Just a few additional comments: (I begin with excepts from SS's excellent report followed by my observations)

1) Mihran was asked about the Schroder patent cited in the 774 as prior art. Asked if he read the definition of flash memory in the Microsoft (MSFT) Dictionary. Answered yes. Asked if he read other definitions in the MSFT dictionary. Answered yes. Yungwirth objected (don’t remember why) but the judge OVERRULED him. If I wrote it down correctly, Mihran was basically saying Norris got around the MSFT definition of flash memory by saying, “Flash memory is main memory”. Hopefully Profundo can help me out here.

Regarding the paragraph above from SS report, I am in agreement with SS on this. The defense was trying to say that Norris got around the Schroder patent by saying that Flash memory is the main memory. (I don’t actually know if this is true because I have not read the prosecution history of the 774 patent.) The interesting thing to note (if I understand correctly) is that the MS dictionary claimed that flash memory was unsuitable as main memory because of certain limitations in the way it could be written. As I understand it, the 774 patent overcame the limitations in the novel way in which data was written to flash memory. IMO, the bottom line is that our patented invention changed the way in which flash memory could be used in a system.

2) Featherstone asked about claim construction 2 and how it relates to defenses’ claim construction definition. Yungwirth objected to Mihran testifying about defendants claim construction proposal. Was busy writing and didn’t hear judge’s ruling. Profundo???

Unfortunately, I can’t add any clarity to this:

3) Yungwirth said that attached to Norris’ declaration was a schematic of a Flashback and [picture] of a circuit board. Asked Mihran if he considered these items in his review. Answered yes. Yungwirth next asked Mihran if he thinks the Flashback contains DRAM (dynamic random access memory). Mihran actually answered yes! I think this is huge for us because the intrinsic evidence shows clearly that the Flashback is the embodiment of the 774 patent.

My memory actually differs just slightly on this. As I understood Mihran’s testimony, he DID consider the schematic of the patented device but he had NOT ever seen the picture of the inside of the Flashback prior to the markman hearing which CLEARY showed that DRAM was being used in the product. I DO agree that Mihran admitted that picture of the inside of the Flashback device shows that it definitely uses DRAM and he could tell that by the “number” on the DRAM. He clearly admitted that the Flashback device contains DRAM

4) PAGE 10: Mr. Cohen started closing arguments around 4:27 and ended at 4:34pm. I have to say, he wasn’t as effective as Jameson IMO. Can’t even remember what he said. Profundo???

I also agree that Mr. Cohen was not nearly as effective as Mr. Jameson. In fact, it was hard for me to follow the thread of what he was saying. I know he brought up the whole MS dictionary definition and that e.digital had found a way to actually use flash memory in as main memory. I suspect he wanted to re-enforce the idea that edigital had claimed that flash memory was the “main memory” in order to qualify for the patent. (Which may somehow support the defense’s theory.) I must admit that I was baffled by this argument. To me it just reinforced the novel nature of the patent. (Again, I have not read the prosecution history of the patent which is probably where the defense’s arguments lie.)

4) The judge said something like, “OK, if these two claims are ruled as dispositive to the case, I won’t rule on the other claims.” I didn’t like that but there was no objection by the Plaintiff; I guess they agreed if these two claims go against them, the infringement case is all but over. Not sure about this. Profundo…what do you remember and what’s your opinion?

To put this moment in context…it was late in the day and 25 or so high priced attorneys had planes to catch and wanted to be done for the day. I also don’t think they relished the thought of keeping the judge in the courtroom past 5:00 pm. As I remember it, the defense attorney said that the first two claims would be dispositive to the case. So, if the judge ruled in favor of the defense on these 2 important claims then he (the defense attorney) felt the rulings on the remaining claims would be unnecessary. It was my understanding that if the judge ruled against edig on the first two claims then the case was all but over. If the judge ruled against the defendants on the first two claims then they would still like a ruling on the remaining claims. I will freely admit that I may have this backwards but the bottom line is that (IMO) the way the judge ruled on the first two claims would be indicative of the way the rest of the case would fall. At the time I was also disappointed that there was no objection from edig. However, in the context of the moment I can see why our attorneys were hesitant to prolong the proceedings.

Please take my comments for what they worth...just my humble opinion and nothing more.

Profundo