Midas Green Technologies, LLC v. Rhodium Enterprises, Inc. — Entry #187: Transcript filed of Proceedings held on 4-9-24, Proceedings Transcribed: Pretrial Conference
Case: Midas Green Technologies, LLC v. Rhodium Enterprises, Inc. txwd · 6:22-cv-00050
filed January 13, 2022
What this document is
Docket entry #187 · filed April 11, 2024
Transcript filed of Proceedings held on 4-9-24, Proceedings Transcribed: Pretrial Conference. Court Reporter/Transcriber: Kristie Davis ([email protected]), Telephone number: 12546660904. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/2/2024, Redacted Transcript Deadline set for 5/13/2024, Release of Transcript Restriction set for 7/10/2024, (kd) (Entered: 04/11/2024)
Who is involved
- Air HPC LLC
- Cameron Blackmon
- Chase Blackmon
- i Ventures Enterprises LLC
- Jordan HPC LLC
- Jordan HPC Sub LLC
- Midas Green Technologies, LLC
- Nathan Nichols
- Rhodium 10mw LLC
- Rhodium 10MW Sub LLC
- Rhodium 2.0 LLC
- Rhodium 2.0 Sub LLC
- Rhodium 30mw LLC
- Rhodium 30MW Sub LLC
- Rhodium Encore LLC
- Rhodium Encore Sub LLC
- Rhodium Enterprises, Inc.
- Rhodium Industries LLC
- Rhodium JV LLC
- Rhodium Ready Ventures LLC
- Rhodium Renewables LLC
- Rhodium Renewables Sub LLC
- Rhodium Shared Services LLC
- Rhodium Shared Services PR Inc.
- Rhodium Technologies, LLC
Why we have it
We follow this case because it names a company we track, although that company is not a party:
- Marathon Digital: its name “Marathon Digital Holdings, Inc.” appears in a filing in this case.
…Mining Corp.; • Marathon Digital Holdings, Inc.;…
- Hut 8: its former name “Hut 8 Mining Corp.” appears in a filing in this case.
…Technologies Inc.; • Hut 8 Mining Corp.; • Marathon Digital…
A free copy from the RECAP archive of federal court filings (mirrored at the Internet Archive), retrieved October 06, 2026. Federal court filings are public records.
Document text
56 page(s), 111,025 characters, converted from the PDF's text layer · plain text.
Full text
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 1 of 56
1
1 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
2 WACO DIVISION
3 MIDAS GREEN TECHNOLOGIES,
LLC *
4 * April 9, 2024
VS. *
5 * CIVIL ACTION NO. 6:22-CV-50
RHODIUM ENTERPRISES, *
6 INC., ET AL. *
7 BEFORE THE HONORABLE ALAN D ALBRIGHT
PRETRIAL HEARING (via Zoom)
8
APPEARANCES:
9
For the Plaintiff: William J. Kolegraff, Esq.
10 Joseph E. Thomas, Esq.
Grant J. Thomas, Esq.
11 Thomas Whitelaw & Kolegraff LLP
18101 Von Karman Ave., Suite 230
12 Irvine, CA 92612
13 For the Defendant: Elizabeth Rogers Brannen, Esq.
Peter Jacob Brody, Esq.
14 Sarah Rahimi, Esq.
Stris & Maher LLP
15 777 South Figueroa Street, Ste 3850
Los Angeles, CA 90017
16
Melissa Richards Smith, Esq.
17 Gillam and Smith, LLP
303 South Washington Avenue
18 Marshall, TX 75670
19 James Travis Underwood, Esq.
Gillam & Smith
20 102 N. College, Suite 800
Tyler, TX 75702
21
Court Reporter: Kristie M. Davis, CRR, RMR
22 PO Box 20994
Waco, Texas 76702-0994
23 (254) 340-6114
24 Proceedings recorded by mechanical stenography,
25 transcript produced by computer-aided transcription.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 2 of 56
2
09:33 1 (Hearing begins.)
09:33 2 DEPUTY CLERK: A civil action in Case
09:33 3 6:22-CV-50, Midas Green Technologies, LLC versus
09:33 4 Rhodium Enterprises, Incorporated, et al. Case called
09:33 5 for a pretrial conference.
09:33 6 THE COURT: If I could have announcements
09:33 7 from counsel, please.
09:33 8 MR. SMITH: Your Honor, for plaintiff
09:33 9 Midas Green, Michael Smith. And with me today are
09:33 10 Mr. Joe Thomas, Mr. Bill Kolegraff, and Mr. Grant
09:33 11 Thomas; and we're ready to proceed.
09:33 12 MR. UNDERWOOD: Good morning, Your Honor.
09:33 13 Travis Underwood on behalf of the Rhodium defendants.
09:33 14 With me is my law partner Melissa Smith. We also have
09:33 15 from the Stris & Maher firm our lead counsel, Liz
09:33 16 Brannen, along with two other members from her firm,
09:33 17 Peter Brody and Sarah Rahimi; and we're ready to
09:33 18 proceed.
09:34 19 THE COURT: With this group, I feel like
09:34 20 I'm an honorary Eastern District of Texas judge. What
09:34 21 an honor. If I could have only been picked to serve
09:34 22 there.
09:34 23 I will take up first the motion to
09:34 24 correct inventorship. And I'll hear argument on that,
09:34 25 please.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 3 of 56
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09:34 1 Mr. Thomas, I think that's you, or
09:34 2 Mr. Kolegraff. Okay.
09:34 3 MR. KOLEGRAFF: Good morning. This is
09:34 4 William Kolegraff.
09:34 5 THE COURT: Good morning to you, sir.
09:34 6 MR. KOLEGRAFF: Yes. So this patent was
09:34 7 originally issued with seven named inventors. However,
09:34 8 during the process of preparing for this case for
09:34 9 trial, we discovered that six of the inventors should
09:34 10 not have been named. We provided a correction of
09:35 11 inventorship document, which was sent to the Patent and
09:35 12 Trademark Office about a year ago. We're still waiting
09:35 13 to hear back from them.
09:35 14 So what we did is, in an abundance of
09:35 15 caution, just in case we don't get this resolved by the
09:35 16 PTO by the time trial starts, we've asked the Court to
09:35 17 order the director of the office to correct the
09:35 18 inventorship. So right here, we believe we've met our
09:35 19 burden for clear and convincing evidence. Every one of
09:35 20 the --
09:35 21 THE COURT: Does that mean I get to tell
09:35 22 Kathi Vidal what to do, or is it someone else?
09:35 23 MR. KOLEGRAFF: Yes. You do. I could
09:35 24 help draft that order for you.
09:35 25 (Laughter.)
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 4 of 56
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09:35 1 MR. KOLEGRAFF: But we do believe we've
09:35 2 met the burden for clear and convincing evidence.
09:35 3 First of all, the package that we have duplicated for
09:35 4 you in the filing is the exact package that we
09:35 5 submitted to the Patent and Trademark Office, which
09:35 6 meets all the statutory requirements. All the six
09:35 7 inventors that are being removed have signed
09:35 8 declarations that they agree that they should be
09:35 9 removed from the patent.
09:35 10 The remaining inventor, Christopher Boyd,
09:36 11 has agreed that he is the sole inventor. And Midas
09:36 12 Technology, the assignee of all the rights in interest
09:36 13 in the patent, has also agreed to this change. So we
09:36 14 don't see any reason why this can't be allowed because
09:36 15 there's clear and convincing evidence to remove these
09:36 16 inventors.
