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EXHIBIT 8
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fee is one of the important aspects, but there are other 09:22:01 aspects which also have to be covered, and they will only have a full-fledged and valid contract if they agreed on all essential elements of the contract, and only then will they dismiss the case, or would they make -- would they render the case moot. Q Let's suppose that the parties do not agree on
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a license fee. Does the Orange Book decision say that the defendant must use the second alternative option of letting the patent holder set the royalty? A Q A Q Please repeat the question.
If the parties do not agree on a license fee -- 09:22:37 Yes. -- does the Orange Book decision say that the
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defendant must use the second option of allowing the patent holder to set the royalty? A They have the option. They do not -- they
must -- they have the option to do it. Q Let's talk about a proceeding in which the
I'm not aware of any rate setting procedures which have been brought to my attention. I have not taken part in
any of those, so, of course, I cannot know the details, and I can only speculate, but my speculation would be that the parties will determine the rate according to the -- the standards which are used also when it comes to the determination of license fees; for example, when it's about damages or in cases like this. So I would
assume that similar standards would be applied. BY MR. LOVE: Q And I think we discussed this earlier, so
correct me if I'm wrong, but the standard used to evaluate the rate in that proceeding would be whether the rate was within the limits set by antitrust law; is that correct? A Q Yes. What happens if the rate set by the patent
rate set by the patent holder is not within the limits of antitrust law; what will the court do? A Then a -- a lower rate will be set, which is The court will control the offer
such an offer, and will determine whether this is within 09:24:42 the boundaries of antitrust law, and if not, the rate will be set according to antitrust law and the other important laws which come into play. Q Does the license seeker have to pay the rate
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that was set by the patent holder until the court rules? 09:25:01 A Payment means transfer of funds to the -- to No. He has to escrow money, as much -If he wants to
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the licensor?
be on the absolutely safe side, he may depose estimate escrow as much money as the patent holder has demanded, but as I said before, of course, if he thinks this is too much, he has the option to go below the rate demanded by the patent holder and let this rate be reviewed, and, of course -- yeah, so. Q Do you know how long a proceeding -- a court
not -- these have not taken place, as far as my knowledge is concerned. Q I could only guess.
decisions that you are aware of that hold that the rate
set by a patent holder under the alternative Orange Book 09:26:10 process is acceptable? A As there are no reported 315 procedures, I'm
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not aware of that -(Telephonic interruption.) MR. LOVE: I'll -- I'll ask again just so we
have a clear question and answer. Q As far as you are aware, there are no reported
German decisions showing this second alternative Orange Book procedure? A The rate setting, the second -- the rate
setting -Q A reported. Q So we believe -- you believe that the standard Yes. -- lawsuit? No, the rate has not been
that a court would apply in that proceeding is whether -- is -- is to set a royalty within the limits
decisions? MS. BERRY: THE WITNESS: Objection; form. Purely speculating. I wouldn't I
see any other standards which might be reasonable. wouldn't see any of those standards could come into
play, so it's not a -- yeah, I do not only believe it, there are strong arguments for that. BY MR. LOVE: Q
Book offer that a license seeker had made and that later -A Q Who was? Sure. Let me start again.
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So we are talking about the first Orange Book, not the alternative procedure, but the straightforward Orange Book offer. A Q Yes. So suppose a patent holder rejects an Orange
Book offer and then a German court finds that the royalty offer was so high that that rejection was an abuse of antitrust law. A Yes.
findings of fact and conclusions of law -A Q question. A Q Sorry. Did you -- that's okay. Did you rely on Judge Robart's April 19th findings of fact and conclusions of law in forming your opinions in this case? A Q A No. Why not? They haven't been produced to -- they haven't I'm a expert on German law, and No. I'll just finish -- let me just finish the
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specific issues of that. Q Are you aware that Judge Robart made specific
findings concerning a RAND royalty for Motorola's H.264 patent portfolio? A I'm aware that these things were being
discussed, but I'm not aware -- not informed about any of the details of this proceeding. Q
conclusions are not relevant to your opinions in your expert reports? A I'm only commenting on German law. I'm an
describe the Germany situation, the German Orange Book procedure, and given these facts, I don't think these
from implementers of a standard is holdup? MS. BERRY: THE WITNESS: BY MR. LOVE: Q Do you agree that demanding royalties that Objection; form. No.
