Trial Day 3 – Witnesses and Trial Observations

The long-awaited trial continues, and today included the last two live VLSI witnesses. The first was VLSI’s expert witness Dr. Murali Annavaram. Dr. Annavaram’s testimony was designed to present the technical benefits alleged to be delivered by the technologies of the two patents at issue. Most of his testimony involved discussing the two patents and the problems each were designed to resolve. He also covered his testing methodology, which involved the use of proprietary Intel software models.

On cross, Intel focused on two main points. First, Intel pointed out that Dr. Annavaram never interacted with anyone from NXP or Intel, with an eye toward differentiating VSLI as a non-innovator. Second, and I believe the major focus of the cross examination, was Intel’s allegation that Dr. Annavaram’s power-cycling method didn’t actually use the microprocessors alleged to infringe the ‘373 patent. As you would expect, Intel alleged his testing was unreliable because he didn’t use the correct microprocessors that are found in Intel’s products. Dr. Annavaram’s testimony wrapped up by around 11AM.

The second witness VLSI called was Dr. Ryan Sullivan, the Plaintiff’s damages expert. Dr. Sullivan’s testimony, both direct and cross, occupied the greater portion of the day, ending just before 5PM. One of the more notable aspects of Wednesday’s proceedings was that Dr. Sullivan’s testimony was delivered entirely (or almost entirely—between us, Joe and I listened to most but not 100% of the trial day) in open court, not under seal. So, to account for the sensitive nature of the presumably very large damages number being sought by VLSI, the figure was displayed on Dr. Sullivan’s trial demonstratives, which in turn were shown only to counsel, the Court, and the jury—but not to the public. Neither party’s counsel nor the witness actually spoke the number out loud.

There was an earlier dispute, apparently related to whether VLSI was presenting its damages demand as a running royalty or a lump sum, that was resolved following the lunch recess. Judge Albright ruled, over Intel’s vigorous objection, that Dr. Sullivan could present his damages number on a per-unit basis. The Court’s resolution turned on the exact nature of the disclosures in Dr. Sullivan’s confidential expert report.

After Dr. Sullivan’s testimony concluded, VLSI confirmed before court adjourned that on Thursday morning it would play some deposition excerpts and read some written discovery responses into the record, and then rest. Judge Albright informed the parties that he intended to conduct his jury charge conference Friday afternoon, thus indicating that trial will roll into at least early next week.

If you’re looking for another perspective on today’s proceedings, you may enjoy, from Matthew Bultman of Bloomberg News, this look at one of the several “real world” analogies that each  VLSI and Intel deployed to bring their witnesses’ testimony down to earth: Lawyer, Expert Swap Tom Brady Analogies in Intel Patent Trial.

Trial Observations

After watching trial for the past few days, I noticed a few commonalities that might be helpful for lawyers trying a case in front of Judge Albright.

  • Judge Albright (as you would imagine) expects lawyers to allow a witness to finishing answer a question completely before asking another question. In other words – do not talk over a witness while they are still speaking.
  • Along the same lines, Judge Albright is very courteous to witnesses – but not a pushover. In particular, he requires the witness to answer yes or no on cross – and only yes or no, if that’s what the question calls for. He is strict on this requirement, but it takes more than one violation for him to address this issue.
  • Impeachment – another area where Judge Albright is by the book. Before an attorney can impeach a witness, the witness must actually testify in such a way that is inconsistent with his or her deposition testimony, and not in a trivial way.
  • Judge Albright also does not end witness testimony abruptly. What I mean is this: if the end of the day is near, and a party has another witness to call, but cannot get through the testimony before a reasonable cutoff time, Judge Albright will likely push the witness till the next day. One exception: he has stated he will allow more perfunctory portions of testimony to be completed (i.e., an expert’s qualifications) and the remainder of the testimony completed after the break.