09:36 17 Now, Rhodium does try to muddy the water
09:36 18 and they bring up the names of two other people that
09:36 19 they say may be inventors, Rainone and Christian Best.
09:36 20 That really is irrelevant to this particular motion.
09:36 21 This motion is merely to remove six named
09:36 22 inventors that were wrongly named on the patent, and if
09:36 23 they believe others should be added, then they can take
09:36 24 that up at a separate -- separate matter. And just as
09:36 25 a point of interest, they don't have any standing to do
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 5 of 56
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09:36 1 this anyway because they don't represent Rainone or
09:36 2 Christian Best, as far as we know.
09:36 3 THE COURT: Okay. Response?
09:36 4 MS. BRANNEN: Good morning, Your Honor.
09:36 5 Elizabeth Brannen from Stris & Maher on behalf of the
09:37 6 Rhodium defendants.
09:37 7 I guess we really should have briefed the
09:37 8 point about Ms. Vidal, who -- Director Vidal, who I
09:37 9 remember fondly as Kathi Kelly Lutton, but the reason
09:37 10 we think this Court should not tell her agency what to
09:37 11 do:
09:37 12 First of all, I think they say in their
09:37 13 reply, they expect the agency to rule soon anyway. So
09:37 14 there is the chance that we can just see what the
09:37 15 Patent Office does. But the reason I would ask the
09:37 16 Court to deny the motion is that the correct
09:37 17 inventorship is a disputed issue in our litigation.
09:37 18 We do contend that there are two omitted
09:37 19 inventors, who they're not even trying to add. And we
09:37 20 don't think the record that they've submitted to this
09:37 21 Court even tries to meet their clear and convincing
09:37 22 burden to prove that all six of the guys they say
09:37 23 should come off actually didn't contribute.
09:37 24 You know, two of them, and we've cited
09:37 25 examples in our brief, testified that they contributed
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 6 of 56
6
09:37 1 to conception of one or more aspects of the claimed
09:38 2 invention. So I don't -- if you grant the motion, we
09:38 3 don't believe you'd be correcting anything. We just
09:38 4 don't think they met their burden. And at this point,
09:38 5 it may be best to see what the agency does.
09:38 6 THE COURT: Anything else from the
09:38 7 plaintiffs?
09:38 8 MR. KOLEGRAFF: Yeah. Just on the issue
09:38 9 of disputes of inventorship, there is no dispute on the
09:38 10 removal of these six. Those six, all six, have agreed
09:38 11 to do this. All six have testified that they're not
09:38 12 inventors. All six have testified that they are
09:38 13 comfortable with, and believe it's correct, that
09:38 14 Christopher Boyd is the sole inventor.
09:38 15 That's all, Your Honor.
09:38 16 THE COURT: Anything else?
09:38 17 MS. BRANNEN: Your Honor, in our brief,
09:38 18 we cited testimony from two of them to the effect that
09:38 19 they contributed to conception, and so that would not
09:38 20 make it proper to remove them. We don't think they've
09:38 21 met the clear and convincing burden.
09:38 22 THE COURT: Okay. I'll be back in a
09:38 23 second.
09:38 24 (Pause in proceedings.)
09:43 25 THE COURT: Okay. I'm going to grant the
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 7 of 56
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09:43 1 dismissal of the six; but with regard to the additional
09:43 2 two, I'm not sure -- I'll hear from defendant. I'm not
09:43 3 sure, procedurally, that issue is in front of me. I
09:43 4 don't think you're raising it in a response to a motion
09:43 5 properly put in front of me.
09:44 6 I'm really asking you. Is that wrong?
09:44 7 I'm thinking if it were, like, in a pleading or
09:44 8 something, it would be in front of me, or it's an issue
09:44 9 that the Patent Office should take up.
09:44 10 MS. BRANNEN: Good morning, Your Honor.
09:44 11 I think we would agree that doesn't -- the point I was
09:44 12 trying to make on this motion is, it wouldn't, from our
09:44 13 perspective, be a correction. So we were hoping the
09:44 14 Court would deny this motion on that basis. But I
09:44 15 think we can present evidence to the jury about whether
09:44 16 the patent is invalid for failure to list those two
09:44 17 individuals who we believe should be listed, who
09:44 18 they're not even asking you to add.
09:44 19 THE COURT: And have you raised that
09:44 20 issue formally in the case?
09:44 21 MS. BRANNEN: We have, Your Honor.
09:44 22 THE COURT: Okay. Okay. Well, then
09:44 23 we'll take that up at trial.
09:44 24 Next up, I have -- give me one second --
09:44 25 the motion to exclude rebuttal report and testimony of
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 8 of 56
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09:44 1 Dr. Alfonso Ortega.
09:45 2 And for the record, I have: Paragraphs
09:45 3 91, 92, 133 through 146, 178, 184, 189 and 90, 213,
09:45 4 222, 239 and 277.
09:45 5 I'll hear argument on that, please.
09:45 6 MR. THOMAS: Good morning, Your Honor.
09:45 7 Joseph Thomas on behalf of the plaintiff Midas Green
09:45 8 Technology.
09:45 9 Your Honor, this is a case that is, in my
09:45 10 40 years of practice, I've never seen. A law firm
09:45 11 directly engage a party who was supporting an expert
09:45 12 and use the privilege to shield from discovery all
09:45 13 communications, all test data, all test parameters, and
09:45 14 produce nothing but a simple result file, which is what
09:46 15 happened here today -- or happened in this case.
09:46 16 We think the law's very clear under
09:46 17 Rule 26 that anything the expert relies upon must be
09:46 18 produced in a case, and had Mr. Ortega functioned, as
09:46 19 the defendants claim, as his support staffer -- is the
09:46 20 term that they've used -- all of this would have been
09:46 21 discoverable, none of this would have been hidden from
09:46 22 us.
09:46 23 And as it stands, the only thing we have
09:46 24 access to is a simple result file that, of course,
09:46 25 shows a result that Dr. Ortega likes and counsel for
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 9 of 56
9
09:46 1 Rhodium likes, but none of the underlying test
09:46 2 parameters, test conditions, test failures, the
09:46 3 convergence data has been produced. And this kind
09:46 4 of -- I guess it's almost a policy argument, I mean,
09:46 5 whether the Court would sanction and allow lawyers
09:46 6 to --
09:46 7 THE COURT: I got it. I got it.
09:47 8 Is there anything else you need to add?
09:47 9 MR. THOMAS: No, Your Honor. We briefed
09:47 10 this and it seems like you've read it. I would just
09:47 11 point out, we think the Cellular Communications
09:47 12 Equipment case is really on point here, and this report
09:47 13 should be excluded.
09:47 14 THE COURT: The portion -- the paragraphs
09:47 15 I just read out should be excluded, right?
09:47 16 MR. THOMAS: Well, we think the --
09:47 17 there's a basis to exclude the entire report. We've
09:47 18 also, alternatively, cited specifically paragraphs that
09:47 19 rely on and use in reference to this CFD report. I can
09:47 20 recite those for you if you want, Your Honor. They're
09:47 21 in our moving papers.
09:47 22 THE COURT: No. I -- okay.
09:47 23 I'll hear a response.
09:47 24 MS. BRANNEN: Good morning, Your Honor.