Maybe we have to come back to the definition of 09:31:31 I don't know in which context you use the word
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understanding what you believe the definition of holdup is, so my first question was, "Do you agree that demanding excessive royalties from implementers of a standard is holdup?" And I believe that you said "No." Do you agree that
demanding royalties that exceed the value of patented technology is holdup? A It's pure -- it's negotiating a contract.
assume that the same rules would apply; that because the 09:43:12 test is -- if the objection offer of a license offer
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violates antitrust law and in order to determine whether 09:43:25 or not there is a violation of antitrust law, you have to consider all relevant facts and specifics of the case, and all these specifics of the case together will bring the court to a evaluation whether or not an offer is -- an offer is in accordance with antitrust law. Q So Microsoft did make an Orange Book offer in
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Mannheim; correct? A Q That's what I understand. Did the Mannheim Court find that Microsoft did
not offer a reasonable rate? A The Mannheim Court said that it was not a
violation of antitrust law if Motorola did not accept this offer. Q Did the Mannheim Court find that Microsoft did
not offer a reasonable rate? MS. BERRY: THE WITNESS: Objection; asked and answered. Reasonable?
(Exhibit 1 was marked for identification by the 09:45:03 Court Reporter.) MR. LOVE: marked as Exhibit 1. MOTM_WASH1823_0602118. Q If you turn to the second page, you will see
09:45:03
So I'm going to hand you what's been 09:45:04 Exhibit 1 bears the Bates stamp
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that this is a translation of the Mannheim Court's judgment on May 2nd, 2012? A Q Mm-hmm. Could you turn to page 43 of the English Bears the Bates stamp
On page 43 the last sentence before Section C says, "The taking of evidence on the issue of whether the offer is reasonable (in any event) is thus not required." Do you see that? Yes. So the Mannheim Court did not evaluate whether
The taking of
infringement action, and in this infringement -- this infringement action should not be overloaded by taking
evidence in order to determine the reasonableness of the 09:46:07 offer because then you would not have a swift and clear infringement action.
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The idea of the -- of the decision is to say if 09:46:17 a rate has been set, then it's okay. Otherwise, if
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there's unclearness as to the rate -- we don't want to overfreight -- to overload this infringement proceeding
with the -- with these issues -- then the parties should 09:46:33 go the other way, should go to a Section 315 proceeding. 09:46:39 And then in the rate setting proceeding of this -- this other alternative, all these issues would -- would be able -- would come up. Q So I read it differently.
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Microsoft's offer was a violation of antitrust law, and it came to the conclusion that there are serious doubts as to whether the -- the offer is -- is high enough under all circumstances, so the rejection of this offer
Microsoft's offer was not RAND? MS. BERRY: testimony. THE WITNESS: It says by -- the Mannheim Court Objection; form, misstates
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said, Microsoft's offer is not such that the rejection of this offer is a violation of antitrust law. BY MR. LOVE: Q And you believe that standard is the same as
antitrust law is similar. Q correct? A Q Yes. The Mannheim Court did not consider any So the "R" in RAND stands for reasonable;
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evidence as to whether Microsoft's offer was reasonable; 09:48:12 correct? A Q It made a high-level evaluation of the issues. But it did not take any evidence on whether
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Microsoft's offer was reasonable; correct? A That is correct, as it is not part of the this
infringement procedure. Q
rejection was acceptable because it was not an obvious antitrust violation; correct? A Q Yes. Did the Mannheim Court apply a version of the
Orange Book procedure that is more favorable to a patent 09:49:03 holder than the original Orange Book procedure? MS. BERRY: THE WITNESS: MR. LOVE: Objection; form. More favorable to the?
