss it off-line, it matters not to me. If you want to take this time to do that, please feel free to do that, but I -MR. AMBROZY: Your Honor, that's why I brought up the January 19th date that the Court had set. SPECIAL MASTER POPPITI: Sure. And I understand that the landscape has changed somewhat, so if, by virtue of what you have done, we don't need to operate under the amended order, then certainly tell me - - .,-, " . ..- . "

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that. But what I was expecting is if there is the need for supplemental briefing, that paragraph five addresses that. MR. AMBROZY: Your Honor, that's why we were curious about sticking to the January 19th date because if there are no additional terms, then we don't believe there would be a need to modify the original paragraph eight of the scheduling order. MR. MILLER: Your Honor, this is Scott Miller for Viewsonic. I think where we are today is we believe there are probably two or three terms that are going to be, from our standpoint, that we have identified that likely will be submitted. The one thing that's missing from the proposed amended schedule that was in the original scheduling order was a process by which terms were identified, which we had as the 19th, and then the question of the pal-ties exchanging proposed constructions to see if they could reach some agreement as to the meaning of those terms or not or at least know where everybody's proposed construction is prior to updating the chart on the 15th. I don't know if there is -- if it's possible to set a date for that exchange of proposed constructions? constructions which would be February 5th. MR. AMBROZY: We are okay with that. And I think within two weeks from the February 5th date, I think we could exchange and detennine whether the claims even require briefing. And if they do, then we just stick with your new paragraph five of the claim chart being updated on April 15th. We would brief the new terms on April 30, and then we'd have the one single response brief on May 15. MR. MILLER: If there is no new opening brief, then we would just, presumably, have the response brief on May 15th? SPECIAL MASTER POPPITI: Right. MR. AMBROZY: I am just concerned -- I see also that the scheduling order requires a Markman hearing no later than May 30. SPECIAL MASTER POPPITI: Yes. MR. AMBROZY: And you believe that getting the response brief by May 15 is enough time to conduct that hearing by the 30th? SPECIAL MASTER POPPITI: Yes. MR. AMBROZY: Thank you, Your Honor. SPECIAL MASTER POPPITI: So, if those dates make sense to everyone, consider them done. And,

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SPECIAL MASTER POPPITI: No reason not to. MR. MILLER: Excuse me? SPECIAL MASTER POPPITI: I said, "There is no reason not to." Do you want to discuss that now? MR. MILLER: Sure. As to exchanging the proposed terms, we had targeted today as the date. Given the change and eveiything else that's gone on, I was sort of hoping that we could move it to Monday, but if we ha\ to do it today we can do it to leave it to the prior schedule, but Monday would just be more convenient so that we could finalize those terms. So we could do it, from my standpoint, by noon on Monday, our time, whicl would be 3:00 Eastern Time so there wouldn't be a huge loss of opportunity. And then I would suggest maybe the parties exchange proposed constructions perhaps two wec after that so that they can -- it's going to be a small number of terms, so we could do it more quickly if peopl~ want, but I am just trying to fit it into, because we are going to have a lot of discovery happening given the discovery cutoff date that's been established, so my thought was sort of two weeks to do exchange of propose

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again, I would, altl~ough can go through the transcript I when I have it to issue those dates from my desk, if someone would do the courtesy of capturing them and circulating them to make sure we are all on the same pagr with dates and send it to me either close of business today or midday on Monday, that would be great. MS. MASON: Your Honor, this is Jacqueline Mason. That's fine. Local counsel will work together again to get that to you. SPECIAL MASTER POPPITI: Appreciate that. MR. AMBROZY: Your Honor, Re1 Ambrozy again. SPECIAL MASTER POPPITI: Yes. MR. AMBROZY: Paragraph one of your new Amended Rule 16 discusses that, in the italics, including all deposition as well as interrogatories and document discovery directed to tlle new claims. SPECIAL MASTER POPPITI: Yes. MR. AMBROZY: But then in paragraph two, it talks about ten additional interrogatories, ten requests for admissions, and ten document requests. I just want to clarify, since the request for admissions

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Page 10 additional requests for admission are limited to just the new terms. SPECIAL MASTER POPPITI: Just to the nev terms, that's correct. MR. AMBROZY: Thank you, Your Honor. MR. MILLER: New terms or the new claims? SPECIAL MASTER POPPITI: New claims. MR. MILLER: Thank you. SPECIAL MASTER POPPITI: Sorry, the new claims. Next question on the scheduling order: Are there any other issues that you see need to be discussed? MR. KIRK: Your Honor, this is Dick Kirk for the plaintiff, for LPL. I do have one that I would like to discuss with Your Honor this morning. The original scheduling order said that depositions -SPECIAL MASTER POPPITI: Mr. Kirk, whic scheduling order are you referring to? MR. KIN(: Well, the very original one, 811 8,2005. SPECIAL MASTER POPPITI: I have that. MR. ICINC: Paragraph 4E said that Page 11 depositions -- I don't want to make amends -- but it says, "Depositions shall be completed by November 17, 2006." That date was moved, by agreement of the partie5 but the parties had contemplated, I think, that that reference really meant depositions of each other, not necessarily third parties, I think, in part, because that completion date was still 15 months before the start of tsial. Recently, the parties agreed, among themselves, that third-party discovery, deposition discoveiy, could continue and end by, it was 90 days before the trial, so I think that would be October 21st -SPECIAL MASTER POPPITI: I saw that. MR. KINC: -- or thereabouts. And we reported -- it was one of the few things we agreed on -and reported to Your Honor, in a letter from my partner, Ashley Stitzer, on January 10. The new scheduling order says that the time to complete third-party discovery is March 30,2007 so at least our initial response is that that has at least cut our -- the time we were contemplating by some seven months. And at least right now, our -- LPL's

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Page 12 serving, and probably fighting about third-party depositions in that short of time within the next 70 days, I guess, is what we have, so we would like to talk about that if we could. SPECIAL MASTER POPPITI: Well, yeah. Certainly talk about it. I did bring your request to the attention of Judge Farnan, so he was aware of the request that was mutual to deal with issues involving third-party discovery as you described. MR. KINC: Would Your Honor want us, LPL, or everybody, to maybe file a motion addressing thi particular item? SPECIAL MASTER POPPITI: I don't know that I need a motion. What I'd like you to do, knowing that it is now more clearly my responsibility to manage this going forward, I would like you to describe why all of the time you are requesting is necessary. As I read the original scheduling order, I read that to mean non-expert deposition discovery, and I read that, therefore, to mean non-expert deposition discovery even of contemplating third parties. I am looking at the language dealing wit11 depositions. The second sentence of that paragraph reads, "The limits on the number, length, and timing of Page 1 3 non-expert depositions may be modified by agreement of the parties or by order of the Court for good cause." So, I guess what I need, in light of what you are suggesting, is whether it is a joint document or whether it is a document, no more than two pages each, describing for me why you each believe there is good cause to extend that right up to the front door of the trial. MR. KIRK: Yes, Your Honor. SPECIAL MASTER POPPITI: And I realize, you know, looking down at the scheduling order that Jud Farnan entered, I know that the time frames are challenging, but I also know that the discovery cutoff, as it presently exists in that scheduling order, is two-and-a-half months away. So, if there is an interest to provide a submittal that is jointly submitted, I am certainly happy to receive that. MR. KIRK: Your Honor, if may suggest that counsel talk among themselves. SPECIAL MASTER POPPITI: I was just going to suggest if you want to take, even now, just a few minutes off-line, I mean, I can do that. I will just

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