09:47 25 We think that the criticisms are wrong on
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 10 of 56
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09:47 1 the facts about what happened, and also about the law.
09:47 2 So Dr. Ortega, to start with, opines that limitations
09:48 3 of the patent claims are missing and this motion, as I
09:48 4 think the Court has observed, only affects one
09:48 5 limitation, the plenum limitation.
09:48 6 And what Dr. Ortega did for that
09:48 7 limitation, it requires a plenum at the bottom of the
09:48 8 tank; and that has to be adapted to dispense the
09:48 9 dielectric fluid in the tank substantially uniformly
09:48 10 upwardly through each appliance slot.
09:48 11 The first thing that Dr. Ortega did was
09:48 12 to look at the design of the tank, the thing they're
09:48 13 pointing to is the plenum. One part of it has a bunch
09:48 14 of holes in it and it's designed to send the fluid
09:48 15 where things are hottest and need to be cooled the
09:48 16 most.
09:48 17 And he used his expertise to say this --
09:48 18 you know, this doesn't go substantially uniformly
09:48 19 upwardly. He reached that conclusion separately on the
09:48 20 plenum limitation.
09:48 21 Then he used data from the CFD analysis
09:48 22 that they challenge. Now, whether they're right, that
09:49 23 the -- his graduate student, who he trained how to do
09:49 24 CFD -- whether they're right, that that was an
09:49 25 independent expert, nontestifying expert, or whether
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 11 of 56
11
09:49 1 we're right, that that was his support staff, his
09:49 2 graduate student, the standard for what we had to do
09:49 3 was the same. Any of the data that Dr. Ortega relied
09:49 4 upon, reviewed and relied upon, we had to produce to
09:49 5 them. And we did that.
09:49 6 And their motion says we didn't give CAD
09:49 7 files, for example. That's flatly wrong. We can look
09:49 8 at their own expert's report at Paragraphs 132 and 52,
09:49 9 and he cites those CAD files because we produced them
09:49 10 in November.
09:49 11 They're also -- they also try to say that
09:49 12 there was cherry-picking. No. Dr. Ortega said,
09:49 13 here's -- that's a very large set of data. I want to
09:49 14 see the part that's right -- you know, he chose the
09:49 15 place he wanted to see it based on the claim language,
09:49 16 which requires the fluid to be going substantially
09:50 17 uniformly upwardly through the appliance slot.
09:50 18 That data that he relied upon, we have
09:50 19 produced to them. They never asked for additional data
09:50 20 from us in discovery. They never used this Court's
09:50 21 robust and efficient discovery dispute processes to say
09:50 22 we should have given them anything more.
09:50 23 And they're just wrong that
09:50 24 communications with support staff or nontestifying
09:50 25 experts get produced under Rule 26. They don't. The
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 12 of 56
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09:50 1 thing that gets produced is what we have produced, what
09:50 2 the expert relied upon.
09:50 3 There is a case in response to the
09:50 4 argument they make in reply that I would like to call
09:50 5 the Court's attention to where the fact pattern is very
09:50 6 similar and the expert who was undisclosed was found to
09:50 7 be -- there was no exclusion of the testifying expert's
09:50 8 report. That is National Wildlife Insurance Company
09:50 9 versus Western National Life Insurance Company. It's a
09:51 10 2011 case, 2011 Westlaw 840976, from the Western
09:51 11 District of Texas on March 3rd of 2011.
09:51 12 And there is also a major goose/gander
09:51 13 violation going on here, because we haven't had a
09:51 14 privilege log or the production of any communications
09:51 15 with the support staff of any of Midas Green's experts.
09:51 16 They want to have their Dr. Lee testify
09:51 17 about claim charts that he admittedly did not prepare.
09:51 18 They want to have their damages expert Mr. O'Bryan be
09:51 19 able to rely on hearsay from his subordinates.
09:51 20 So with everything going on, there's
09:51 21 certainly no basis, no authority whatsoever, for
09:51 22 excluding the entirety of Dr. Ortega's opinions. But
09:51 23 even his opinions about the CFD that they're
09:51 24 challenging, there is no basis to exclude those, not
09:51 25 under the facts of what actually happened and not under
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 13 of 56
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09:52 1 the law of what Rule 26 protects from discovery and
09:52 2 what it allows to be discoverable.
09:52 3 THE COURT: I'll be back in just a
09:52 4 second.
09:52 5 (Pause in proceedings.)
09:52 6 THE COURT: The Court is going to grant
09:52 7 the motion with respect to those paragraphs.
09:52 8 With respect to the issues that counsel
09:52 9 brought up at the end under the goose/gander standard,
09:52 10 if you have issues with what they've done, I'll
09:53 11 certainly entertain those separately.
09:53 12 Next I have the motion to exclude
09:53 13 Dr. Pokharna.
09:53 14 MS. BRANNEN: Good morning, Your Honor.
09:53 15 We are asking to control aspects of
09:53 16 Dr. Pokharna's expert report that we learned about for
09:53 17 the first time in the -- in his report itself that were
09:53 18 not in the final infringement contentions and also to
09:53 19 exclude his opinion about a system at the Temple
09:53 20 facility of my client that is admittedly inoperable
09:53 21 because they ran out of money and they never actually
09:53 22 finished installing what is accused. And so we think
09:53 23 it would not be -- it's just unreliable to convene a
09:53 24 jury, and there's no fact issue over that.
09:53 25 So to start with the new opinions that
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 14 of 56
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09:53 1 were undisclosed, we set those forth in our brief, but
09:54 2 I would point out, Your Honor, this is a case where
09:54 3 they didn't even tell us they were planning to amend
09:54 4 the contentions. They didn't move to amend earlier,
09:54 5 give us any warning.
09:54 6 And so the prejudice that we are
09:54 7 complaining about is that if we had known that these
09:54 8 theories might be something Dr. Pokharna would present,
09:54 9 we would have had the ability to take fact discovery
09:54 10 and conduct our fact discovery with that in mind.
09:54 11 And it's not a simple case of just
09:54 12 getting to depose Dr. Pokharna again for an hour.
09:54 13 There are seven named inventors, six of whom are coming
09:54 14 off. There were two -- there was a corporate witness
09:54 15 for Midas Green and another witness for Midas Green
09:54 16 about their systems. There were many Rhodium
09:54 17 witnesses.
09:54 18 It's just really unfair, and it shows a
09:54 19 disrespect for the rules to have not even alerted us
09:54 20 that they wanted to amend the final infringement
09:54 21 contentions and to disclose these theories for the
09:54 22 first time there.
09:54 23 With regard to the systems that are
09:55 24 inoperable, that's just silly to have a trial about
09:55 25 that. There's no fact dispute over that, and it would
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 15 of 56
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09:55 1 be a waste of judicial and party resources to do it.
09:55 2 So we would ask that that not -- you
09:55 3 know, the system was over two years ago. Our client
09:55 4 concededly ran out of money, never installed it.
09:55 5 Their expert has conceded it cannot
09:55 6 measure temperature. It's not wired in. There's just
09:55 7 nothing to present to the jury.
09:55 8 And it would be unreliable for
09:55 9 Dr. Pokharna to opine that systems in that state
09:55 10 practice any of the limitations.
09:55 11 THE COURT: A response?
09:55 12 MR. KOLEGRAFF: Yes. This is William
09:55 13 Kolegraff.