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THE WITNESS:
difficult to say "yes" or "no" to that because the -- in 09:49:24 the Orange Book decision, the general -- the general
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guidelines were set up, and then it's the -- the duty of 09:49:30 the lower courts to further develop it, and it's -- the Mannheim Court is fully in the range of what the German Supreme Court has said, but, of course, what these -this general street, which has been shown by the German Federal Supreme Court, has to be defined more clearly
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was too low; correct? A Q This is how I understand the decision, yes. Would you agree that Microsoft would have
needed to make a higher Orange Book offer to avoid an injunction under the Orange Book procedure? A No. They could have easily taken the other
alternative, the first alternative Orange Book procedure, and made a new offer to avoid an injunction, the offer would have had to be higher than its initial offer; correct? A Q Yes. What number would Microsoft have needed to
depends on the specifics of the -- of the case, and I'm not aware of all these specifics, and as there is the risk, as it is difficult to assess that, this is why we
have the other procedure, the 315 procedure, so I cannot 09:59:15 comment on how much money would have been necessary to have a RAND rate. I can just say, if there's
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outside my expertise.
business, and so it's not -- I'm not able to comment on this. Q I understood the conclusion of your expert
report was that Microsoft could have avoided an injunction in Germany by following the Orange Book procedure; correct? A Q That's correct. But you don't know what Motorola would have
done if Microsoft had made a higher offer under the first Orange Book procedure? A
don't agree, the two parties, then it's advisable to go the other way, to use the other road. Q Would Microsoft have been able to avoid an
at the RAND rate set by Judge Robart of less than half a 10:00:25
was 2 eurocents, so if Microsoft had offered half a eurocent, would it have been able to avoid an injunction? A If it's less than what has been given here,
it's rather unlikely. Q A Rather unlikely, or no? If it's lower than what has been -- well, the
court said -- the Mannheim Court said what has been offered is so low that the rejection is not -- is not a breach of antitrust law as it is conceivable that the rate has to be higher. So if the rate would have been lower, it is -I cannot second-guess what the court would have said,
but it's -- it's pure logic that if it's lower, I assume 10:01:23 that also the same standard would have been applied, and 10:01:25 the same standard would have taught that the rejection of such an offer is a violation of European antitrust law. Q If Microsoft had escrowed a sufficient amount
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account, if the -- the -- the patent as been made use of 10:22:57 before, so these are the elements which have been -have been decided about by the court.
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have to be included in such a License Agreement or not is pure speculation, I have no opinion on that. Q Mannheim. If Microsoft had followed the second Okay. Let's go back to what happened in
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alternative of the Orange Book procedure, Motorola would 10:23:34 have set a higher royalty than the 1 to 2 eurocents that 10:23:35 Microsoft had offered; correct? MS. BERRY: THE WITNESS: BY MR. LOVE: Q A Why would Motorola have set a lower royalty? I am not aware of -- the business evaluations, Objection; form. I have no opinion on that.
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which are behind such an offer, are not -- have not come 10:23:50 to my attention. I -- I can only speculate, but, of
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course, we can assume that. Q If Microsoft had challenged the rate set by
Motorola by bringing a separate proceeding later and the 10:24:03 court set the royalty, the royalty set by the court
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would also be higher than a -- than the 1 to 2 eurocents 10:24:10 that Microsoft had offered; correct?
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because you apply a different standard of -- there of assessing the -- the license fee, and as you hear evidence and as further circumstances will be looked upon and be considered by the court, it -- it's just a different way of assessing.
It can even be -- if the evidence is such that points in 10:24:46 this direction might even be lower. It's just a new
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story then, and it will be assessed independently, and the court will -- will find what is the adequate and -and FRAND and entered as conformed license fee. be higher. It could even be lower. It can
I -- I cannot say.
