Trial(s) Update: ESW-Roku & VLSI-Intel II

As much as we’d love to bring you wall-to-wall coverage of every trial in front of Judge Albright, this latest calendar is getting a bit jammed. So in this post we’re just going to try to hit the highlights of both this past week’s ESW-Roku trial, and next week’s (presumably) forthcoming VLSI-Intel II trial.


This week’s ESW-Roku trial was conducted quickly and efficiently by both sides. Even after Tuesday’s “sick day,” ESW concluded its case on trial Day #2 (i.e., Wednesday), and Roku concluded its case by end of trial Day #3 (i.e., yesterday). This morning brought a very brief rebuttal case from ESW, limited solely to recalling ESW’s technical expert Dr. Shamos (we think—we missed the first few minutes). Judge Albright then charged the jury, and the parties concluded summations by lunchtime today, with deliberations commencing immediately thereafter, and ongoing as of now, as best as we can tell. We’ll do our best to share the jury’s verdict as soon as they return.

We’re not going to try to summarize everything that’s happened at trial, but some anecdotes that we think might be of interest to litigators follow below. As always, what we relate is based on best possible contemporaneous notes, but we defer to the final transcript in all respects.

  • Remote Testimony: We think this trial involved the most (successful) presentations of witnesses via Zoom that we’ve seen thus far. Both ESW’s technical expert and Roku’s first fact witness testified remotely, without substantial interruption that we observed. But note that even when a witness is testifying by Zoom, Judge Albright will still, as appropriate, direct the witness to answer the question as asked by the cross-examining attorney, and save gratuitous rebuttal statements for presenting counsel’s subsequent redirect examination.
  • Sealing: From what we can tell, the parties did not elect to seal much (or any?) infringement-related testimony in this case, but much of the damages case was sealed.
  • Exhibits: Judge Albright specifically praised the parties for having done “a great job with the exhibits, which has been rare, in my experience.” So note that the Court (and chambers staff, too) will definitely appreciate litigants who have a well-organized approach to agreeing what exhibits are part of the record.
  • Order of Proof: Judge Albright overruled Roku’s objection that ESW intended to have their technical expert Dr. Shamos rely on deposition testimony that was not yet before the jury, but on the assumption that the evidence would, in fact, still come in. (“I’m going to let them try their case in the order they want.”)
  • Advance Demonstrative/etc. Objections: As compared to our observations during the prior two trials, Judge Albright seems to be getting slightly less tolerant of drawn-out objections before a witness testifies. He reiterated his perspective—also shared in the context of other MIL arguments—that advance objections are for issues that are “so prejudicial that the jury can’t see it even once.” Outside that context, Judge Albright expressed a distinct preference for “the old-fashioned way” of contemporaneous objections during testimony.
    • As one particular flavor, the Judge didn’t want to address objections about an expert testifying outside the scope of his report in advance, but to be raised contemporaneously. And he specifically noted that “I’m going to expect the party that’s proffering the evidence to show me immediately where it is in the report.”
  • Claim Construction: We saw Judge Albright (outside the presence of the jury, of course) express as much concern as we’ve ever seen about a witness’s testimony when Roku’s technical expert apparently testified that he had applied different claim interpretations for purposes of non-infringement vs. invalidity analyses. The Court specifically noted to Roku’s counsel that “You’re not going to talk to this gentleman again” during the ensuing break. As it happened, immediately upon retaking the stand the expert volunteered that he needed to update an earlier statement. The Court said that was to occur during redirect, and Roku’s counsel duly elicited some clarifying testimony. But this issue was highlighted during ESW’s rebuttal case and summation (and perhaps may reappear thereafter?).
  • Deposition Impeachment: We’ve noted this repeatedly, but again: Judge Albright does not allow incorporation of deposition testimony in cross-examining a live witness until after that witness has given an answer that actually departs from earlier testimony. At that point s/he can then be impeached with the prior inconsistent statement. Until then, as the Court succinctly put it here, “the deposition doesn’t exist.”
  • FRCP 50(a) JMOL Motions: There was slightly more action on Roku’s initial JMOL motions than often occurs. First, Judge Albright requested that Roku put in its oral motions “quickly”—so for future reference to litigators appearing, when it’s your turn, don’t share all your reasons; just concisely state the relief you want. The Court ultimately granted one JMOL motion, where ESW’s infringement expert had explicitly stated on the stand that he was not presenting an infringement case based on doctrine of equivalents. The Court also asked the parties to make brief follow-up written submissions on the issue of Section 287 marking, with those submissions to be limited to evidence allegedly presented by ESW on that issue, or the absence thereof. The Court on Thursday morning denied the motion, ruling that ESW had put in sufficient evidence through one of its witnesses to send the issue to the jury to decide.
  • Rebuttal Case: The brief rebuttal proceedings this morning were shortened even further because Judge Albright insisted that the rebuttal cross-examination of Dr. Shamos be conducted by the same counsel who had conducted cross on his initial direct exam—and that attorney was apparently unavailable for Roku at the appropriate time. (We speculate this was due to preparation for summations, but we can’t say for sure.)

VLSI-Intel II:

The Court used the schedule gap created by the ESW-Roku “sick day” to convene the final pretrial conference in VLSI-Intel II. Based on the portion we were able to observe, many of the motions in limine that the Court took up unsurprisingly dealt with the way in which VLSI-Intel II should conform to or depart from the trial process in VLSI-Intel I. The Court’s MIL rulings are yet to hit the docket, but we’ll take a look when they do, and bring you anything interesting.

We also briefly mentioned on Monday of this week that Intel had filed a motion to re-re-transfer the case from Waco back to Austin, in light of alleged prejudice to the Waco jury pool caused by media coverage of the $2B VLSI-Intel I verdict. Briefing on the motion closed Wednesday, and the Court has not yet ruled as of this writing, as far as we are aware. But voir dire proceeded yesterday before Judge Manske on schedule, so we’re assuming that denial is likely, and that all is a go for this coming Monday.

Finally, the Court has again posted its Notice of Trial Procedures. The COVID-related access protocols again look quite similar. Of (presumably) most note to readers of the blog is that the trial will again be broadcast by Zoom audio feed—aside from those portions that the parties request to be under seal based on confidential business information, of course. The Zoom credentials are:

  • +1 669 254 5252
    • Webinar ID: 161 923 7157
    • Passcode: 103154
  • Mobile-friendly: 
    • +16692545252,,1619237157#,,,,*103154#

(Note that these credentials are not the same as in the published procedures; they were distributed via Judge Albright’s Working Group.)

We’ll look forward to whatever excitement next week may bring…

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The blog again thanks Tim Dewberry of Pillsbury for his assistance, this time in mulling over the high points of this past week’s ESW-Roku trial.