09:55 14 First of all, there's absolutely no --
09:55 15 nothing was hidden here from them. There's nothing new
09:55 16 that was put in Dr. Pokharna's report. For example,
09:55 17 this whole idea that Prime Controls, they were
09:55 18 surprised about, is, well, just very surprising.
09:56 19 Because on March 15th, 2023, we fully set
09:56 20 out to them in a supplement to Interrog 4 (sic), which
09:56 21 is Exhibit D here, the exact way that the Prime
09:56 22 Controls was set up and that Prime Controls was going
09:56 23 to be the infringing set of devices.
09:56 24 In response to our having done that
09:56 25 supplement to Rog 10, they came back in their
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 16 of 56
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09:56 1 Supplement Rog 1 and said: As a result of the system
09:56 2 described in plaintiff's supplemental response to
09:56 3 Interrogatory No. 10 and accused in plaintiff's final
09:56 4 infringement contentions...
09:56 5 They admitted that what was in the final
09:56 6 infringement contentions were these Prime Control
09:56 7 devices. So there's absolutely no surprise here.
09:56 8 Also, this actually is in the
09:56 9 contentions. We don't say the name "Prime Controls"
09:56 10 with the name "Prime Controls," but it's actually set
09:56 11 out that says: The control -- from the contentions --
09:57 12 the control facility includes an automated controlling
09:57 13 with software that measures and monitors and controls
09:57 14 the pumps, dry coolers, and temperature of the fluid.
09:57 15 That's exactly what the Prime Control
09:57 16 systems does. So Prime Control has been fully set out,
09:57 17 including Exhibit E, which is a manual that we have
09:57 18 cited to, that is the exact Prime Controls manual.
09:57 19 As far as the Kelvion coolers, in the
09:57 20 contentions themselves, we lay out that there are two
09:57 21 Kelvion coolers. There's a Guntner coolers at the
09:57 22 Rockdale facilities; there's Kelvion coolers at the
09:57 23 Temple facility. And they form the second -- secondary
09:57 24 cooling facility.
09:57 25 Again, those are fully disclosed in the
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 17 of 56
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09:57 1 contentions, and they were the basis for Dr. Pokharna's
09:57 2 report.
09:57 3 As far as what was installed not being
09:57 4 reliable, yes. It is true that they installed
09:57 5 significant portions of the Prime Control systems at
09:58 6 Temple, and then because they ran out of money, they
09:58 7 did delay that process.
09:58 8 However, we do know that there is
09:58 9 evidence that says that they are planning on re- --
09:58 10 turning that system on -- finishing that system and
09:58 11 turning it on later.
09:58 12 So they have substantially installed the
09:58 13 Prime Control systems. They're on the 99-yard line.
09:58 14 They just haven't flipped the actual switch.
09:58 15 The system is still adapted to -- it's
09:58 16 still capable of taking these measurements once they
09:58 17 finish and flip the switch.
09:58 18 So they also have this issue where they
09:58 19 don't believe that we have disclosed the slots, that
09:58 20 they were surprised that we have the slots.
09:58 21 Well, again, if you look through the --
09:58 22 our opposition, we put pictures of the slots in the
09:58 23 first amended complaint. We had -- in our supplement
09:58 24 to No. 4, we actually had a picture of the tape with
09:58 25 red lines showing where the slots were.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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09:59 1 There's absolutely no surprise whatsoever
09:59 2 to anything in the -- Dr. Pokharna's report.
09:59 3 THE COURT: I'll be back in just a
09:59 4 second.
09:59 5 (Pause in proceedings.)
10:00 6 THE COURT: The Court grants that motion.
10:00 7 The next motion we have up is the motion
10:00 8 the exclude James Lee. I'll hear from defendants on
10:00 9 that.
10:00 10 MS. BRANNEN: Your Honor, on this motion,
10:00 11 we had two aspects of it. Sorry. For a moment, I
10:00 12 wasn't sure if you were calling on us or the other
10:00 13 counsel.
10:00 14 But the first aspect is a correction --
10:00 15 what they call a correction, but it's really an
10:00 16 addition to Dr. Lee's report that he served at the end
10:00 17 of a deposition.
10:00 18 Their position just doesn't make any
10:00 19 sense on this. They argue simultaneously that it is
10:01 20 duplicative of what was already in his report and that
10:01 21 it's necessary.
10:01 22 It can't be both. And all I know is that
10:01 23 it's too late, and we ask Your Honor to exclude it.
10:01 24 The other thing that we are focusing on
10:01 25 in this motion is the fact that Dr. Lee is their
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:01 1 rebuttal expert, not their opening expert.
10:01 2 And he gave an opinion that based on
10:01 3 charts that he did not prepare, that apparently counsel
10:01 4 prepared, as they say they had been produced in
10:01 5 discovery, he gave an opinion that Midas' products
10:01 6 practice the patents.
10:01 7 We think that opinion is unreliable. But
10:01 8 in any event, it's too late -- too late for their
10:01 9 damages expert, their opening expert to have relied
10:01 10 upon it.
10:01 11 And that's basically about it for that
10:01 12 opinion. It's not plausible, and it also is too late
10:01 13 for the purposes they want to use it for in the case.
10:02 14 THE COURT: Who's going to respond to
10:02 15 this?
10:02 16 MR. THOMAS: Joseph Thomas.
10:02 17 THE COURT: Is there any reason why -- I
10:02 18 think I've gone over this -- why this couldn't be taken
10:02 19 care of by just allowing this gentleman to be deposed
10:02 20 now?
10:02 21 I'm asking you, Counsel.
10:02 22 MR. THOMAS: You're asking Mr. Thomas?
10:02 23 THE COURT: I'm asking you. I'm asking
10:02 24 you. I don't know how to make it any clearer. I'm
10:02 25 asking you to respond.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:02 1 MR. THOMAS: The -- Mr. Thomas. Yes.
10:02 2 THE COURT: Yes.
10:02 3 MR. THOMAS: We're happy to let him be
10:02 4 deposed again if they want to. We don't think they
10:02 5 need to. They had his --
10:02 6 THE COURT: Well, I'm -- stop while
10:02 7 you're ahead. I'm going to allow them -- I'm going to
10:02 8 deny the motion and allow them to depose the witness.
10:02 9 Now, going back to Mr. -- or
10:02 10 Dr. Pokharna. Is he your only infringement expert?
10:03 11 MR. THOMAS: Yes.
10:03 12 THE COURT: So what I'm going to do is --
10:03 13 it will obviously impact the trial setting, but I'm
10:03 14 going to allow you to amend his report, see if you can
10:03 15 fix it. And you all will need to get together with
10:03 16 opposing counsel and figure out how long you think
10:03 17 it'll take for Dr. Pokharna to address any of the
10:03 18 issues that you think would make his opinion survive a
10:03 19 future challenge.
10:03 20 And then y'all can set up a schedule to
10:03 21 figure out how to deal with that in terms of rebuttal
10:03 22 reports and all that. So I'm going to allow him to
10:03 23 amend his report.
10:03 24 Next up I have the motion to exclude -- I
10:03 25 don't know if it's a doctor or not. I don't think it
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:03 1 is -- Duross O'Bryan. This is the defendants' motion.
10:04 2 MS. BRANNEN: Thank you, Your Honor.
