MR. JAMESON: Your Honor, here is -- here is the
issue. I presume the goal is to have a Markman hearing on
as many claims that are at issue as possible, as opposed to
us learning about something during general discovery that
would lead to the need to assert additional claims in the
case and then go through the Markman process again down the
road. And that was actually -- that was actually recognized
in defendant’s argument when putting forth his proposal –-
and I believe it was at page -–
THE COURT: Okay, go ahead.
MR. JAMESON: -- and it’s been struck, but it was
at page 13 of their argument they stated that this approach
will -- provides a manageable and defined number of products
for the court and parties to litigate in this case, at least
in a substantial first round, to determine if the claims as
construed by this court cover them. So they recognize that
the road that we’re going down, we may very well learn
additional information during discovery, general discovery,
that could lead to the right to assert additional claims in
this case.
And I will put my cards on the table. Claim 4 of
the 737 patent is a claim that we believe many of these
defendants may well infringe --
THE COURT: Okay.
MR. JAMESON: -- but we can’t get to the bottom of
that because of proprietary technical information that we
need to discover to fully understand how that -- how those
products operate. And so we’re in a dilemma. We can assert
claim 4 now, and then we can learn about that during
discovery. We may find that, well, now that we get down
into the software and how things are actually -- how the
audio is actually written to this memory and flash, you’re
right, you don’t infringe. Or we may find, yeah, we think
you do infringe, and so that’s just one issue that I’m
putting on the table –-
THE COURT: Sure.