This is speculation.
the -- the standards, which are used to determine the license fee, they are the relevant thing, and they take into account the standards. This might lead to one --
to one result or to the other. BY MR. LOVE: Q When we talked earlier about the second
alternative, I thought I understood your position to be that the same standard would be used to evaluate and determine a correct license fee. that is not objectionable -A Yes. It's a license fee
going to set a royalty that is not objectionable under antitrust law; correct? A Q Yes. The Mannheim Court said that Motorola's
rejection of the 1-to-2-eurocent offer was not objectionable under antitrust law; right? A Q Can you repeat, please. Sure. Microsoft offered 1 to 2 eurocents. Motorola
rejected it, and the Mannheim Court said that rejection did not violate antitrust law. A Q Yes, that's correct. But you said just now that in a later
proceeding, if a court is setting the rate, it might set 10:26:28 a rate lower than what Microsoft offered. A It's -- it's speculation, and it also is a
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question of the German law of civil procedure and evidence. You know, in the -- in the first proceeding
the courts will also assess what has been written in the 10:26:46 briefs without taking evidence, and so they will make their -- they will form their opinion on what has been written and submitted by the parties.
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speculation, but as there is another -- different standard of how the facts are evaluated, it may even be lower, but, again, this is pure speculation. The only thing I want to say, this is a
completely new story where all facts are assessed newly, 10:27:41 and then the court will -- will find it -- will have its 10:27:46 decision -- will render its decision on the basis of the 10:27:50 facts which it has evaluated according to the law of civil procedure in this second proceeding. Q So the court, in the second proceeding, would
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apply the same standard, but it might reach a different result because it considers more evidence; is that correct? A It's just a different standard of review, a
different standard of review of the first -- the review you have in your first -- in the first -- in the first
road, that it's the -- the question whether or not it is 10:28:21 obvious. So the idea is you have a -- you look into the 10:28:26
injunction, you also have a different standard of -- of evidence, which is lower than in -- in a full proceeding. And so it's just a different way of
assessing facts and -- and hearing evidence or not hearing evidence. Q So I want to make sure I understand your
position on what would have happened under the Orange Book. So this will be sort of a long question. I'll
ask you a couple things, and just stop me if anything doesn't make sense. Under the Orange Book procedure, as I understand it, there are three paths for Microsoft to avoid an injunction by agreeing to pay a royalty.
First, Microsoft could have made an Orange Book 10:29:36 offer that Motorola accepted; correct?
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Second, Microsoft could have let Motorola set a 10:29:42 royalty; correct?
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rate that was set by Motorola, in which case a court, in 10:29:51 a separate proceeding, may set a different royalty; correct? A Q Can you repeat the question? Sure. So the -- the third path -Yes. -- would be Motorola sets a royalty.
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Microsoft 10:30:03
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part of that proceeding, the court finds that Motorola's 10:30:09 royalty is -- is too high and sets a -- sets the royalty 10:30:12 itself. A That's correct. MS. BERRY: BY MR. LOVE: Q For the first option, if Microsoft made an Objection to form.
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Orange Book offer, you don't know what Mo- -- what offer 10:30:22 Motorola would have accepted; correct? A Q Pure speculation. For the second option, you don't know what
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royalty Motorola would have set, do you? A Q Of course not, no. And on the third option, you don't know what
facts and as I didn't hear all the evidence, which would 10:30:50 come into play, of course I cannot give a -- give you a number, certainly not. Q So in November of 2012, there was a trial, as
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part of this case, to determine a RAND royalty for Motorola's patents. Are you aware of that? No. MS. BERRY: BY MR. LOVE: Q So I'll represent to you that at that trial, Objection; form.
economic experts about the appropriate RAND royalty, but 10:31:18 you haven't reviewed the transcript of that trial; correct? A Q No, I haven't reviewed it. So you don't know whether the evidence
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this case was in any way comparable to the evidence that 10:31:31 would be considered by a German court that was setting a 10:31:35 royalty? A I have no opinion on that.