10:04 3 THE COURT: This one -- this one has both
10:04 4 lost profits and a reasonable royalty analysis.
10:04 5 MS. BRANNEN: That's correct.
10:04 6 Is my screen successfully sharing? We
10:04 7 prepared a few slides on this one.
10:04 8 Midas' damages opinion -- damages expert
10:04 9 makes four main errors that we believe are substantial
10:04 10 and not just matters that we should have to cross them
10:04 11 on, Your Honor. The first error pervades both his lost
10:04 12 profits and his reasonable royalty damages.
10:08 13 (Clarification by Reporter.)
10:08 14 (Recess taken.)
10:08 15 THE COURT: Let's go back on the record.
10:08 16 MS. BRANNEN: Thank you, Your Honor.
10:08 17 This is Elizabeth Brannen, addressing the motion to
10:08 18 exclude Midas' damages expert, Mr. O'Bryan.
10:08 19 The first error he made pervades his lost
10:08 20 profits and reasonable royalty opinions, both of them.
10:08 21 And he basically doubles his damages number by assuming
10:08 22 that Rhodium would continue infringing for almost three
10:09 23 years past trial, even if there's a jury verdict of
10:09 24 infringement.
10:09 25 Now, the patent -- he's -- the patent
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:09 1 doesn't expire till something like 2035. He's not
10:09 2 giving an opinion about a fully paid-up license. This
10:09 3 is something different going on. He's saying he has
10:09 4 the ability to award damages after trial based on
10:09 5 speculation that my client would continue to infringe.
10:09 6 And there's just no basis for that. Certainly no
10:09 7 reliable basis.
10:09 8 If we look at the basis he said he had --
10:09 9 I'll try sharing my screen here to put some of this --
10:09 10 make some of this visible -- he's relying only on a
10:09 11 single projection, and that projection is something
10:09 12 that Rhodium filed in connection with a potential
10:09 13 merger transaction. And that document just says that
10:09 14 Midas -- that Rhodium -- excuse me -- plans to expand
10:09 15 its operations to full capacity if the merger goes
10:10 16 through.
10:10 17 Well, two problems. First of all,
10:10 18 expanding your operations doesn't say anything about
10:10 19 whether you would continue infringing or ignore an
10:10 20 infringing verdict. And even more importantly, that
10:10 21 merger never happened. It was canceled. And
10:10 22 Mr. O'Bryan omitted the -- didn't take into account the
10:10 23 fact that he just assumed that --
10:10 24 THE COURT: Let me interrupt you and hear
10:10 25 a response to that argument.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:10 1 MR. THOMAS: Your Honor, the
10:10 2 representations made in that S-1 were for a merger that
10:10 3 was canceled, but the representations were not
10:10 4 conditional. They did not say, If we get the merger,
10:10 5 we'll do this expansion. They just said that our
10:10 6 business plan is to expand.
10:10 7 That's what they told their investors.
10:10 8 They had existing investors and the prospective new
10:10 9 investors through the merger. So those representations
10:11 10 are from Rhodium of their own expansion plans, which
10:11 11 are reasonable for Mr. O'Bryan to rely upon.
10:11 12 THE COURT: Did he or did he not rely on
10:11 13 that merger when he -- when he comes in and he says,
10:11 14 This is what I did. I looked and there's this document
10:11 15 that shows there's going to be a merger and -- to rely
10:11 16 on and the merger didn't happen, is that what he's
10:11 17 going to say?
10:11 18 MR. THOMAS: No. He's going to say these
10:11 19 are representations that they issued that were not
10:11 20 conditioned upon the merger. They were made in the
10:11 21 public forum. And I'm going to rely on their
10:11 22 representations to their investors that they had a
10:11 23 plan -- they have a plan to expand.
10:11 24 THE COURT: Okay. Is there anything else
10:11 25 you'd like to say with respect to the lost profits
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:11 1 argument that the defendant is making?
10:11 2 MR. THOMAS: Yes, Your Honor. The lost
10:11 3 profit analysis was done correctly. It was based on
10:12 4 information that was available to the experts. Both
10:12 5 sides' experts have acknowledged there are no licenses.
10:12 6 This is relatively brand-new technology in this field.
10:12 7 This immersion cooling technology hasn't been licensed.
10:12 8 Mr. O'Bryan properly used the sales of
10:12 9 the product as a basis, and there's good case law we
10:12 10 cited for him to rely upon the sales as a basis to
10:12 11 determine the reasonable royalty, and the profits from
10:12 12 those sales to support that reasonable royalty
10:12 13 analysis.
10:12 14 THE COURT: Would you give me an example?
10:12 15 MR. THOMAS: Yes. They -- they -- our
10:12 16 deadlines made a significant sale to a company known as
10:12 17 RITE. It's a public company. It's one of the largest
10:12 18 bitcoin mining companies in the -- North America, if
10:12 19 not the U.S. -- if not nationally -- internationally.
10:12 20 And those sales occurred well within
10:13 21 months or within a year or so of the time that the
10:13 22 license would have been negotiated. And under the Book
10:13 23 of Wisdom, Mr. O'Bryan used those sales to forecast
10:13 24 what the expected profits would be of my client in
10:13 25 terms of making assumption on how to --
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:13 1 THE COURT: How does the Book of Wisdom,
10:13 2 what does that have to do with lost profits?
10:13 3 MR. THOMAS: Well, the lost -- we believe
10:13 4 that the sale of the --
10:13 5 THE COURT: No, no. What does the book
10:13 6 of profits -- what does that have to do with lost
10:13 7 profits? I don't understand.
10:13 8 MR. THOMAS: Well, the -- we believe that
10:13 9 the case law allows Mr. O'Bryan --
10:14 10 THE COURT: Tell me any case that
10:14 11 discusses the Book of Wisdom in a context of lost
10:14 12 profits.
10:14 13 MR. THOMAS: Okay. Well, Your Honor, we
10:14 14 don't need the Book of Wisdom. Rhodium installed
10:14 15 200 megawatts. He's using their actual installation as
10:14 16 the basis to determine a sale that would have been made
10:14 17 by my client to Rhodium of those products. And using
10:14 18 those -- that sales information, he projected his lost
10:14 19 profits.
10:14 20 THE COURT: Okay. I'll be back in just a
10:14 21 second.
10:14 22 (Pause in proceedings.)
10:15 23 THE COURT: This question is for -- sorry
10:15 24 for all the coughing -- either party, but I'll start
10:15 25 with the party that is moving for this, the defendant.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:15 1 What specific paragraphs in his -- in the
10:16 2 report are you asking me to strike on lost profits?
10:16 3 Can you articulate those into the record?
10:16 4 MS. BRANNEN: Your Honor, I would need a
10:16 5 moment to pull it up and articulate them into the
10:16 6 record, but we're asking to strike his entire lost
10:16 7 profits opinion, because he has no basis --
10:16 8 THE COURT: Is it -- I'm sorry. Is it
10:16 9 divided up, lost profits -- I'm making this up --
10:16 10 Page 1 through 10, reasonable royalty, 11 through 20.
10:16 11 Is it -- is it that clean?
10:16 12 MS. BRANNEN: I believe it's fairly
10:16 13 clean. Let me show my screen to give an example of one
10:16 14 page. Let me see if I can do it.
