Markman Hearing February 8, 2007

(standard teresadactyl disclaimer with the following additions: very tired from 2 hours of bumper to bumper traffic going to SF, 6 to 6 1/2 hours of argument during the hearing and 2 more hours of bumper to bumper traffic in the rain coming home)

The hearing started at 9:15 AM and finished at about 4:45 PM. It was a very long day and the court reporter was kept very busy during the entire session. Vasco_bill, Cousin Bill and orang_ganjil were in attendance. Most everybody else seemed to be lawyers from both sides. We were clearly the outsiders.

Judge Patel said that there would not be any rebuttal periods during the presentations. One side would present on an issue which would be followed by the other side's presentation. The judge's comment was "Plenty of paper here". Had she allowed rebuttal we would still be in court.

There was so much covered during the hearing that it will be difficult to report back on all the issues covered. When the transcript is released it will be easier to put in clearer perspective all the many topics that were covered. By comparison, the MSFT Markman Hearing had many fewer disputed terms.

I will go into more detail about some of the specific issues when I review my notes in the coming days but the release of the transcript will be important because the entirety of hearing will be better reported.

The hearing in a nutshell was each side pretty much reading their powerpoint slides from their briefs to Judge Patel.

Here are some points that I took out of the presentations today:

1. The Burst attorneys did a good job outlining the Burst claim constructions and Apple did a better job in outlining their claim constructions than was done in the tutorial. I definitely would give the advantage to Burst but Apple is quite good at spreading on the mayonnaise. I also sense that the Apple attorneys were somewhat arrogant in their attitude and almost were talking down to the judge. It was the tone more than anything and it was like "We're Apple and we know what this stuff is all about" attitude. I was quite amused when Powers used this attitude to sell his "time compression" construction.

At one point Parker Folse made a comment about how Matthew Powers had 'jumped into a rabbit hole' during his (Powers) presentation. This was clearly a reference to "Alice's Adventures in Wonderland" where 'It tells the story of a girl named Alice who falls down a rabbit-hole into a fantasy realm populated by talking playing cards and anthropomorphic creatures." There was some laughter and I think I might have seen a smile on the judge's face.

http://en.wikipedia.org/wiki/Alice's_Adv...

2. The judge was clearly wearing her game face today and the light-hearted banner was missing. She asked many questions during the presentations and was trying to not give away her position on any of the issues. However, the way she asked some questions and the nature of those questions were informative in my opinion. She was particularly hard on (Apple) Nicholas Brown's presentation on how Apple viewed the transmission issues in the patents. Apple was arguing that the transmission had to be to a "remote location" and the judge countered that 'why couldn't it be right next to the device?" For her "remote" didn't have to be any distance away from a device. Next to the device seemed to work for Judge Patel. The judge said she had a problem with reading a limitation into a claim as Apple was trying to do in their arguments.