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than RAND, Motorola refused to enter a license on RAND terms; correct? MS. BERRY: THE WITNESS: Objection to form. It's speculation. I don't know
for all of the patents is less than half a eurocent. Microsoft offered 2 eurocents for only two patents. Microsoft's offer was higher than RAND. that for my question. If that's true, Motorola refused to enter a license on RAND terms; correct? MS. BERRY: hypothetical. THE WITNESS: It depends -- it's -- it depends Objection; form, incomplete Let's assume So
on all further -- on the further -- further circumstance 10:53:16 of the case. I don't know the specifics of the case.
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I'm not able to -- to assess the business evaluations behind this, so I can't just not comment on that. BY MR. LOVE: Q Why are business evaluations relevant to my
don't know the specific business interests of -- of Motorola and of Microsoft, the strategic ideas, how to make use of the technology. I just don't have enough
patent holder can refuse to enter a license on RAND terms because it has other business interests? A No, but the -- in order to find what RAND is,
you have to look into all specifics of the case, including the special interests of the parties in this -- in this case, and, of course, license fee is a very important issue, no -- no doubt about that, but there may be other surroundings. There may be other
interests which may -- may alter the -- the assessment of interest. Q Let's presume for the purposes of my question
that everything you just mentioned was already addressed 10:54:27 in this case in a trial in November 2012 that determined 10:54:29 the RAND royalty. Can you assume that that's correct? For the
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purposes of my next question, can you assume that all those business interests that you just mentioned were already tried in this case and that the judge has
answered, outside the scope of his expert report. THE WITNESS: We -- I can only apply German
law, and the findings of Justice Robart are -- are certainly not binding for the German court, and the German court will make -- will have to make its own evaluation, considering all the facts according to German law of civil procedure, and so it may be; it may not be, but I don't know what will come out, so it's just very speculative. that. I cannot give you a answer to
I have no opinion.
and a RAND royalty in Germany are two different things; is that correct? A Not necessarily, but it's -- the German patent
procedure is completely independent and has its different law of civil procedure, and all facts will be assessed by the German courts, and, of course, German
judges will look what the American judges have done, but 10:55:55
law, the European Commission has initiated proceedings against Motorola based on its assertion of standard essential patents against Apple? A have -Q And the European Commission has also initiated I'm not familiar with the details, but I
proceedings against Samsung for its assertions of standard essential patents? A I have -Sorry. I'm aware of the Samsung proceedings.
(Exhibit 2 was marked for identification by the 10:56:50 Court Reporter.) MR. LOVE: as Exhibit 2. I'm handing you what's been marked
10:56:50 10:56:58 10:56:59 10:57:09 10:57:14 10:57:15
release that's dated December 21st, 2012. Q A Have you seen this document before? Yes. MS. BERRY: Counsel, have you produced this
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that only a person which is really willing to negotiate, 11:07:29 which is sincere, is -- can -- can avoid an injunction. Only a mere willingness to negotiate is not -- is not sufficient. Q The European Commission's view in the document
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we just read is a patent holder cannot seek injunctive relief against a willing RAND licensee; correct? A Q A Q Yes. Microsoft made an offer to Motorola; correct? Yes. The Mannheim Court applied a version of the
Orange Book procedure where Motorola could reject Microsoft's offer -A Q Yes. -- unless the rejection would be an obvious
out by the European Commission's preliminary view? MS. BERRY: THE WITNESS: Objection; form. The Commission's view that the
acceptance of binding third-party determination for the terms of a FRAND license in the event that bilateral
indication -- I don't see that the -- that Microsoft has 11:08:47 surrendered to a binding third-party determination because it didn't use a second road. 315 road. BY MR. LOVE: Q Were you aware that, at least as of September It didn't use the
11:09:03 11:09:06 11:09:10 11:09:11 11:09:11 11:09:15 11:09:17 11:09:20
2011, Microsoft declared that it was willing to enter into a license on RAND terms for Motorola's H.264 patents? A lawsuit. Q I'm familiar with the basics of the -- of this
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and Motorola that Microsoft was seeking and was ready and willing to take a license to Motorola's H.264 patents on RAND terms? A Q Yes. And you understand that, in this case,