10:16 15 So here's an example of a table in his
10:16 16 report. And he's very clear at the top about what his
10:16 17 reasonable royalty number is. And then underneath
10:16 18 that, he's clear -- he's got a separate line item for
10:16 19 what his lost profits opinion is. And so the report is
10:16 20 well organized in the sense that his lost profits
10:16 21 opinions are coherent. And I apologize that I don't
10:17 22 know exactly those, but if we take a short break, I
10:17 23 can --
10:17 24 THE COURT: Here's what I'm going to do.
10:17 25 We've gone over -- I'm going to grant the motion with
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:17 1 respect to lost profits. Same deal. If the
10:17 2 defendant -- I'm sorry -- the plaintiff wants to have
10:17 3 their expert redo the lost profits and try and go
10:17 4 again, that's fine. You all need to figure out how to
10:17 5 do the schedule.
10:17 6 I'm going to deny the motion with respect
10:17 7 to the -- his reasonable royalty calculations.
10:17 8 Next up, I have the motion for summary
10:17 9 judgment of noninfringement. I'll hear from the
10:17 10 defendant on that, please.
10:17 11 MS. BRANNEN: Thank you, Your Honor.
10:17 12 May I clarify the Court's ruling on
10:17 13 Mr. O'Bryan? The posttrial damages period that he has
10:17 14 is in his lost profits, but it also pervades his
10:18 15 reasonable royalty. Is there a separate ruling on the
10:18 16 aspect of damages --
10:18 17 THE COURT: So I usually don't have a
10:18 18 problem with the jury answering future reasonable
10:18 19 royalty, because then at least we have a reasonable
10:18 20 royalty rate. And if the plaintiff is successful, then
10:18 21 the jury will have spoken as to the reasonable royalty
10:18 22 rate, which is probably what I would consider applying
10:18 23 on damages going forward, if you continued to make
10:18 24 sales.
10:18 25 And they're not going to get those
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:18 1 damages, future damages, unless you -- the sales were
10:18 2 actually made. And the way I've done it in the past,
10:18 3 both as a lawyer and as a judge, is let's say plaintiff
10:18 4 wins. Reasonable royalty rate -- I'll make up
10:18 5 something -- 5 percent. I would allow you -- allow the
10:18 6 defendant to continue to sell and -- but they would
10:18 7 have to put into the registry of the Court the
10:19 8 6 percent. If you stopped selling, there would be no
10:19 9 future damages under a reasonable royalty deal. Does
10:19 10 that sound -- is that what you were asking me?
10:19 11 MS. BRANNEN: Thank you, Your Honor.
10:19 12 Yes. I think it clarifies it. In other words, as I
10:19 13 understand it, lost profits, they've got to completely
10:19 14 redo it if they want to try to get it in.
15 THE COURT: Correct.
10:19 16 MS. BRANNEN: Reasonable royalty, they --
10:19 17 THE COURT: And I'll say right now, lost
10:19 18 profits -- is there -- let me ask the plaintiffs: Is
10:19 19 there no request for an injunction here?
10:19 20 MR. THOMAS: No. No, Your Honor. There
10:19 21 isn't.
10:19 22 THE COURT: Okay. Is there a reason
10:19 23 there's not a request for injunction?
10:19 24 MR. THOMAS: I'm sorry. I misspoke.
10:19 25 There is a request for an injunction.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:19 1 THE COURT: Okay. So generally speaking
10:19 2 again, what I will do is, with regard -- if it's a lost
10:19 3 profits, I probably will have to -- I probably won't
10:19 4 give them a question on future lost profits, but again,
10:20 5 and this is because we don't know whether there'd be
10:20 6 any, I will take up the injunction question because you
10:20 7 all, I assume, are competitors or you wouldn't have
10:20 8 lost profits.
10:20 9 And so but I will -- so don't anticipate
10:20 10 getting a lost profits question going forward, but if
10:20 11 you can redo it and you think you can get past a
10:20 12 Daubert challenge, I'll do it for both prior. And then
10:20 13 if -- again, only if the plaintiff wins, if the
10:20 14 defendant comes in and says, No, you shouldn't give an
10:20 15 injunction, well, then we'll have to figure out a way
10:20 16 to be fair to the plaintiff to make sure how we assess
10:20 17 damages going forward. And I'll take care of that.
10:20 18 So did I make it clearer or less clear on
10:20 19 what I just said for everyone? I'm happy to answer any
10:20 20 questions that you have.
10:20 21 MS. BRANNEN: Your Honor, this is
10:20 22 Elizabeth Brannen for Rhodium. Just I think it's clear
10:21 23 with respect to the original question I was asking.
10:21 24 So for their reasonable royalty, they're
10:21 25 not going to get a damages award past trial
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:21 1 automatically, they have to present what it is through
10:21 2 trial and then they can get a separate ruling on if
10:21 3 Rhodium were to continue to infringe, what could the
10:21 4 reasonable royalty be after that. Have I --
10:21 5 THE COURT: Right. And I've seen it
10:21 6 handled two ways, and I would let you all argue what's
10:21 7 fair. I've seen it where the jury's given an amount --
10:21 8 I'm making this up again -- 5 percent. And so you give
10:21 9 the 5 percent. This is where the Book of Wisdom does
10:21 10 come in. You know, they will have figured that out.
10:21 11 But I've also seen judges who have
10:21 12 considered giving a slightly higher, going forward,
10:21 13 because it's now -- the jury's now found infringement.
10:21 14 So but they're -- I'm not going to award -- now, I
10:21 15 didn't hear anyone talk about a lump sum. If there is
10:21 16 a lump-sum award that goes through the end of the --
10:22 17 that would go through the end of the patent, whenever
10:22 18 that is, which is a period going forward, but
10:22 19 obviously, it's an amount that neither of y'all have
10:22 20 done yet and that someone would say, as opposed to
10:22 21 reasonable royalty, we would take -- the plaintiff
10:22 22 would have taken a lump sum of X and y'all would have
10:22 23 paid a lump sum of X and -- y'all have -- but y'all
10:22 24 haven't done that. So that's not an issue here.
10:22 25 So as far as I can tell, from the way the
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:22 1 plaintiffs have structured their damages model, they
10:22 2 won't be getting future damages until we see if they
10:22 3 win and what I do on the injunction, and then if there
10:22 4 is not an injunction and you all do continue to sell
10:22 5 what the jury has determined to be infringing, I'll
10:22 6 make sure we come up with some way of making sure the
10:22 7 plaintiff is protected financially.
10:22 8 Anything else?
10:22 9 MS. BRANNEN: Just I would like to
10:22 10 clarify, my client is not a competitor of Midas Green,
10:23 11 not even allegedly. And that's part of why they have
10:23 12 such a trouble of meeting the lost profits standard.
10:23 13 THE COURT: Well, then they're going to
10:23 14 have a really tough time getting an injunction.
10:23 15 MS. BRANNEN: I don't even believe
10:23 16 there's a live injunction request, Your Honor. That
10:23 17 was news to me. I do not think they've preserved it.
10:23 18 I certainly don't think they have --
10:23 19 THE COURT: Well, they've told me there's
10:23 20 an injunction request. Maybe there is; maybe there
10:23 21 isn't. I don't know.
10:23 22 MS. BRANNEN: Thank you.
10:23 23 THE COURT: I'm up with the law, that
10:23 24 they only get one if y'all are competitors. And I
10:23 25 don't know -- I'll know much better after trial whether
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:23 1 or not I think you're competitors.