Microsoft seeks a judicial determination of a royalty rate for Motorola's H.264 patents? MS. BERRY: THE WITNESS: Objection; form. I don't see there is Microsoft
seeks a judicial determination, but Microsoft proposed a 11:09:53 certain license fee which was declined by Motorola, and
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then the court made a review, and Microsoft just did not 11:10:02
(Exhibit 5 was marked for identification by the 11:10:18 Court Reporter.) MR. LOVE: Let's take a look at another
11:10:18 11:10:19 11:10:21 11:10:23 11:10:30 11:10:32 11:10:42
complaint in this case. Q Could you turn to paragraph 9, which you will Paragraph 9 begins
letter i there, and I'm going to go to the ii, Roman ii, 11:10:43 "a judicial declaration" -- I apologize. I intend to go 11:10:46
to Roman iii, "a judicial accounting of what constitutes 11:10:52 a royalty rate in all respects" -- let me turn the page -- "consistent with Motorola's promises for WLAN patents identified as 'essential' by Motorola and for H.264 patents identified by Motorola." Do you see that? Yes.
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and the trial in November 2012, I will represent to you, 11:11:15 determined such a royalty rate. So Motorola's -- sorry. Microsoft's
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Motorola knew Microsoft was willing to enter into a license on RAND terms that would be determined by the U.S. court; correct? A Yeah. MS. BERRY: of his expert report. BY MR. LOVE: Q Motorola continued to pursue an injunction in Objection; form, outside the scope
Germany after September 2011; correct? A Q Yes. So Motorola was abusing its dominant position
by pursuing an injunction against Microsoft; correct? MS. BERRY: THE WITNESS: Objection; form. Yes. A preliminary? Please
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the meaning of European antitrust law, by pursuing an injunction against Microsoft; correct? MS. BERRY: THE WITNESS: Objection; form. I don't agree.
an assessment only by a administrative agency or a court 11:12:48 within the European Union, which is also subject to EU law, would suffice in order to -- to meet the requirements of -- of this -- of this commission statement as -- or the -- as the supremacy of European law, and I would not -- I would doubt that authorities, no matter how respect -- how well respected they are, which are beyond the reach of European Union law, could -- could meet the preconditions which have been set up. BY MR. LOVE: Q Do you think the court in Seattle is not
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it's not bound by the European Union law, and I -- I'm not sure. I would -- I would have to go further into I'm not sure whether an authority
details, of course.
outside the use scope -- outside the reach of European Union law would be found to be sufficient under this declaration. But, again, this is speculation. I see
Microsoft and Motorola concerning whether Motorola would 11:44:50 agree not to enforce the German injunction? A Q No.
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agree not to enforce the German injunction and allow the 11:45:06 proceedings in this case here in Seattle to go forward? MS. BERRY: THE WITNESS: Objection; form. I have very general knowledge of
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agree to -- to stay enforcement of the German injunction? MS. BERRY: THE WITNESS: Objection; form.
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but I have no further detailed knowledge of all these -- 11:45:41 these proceedings. BY MR. LOVE: Q Did you ask Motorola's counsel or anyone at
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an injunction because Motorola might not enforce the judgment; correct? A Q Say it again. Your report suggests that Microsoft might have
avoided an injunction because Motorola would not enforce 11:46:18 it; correct? A
11:46:21
said is that it's not automatically -- the junction is not automatically enforced but that there have to be further steps being taken. Q Did you ask anyone at Motorola if Motorola
planned to take those steps? MS. BERRY: Objection; calls for Instruct the witness
for a preliminary injunction here in Seattle, would Motorola have enforced its German injunction? A I don't know. MS. BERRY: THE WITNESS: about that. BY MR. LOVE: Q Did you ask anyone at Motorola? MS. BERRY: Same objections as before. Objection; form. That's pure -- I no information
Instruct the witness not to answer. BY MR. LOVE: Q A Q Will you follow your counsel's advice? Yes. If the Ninth Circuit had reversed
Judge Robart's preliminary injunction, would Motorola have enforced the injunction in Mannheim? MS. BERRY: Objection; form, calls for
speculation, outside the scope of his expert report. BY MR. LOVE: Q Did you ask anyone at Motorola, if the
Ninth Circuit had reversed, did they plan to enforce the 11:47:31 injunction? MS. BERRY: Objection; calls for Instruct the witness
11:47:34 11:47:35 11:47:36
attorney-client communications.