10:23 2 MR. THOMAS: Your Honor, that is a
10:23 3 disputed issue in this case. We contend, Your Honor,
10:23 4 we are competitors.
10:23 5 THE COURT: Well, I have no way of
10:23 6 knowing which of you is right.
10:23 7 So next up we have the motion for summary
10:23 8 judgment of noninfringement. I'll take that up.
10:23 9 MS. BRANNEN: Thank you, Your Honor.
10:23 10 So the technology at issue involves
10:24 11 systems for pooling bitcoin miners. The computers that
10:24 12 do the mining get very hot when they're mining bitcoin.
10:24 13 And in particular, the patent and the
10:24 14 accused systems -- and you can see a picture -- some of
10:24 15 the accused systems, they relate to their immersion
10:24 16 cooling systems. Meaning, there are miners that get
10:24 17 immersed in dielectric fluid. It doesn't conduct
10:24 18 electricity. And as the liquid is circulated through
10:24 19 the system, it removes heat from the miners.
10:24 20 We believe a lot of limitations are
10:24 21 missing, but we focused our motion on a single claim
10:24 22 limitation. And we believe it's the rare case where
10:24 23 Midas doesn't have any evidence that Rhodium uses
10:24 24 anything like this limitation that's shown here.
10:24 25 And it requires the system to have a
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:24 1 control facility, and that control facility has to be
10:24 2 adapted to coordinate the operation of two different
10:25 3 fluid circulation facilities, a primary facility and a
10:25 4 secondary facility.
10:25 5 And it has to be adapted to coordinate
10:25 6 their operation based on this recited variable as a
10:25 7 function of the temperature of the dielectric fluid in
10:25 8 the tank containing the bitcoin miners.
10:25 9 And we don't -- basically, for the
10:25 10 primary fluid circulation facility, you can think of
10:25 11 that as the pipes and pumps. That's what they say it
10:25 12 is. We may take issue with that at trial, but not for
10:25 13 purposes of this motion.
10:25 14 Similarly, for the secondary fluid
10:25 15 circulation facility, they point to these large coolers
10:25 16 that have fans in them. So you can think of the
10:25 17 primary as pumps and pipes; secondary, they say it's
10:25 18 the fans and the dry coolers.
10:25 19 And we pointed out in our motion that we
10:25 20 don't take the temperature of the fluid in the tank,
10:26 21 and we don't use it for anything, let alone to
10:26 22 coordinate either of those facilities, those fluid
10:26 23 circulation facilities.
10:26 24 Reading their opposition, you could be
10:26 25 forgiven for assuming that I'd be standing in front of
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:26 1 you asking for a very narrow special construction of
10:26 2 this term, but that's not what we're doing.
10:26 3 Our motion, we construed nothing. We
10:26 4 agree that this term gets its plain meaning, and we
10:26 5 don't have this limitation or anything like it.
10:26 6 And so in our motion, we went through all
10:26 7 the various theories their expert had put forth, some
10:26 8 of which have been addressed in the motion to exclude
10:26 9 Dr. Pokharna, where the opinions weren't in their final
10:26 10 infringement contentions.
10:26 11 But we went through all the various
10:26 12 theories of why they said this limitation was present,
10:26 13 and we debunked each of them. And we showed why the
10:26 14 limitation isn't there literally and why, in those
10:26 15 instances when he had offered an opinion under the
10:26 16 doctrine of equivalents, there was no -- nothing in the
10:27 17 report, no evidence that could satisfy that standard
10:27 18 for insubstantial differences for same
10:27 19 function-way-result.
10:27 20 So the first thing I'd like to hopefully
10:27 21 establish in this motion is that based on the DMM
10:27 22 Specialities case, which we cite in our reply at Page 2
10:27 23 and also just common sense, their opposition makes no
10:27 24 attempt whatsoever to defend or salvage any of
10:27 25 Dr. Pokharna's theories under the doctrine of
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:27 1 equivalents.
10:27 2 You can scour their opposition. The word
10:27 3 "equivalent" isn't there. "Equivalents" isn't there.
10:27 4 "DOE" isn't there. "Insubstantial" or "substantial
10:27 5 differences," it's just not discussed. They have
10:27 6 waived this.
10:27 7 And I'm happy also to go through each of
10:27 8 the things that they have -- all the various theories
10:27 9 they pointed to and show why there is a failure under
10:27 10 the plain meaning of this limitation to show that we
10:27 11 have anything like it.
10:28 12 But the first system that they accuse are
10:28 13 the Prime Controls and Kelvion sensors. Those are the
10:28 14 ones that are admittedly inoperable that I believe have
10:28 15 been excluded in connection with Dr. Pokharna's report.
10:28 16 And I don't think this is fixable, Your
10:28 17 Honor. There is no -- there's attorney argument, and
10:28 18 we heard some of the attorney argument from
10:28 19 Mr. Kolegraff.
10:28 20 But this is a system where most of the
10:28 21 sensors are missing and none of the sensors they're
10:28 22 pointing to is wired in. And perhaps more importantly,
10:28 23 their expert, you can see the interrogatory response
10:28 24 they cite to in their opposition at Page 13, saying:
10:28 25 Even where a sensor is connected, it is not wired in.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:28 1 Their expert, Dr. Pokharna, conceded that
10:28 2 in its present state, this system cannot measure
10:28 3 temperature.
10:28 4 Now, even if this was operational, they
10:29 5 haven't explained what they believe the plain meaning
10:29 6 of this limitation is or why what this system was
10:29 7 designed to measure would actually be adapted to
10:29 8 coordinate both control facilities.
10:29 9 And so that's also another problem with
10:29 10 this whole theory, that you can see up here the
10:29 11 sensors, where they would go, are in an entirely
10:29 12 different building and they have a little sign they
10:29 13 have labeled -- their own expert has labeled that the
10:29 14 building containing the tanks with the miners is in a
10:29 15 completely different place.
10:29 16 This wouldn't be the variable they need
10:29 17 to show that we're using, and they also can't show that
10:29 18 it would be adapted to coordinate both fluid
19 circulation facilities.
10:29 20 The only evidence they give is shown
10:29 21 here, that it would be adapted to adjust the fan speed.
10:29 22 Well, that's what they say is the secondary circulation
10:29 23 facility. In order to survive summary judgment, they
10:29 24 should have to present evidence and explain how that
10:30 25 evidence could lead a reasonable juror to believe that
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 37 of 56
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10:30 1 the claim language is satisfied with respect to both
10:30 2 circulation facilities and being adapted to coordinate
10:30 3 the operation of both of them. And they just can't do
10:30 4 that for the main thing that they spent the most time
10:30 5 on in their brief, which is this Prime Controls and
10:30 6 Kelvion coolers.
10:30 7 And by the way, they briefed those
10:30 8 separately, but Prime Controls and other vendors were
10:30 9 hired to build the monitoring system for the Kelvion
10:30 10 cooler. So even though they talk about the Prime
10:30 11 Control system and then they talk about the Kelvion
10:30 12 coolers, you can see, for example, from their brief at
10:30 13 Page 18, the thing they're citing to for the Kelvion
10:30 14 coolers as evidence that those infringe, that's all
10:30 15 design documents of Prime Controls. That was
10:30 16 admittedly never installed and is admittedly
10:30 17 inoperable, cannot measure any temperature.