that enforcing injunctions on standard essential patents 11:47:46 against a willing licensee is an abuse of antitrust law; 11:47:49 is that correct? MS. BERRY: THE WITNESS: MR. LOVE: Objection; form. Please repeat.
11:47:54 11:47:54 11:47:54 11:47:56 11:47:56
Sure.
that enforcing injunctions on standard essential patents 11:48:00 against a willing licensee is an abuse of antitrust law; 11:48:02 correct? A Q These are the wordings used, yes. Would you agree that Judge Robart in the
11:48:06 11:48:06 11:48:08 11:48:11 11:48:16 11:48:17 11:48:19
Ninth Circuit helped Motorola avoid exposing itself to additional antitrust liability? MS. BERRY: Objection to form, outside the
Microsoft's decision to relocate its German facility? A Q the move? A Q No. Did you review the deposition transcripts of No. Did you review any documents associated with
and had begun implementing the relocation out of Germany 11:48:59 in March of 2012? A Q No. If Motorola had enforced the injunction in
11:49:03 11:49:04 11:49:05 11:49:10 11:49:14 11:49:17 11:49:22 11:49:23
Mannheim, could Microsoft have continued to distribute H.264-compliant products in Germany? A If they fall under the patent and if there has
concerning the recovery of fees and costs? A Q A Q Attorney fees and costs? Yes. Yes. Have you published any articles regarding the
recovery of attorneys' fees and costs? A Q No. Have you published any articles on the German
act on the remuneration of lawyers? A Q No. You reference Section 91 of the ZPO in your
rebuttal report. Is the ZPO the German Code of Civil Procedure? Yes. Have you ever published any articles on the
German Code of Civil Procedure? A Q A Yes. And what articles are those? Articles about patent -- patent infringement
those articles touch on the aspects of the German Code of Civil Procedure? A Q Right. Okay. Exhibit D to your rebuttal report shows
11:51:52 11:51:57 11:52:01 11:52:02 11:52:02 11:52:05 11:52:05 11:52:08 11:52:10 11:52:10 11:52:12 11:52:13 11:52:15 11:52:16 11:52:22 11:52:23 11:52:28 11:52:30 11:52:34
screen shots from software that's called ProzessKostenRechner; is that correct? A Q A Q Yes. Was I close on the pronunciation? Very good. This is software that is used to calculate
statutory attorney fees in Germany; is that correct? A Q A Q Yes. Have you used the software before? Yes. So before your work -- prior to the work in
your case, you have used the software? A Q A I tried it once. I never --
When did you try it? Couple of -- before when I was assessing
attorneys' fees in another case. Q did that? A Q No. No, no. Were you serving as an expert witness when you
11:52:34 11:52:34
using the software previously? A Because, privately, I helped people who wanted
to have an attorney, and I was given the information about the costs which they would run into. Q But other than that one instance, had you ever
used the software prior to your work in this case? A Q No. Is it your opinion that the attorneys' fees Start again.
Germany -- sorry.
Is it your opinion that the attorneys' fees in Germany that Microsoft is seeking to recover are far in excess of what could be recovered under Germany's statutory fee scheme? A Q Yes. And that's because the statute provides a cap
on how much can be recovered; correct? A Q A Yes. So even if a party wins -Maybe not a cap. I have to correct. Not a
cap, but a special -- there's a special procedure how the costs are assessed as to cap, but the costs are calculated. Q And the process for calculating the costs in
party will not necessarily recover all the fees it paid; 11:53:49 correct? MS. BERRY: THE WITNESS: specifics of the case. BY MR. LOVE: Q Objection; form. It's very much dependent on the
11:53:52 11:53:52 11:53:53 11:53:56 11:53:57
to the Fresh Fields firm is about 2.119 million. Does that sound correct? Yes. Is that amount typical for a patent case like
the Mannheim actions? MS. BERRY: of his expert report. THE WITNESS: ask the question again. MR. LOVE: Sure. Objection; form, outside the scope
11:54:11 11:54:13
that amount typical for a patent case like the Mannheim actions?
give you a clear -- I cannot say a statistical -- if it's typical or not. Q It just depends on the cases.
that amount strike you as unusual? MS. BERRY: THE WITNESS: Objection to form.
I don't work as an attorney, so I don't see the bills all the time. BY MR. LOVE: Q Well, your report says this amount was far in
excess of what could be recovered under the scheme. A Q or not? MS. BERRY: THE WITNESS: Objection; form. I answered the question, that Yes.
it's the -- the scheme sets up a certain rate, and it -- 11:55:06 I don't know what -- what exactly law firms charge when
11:55:11
they go -- when they charge on hourly basis, so I cannot 11:55:17 give you any further information on that. BY MR. LOVE: Q So you're offering expert testimony on the
11:55:23 11:55:24 11:55:24 11:55:28
actually charged in cases like this? A There are no typical fees for typical cases.
I 11:55:35
can only say what the statutory rates are, and then when 11:55:38 it's about hourly rates -- hourly rates, these -- this is very different frequently. Q So when you say that Microsoft's fees are far
11:55:42 11:55:46 11:55:47 11:55:50 11:55:52 11:55:55 11:55:56 11:55:56 11:56:00 11:56:04 11:56:04 11:56:04 11:56:06 11:56:09 11:56:11 11:56:13
in excess of what could be recovered, you don't know if that's unusual or not, do you? MS. BERRY: Objection to form; asked and
the statutory fee, and I know that this is beyond this -BY MR. LOVE: Q A Q Well, why did you say "far in excess"? Because the statutory fee is lower. So you could have said that the fee is in
paid more than twice as much as Microsoft? MS. BERRY: THE WITNESS: BY MR. LOVE: Q If I told you that Motorola spent more than Objection; form. It's very speculative.
twice as much on attorneys' fees in the Mannheim cases, would you find that surprising?
calculation which determines the statutory fee that Microsoft could recover if it prevailed in Mannheim; correct? A Q That's correct. Would that calc- -- and that calculation is
based on the value of the cases; is that correct? A Q That's correct. So assuming that Motorola prevails under the
German scheme, Motorola can recover fees from Microsoft; 11:57:22 correct? A Q Yes.
11:57:25 11:57:25
in your expert report? A Q A Q Yes. So it would be the same for either party? Yes. Do you have an understanding of why the German
law concerning the recovery of attorneys' fees is relevant to the upcoming trial in this case? MS. BERRY: Objection; form.
discussion? MS. BERRY: Objection to form, calls for I instruct the witness
11:58:07 11:58:08 11:58:16 11:58:18 11:58:20 11:58:21 11:58:24 11:58:29 11:58:32 11:58:35 11:58:37
attorney-client communications.
not to answer to the extent your answer would involve the communications with your attorneys. THE WITNESS: BY MR. LOVE: Q If Motorola is correct that it's two German Then I'm not going to answer.
patents are actually essential to the H.264 standard, would you expect that they would prevail in any infringement case against an implementer of the standard? A Always depends on the -- on the circumstances
11:58:41
of the case.
If the person makes unauthorized use, then 11:58:44 Just depends on the facts, but -11:58:50 11:58:50 11:58:53 11:58:55 11:58:57
you prevail in the patent infringement lawsuit and when you lose.