10:30 18 So at the last page of their brief, they
10:30 19 give a couple throwaways to try to defend a theory of
10:31 20 infringement based on the Guntner coolers. These are
10:31 21 shown here. These are only at Rhodium's Rockdale
10:31 22 facility.
10:31 23 And again, the tanks containing the
10:31 24 miners are in one place, and the coolers they're
10:31 25 pointing to are outside the building. And what their
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 38 of 56
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10:31 1 theory is here is that Rhodium measures the temperature
10:31 2 of the fluid after it comes out of the cooler.
10:31 3 Well, that obviously is not literally the
10:31 4 same thing as the fluid in the tanks nor is it even
10:31 5 arguably insubstantially different.
10:31 6 And they also -- for this one too, all
10:31 7 they say is that we might use it to adjust the fan
10:31 8 speed in these coolers. There's no evidence they can
10:31 9 point the Court to of how this is in any way adapted to
10:31 10 coordinate the operation of what they've pointed to as
10:31 11 the primary fluid circulation facility, the pumps and
10:31 12 the pipes.
10:31 13 So it's deficient in multiple respects.
10:31 14 And the single paragraph in their opposition that's
10:32 15 dedicated to try to revive this doesn't answer the
10:32 16 question of how this is using the right variable in any
10:32 17 way, let alone using any variable to control both fluid
10:32 18 circulation facilities. They only talk about fans.
10:32 19 Then the final thing that they also try
10:32 20 to revive is the fact that in both facilities, Temple
10:32 21 and Rockdale, Rhodium can measure the temperature of
10:32 22 the chips in the miners and the printed circuit boards
10:32 23 in the miners.
10:32 24 Their expert, though -- obviously
10:32 25 measuring a chip temperature or a board temperature is
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 39 of 56
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10:32 1 not measuring the temperature of the tank fluid. And
10:32 2 their expert admitted those are different. So there's
10:32 3 no literal infringement. There's no analysis of why it
10:32 4 would be insubstantially different.
10:32 5 And again, here too, all they say with
10:32 6 PCB temperature is that we can monitor it. All they
10:32 7 say with chip temperature is that we can shut off the
10:33 8 miner or reduce power to the miner.
10:33 9 But what they haven't said is what
10:33 10 evidence is there anywhere in the record that we could
10:33 11 use either the chip or PCB temperature to coordinate
10:33 12 the operation of the pumps and pipes or of the fans,
10:33 13 which they say are the primary and the secondary
10:33 14 circulation facilities.
10:33 15 There is no evidence. It's a rare case
10:33 16 where none of their theories even make sense. And we
10:33 17 hope they should have to articulate one that we can at
10:33 18 least understand what this jury is going to be asked to
10:33 19 decide before they would be allowed to proceed.
10:33 20 THE COURT: A response?
10:33 21 MR. KOLEGRAFF: Yes. So as -- there are
10:33 22 just a lot of triable issues of material fact here.
10:33 23 And what Rhodium has done to try to eliminate those
10:33 24 facts is they've taken a very unusual reading -- a
10:33 25 plain reading of Claim 1.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:33 1 And what they're trying to say is that
10:33 2 you have to have your temperature sensor in the tank to
10:33 3 take the temperature of the fluid.
10:34 4 Their entire motion is based upon that
10:34 5 premise, that they have to require a sensor in the tank
10:34 6 taking the temperature of the fluid. But the claim
10:34 7 just doesn't say that.
10:34 8 Now, this is extremely important to it.
10:34 9 On Page 2 of their motion, they say: In other words,
10:34 10 to infringe Midas' asserted claims, a cooling system
10:34 11 must take advantage of the dielectric fluid while it
10:34 12 is -- must take the temperature while it is in the
10:34 13 tank.
10:34 14 They say the same thing on Page 4:
10:34 15 Neither of the tanks have a fluid temperature in the
10:34 16 tank.
10:34 17 This is repeated throughout their motion.
10:34 18 That is the basis for this entire motion, is that there
10:34 19 has to be a temperature sensor inside the tank in order
10:34 20 to take the temperature.
10:34 21 If we look at Claim 1 and parse it, it
10:34 22 talks about: A control facility adapted to coordinate
10:34 23 the operation of the primary and secondary fluid
10:35 24 circulation facilities as a function of the temperature
10:35 25 of the dielectric fluid in the tank.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 41 of 56
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10:35 1 That plain reading does not say where a
10:35 2 temperature sensor has to be. It certainly doesn't
10:35 3 place it in the tank. It certainly doesn't even say
10:35 4 you have to take the measurement of the fluid itself.
10:35 5 All you have to do is collect enough
10:35 6 information so that you can coordinate the operation of
10:35 7 the two circulation facilities.
10:35 8 So here you can have that sensor -- that
10:35 9 temperature sensor, you could have it in the tank. You
10:35 10 don't have to. But you could have it on the pipe
10:35 11 leading out of the tank. You could have it on the
10:35 12 inlet pipe to the tank. You could have it further down
10:35 13 towards the coolers.
10:35 14 Every one of those data points, every one
10:35 15 of those points, is going to give you sufficient data
10:35 16 in order to make decisions on how you want to run your
10:35 17 pumps and fans.
10:35 18 For example, we are talking about the
10:35 19 Guntner coolers, which are the coolers that sit out in
10:35 20 the -- outside the building, there, we are measuring
10:36 21 the fluid temperature that comes out of the cooler.
10:36 22 That is the exact same temperature as is
10:36 23 going into the tank. So we are measuring the
10:36 24 temperature of the fluid in the tank, and we adjust the
10:36 25 fan speeds of that Guntner -- excuse me -- Rhodium
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 42 of 56
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10:36 1 adjusts the fan speeds of the Guntner cooler to make
10:36 2 sure that that inlet temperature to the tank remains
10:36 3 very constant.
10:36 4 We know for a fact that the claim does
10:36 5 not require that the temperature sensor be in the tank,
10:36 6 and we know it for at least a couple of reasons.
10:36 7 First of all, if we look at Figure 13 of
10:36 8 the patent, there are sensors that are shown not only
10:36 9 in the reservoir, which is separate from the tank, but
10:36 10 the temperature sensors are also shown in the fluid
10:36 11 pipes and shown in the fluid pipes of the primary
10:36 12 circulation facility and shown as the temperature
10:37 13 sensors in the secondary facility.
10:37 14 So even the embodiments that we have in
10:37 15 the patent do not show the sensor in the tank.
10:37 16 It's also shown in Figures 4 and 12 where
10:37 17 you have the tank, which is numbered 14, the tank 14
10:37 18 does not have a sensor in it. The only sensor is in
10:37 19 the recovery reservoir, which is No. 42. So again,
10:37 20 even the embodiments that we have in the patent do not
10:37 21 require that the sensor be in the tank.
10:37 22 So let's talk a little bit about Prime
10:37 23 Controls. Prime Controls is a very sophisticated
10:37 24 control system that has no other purpose in life but to
10:37 25 control and manage the system at the Temple facility.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:37 1 There are temperature sensors, there are pump controls,
10:37 2 there are reporting facilities. They spent millions of
10:37 3 dollars putting this thing in, and it has no
10:37 4 noninfringing functionality.
10:37 5 Again, if you look at Exhibit G of our
10:38 6 opposition, you can see that they have the layout of
10:38 7 the complete system, the entire plumbing and design
10:38 8 system. H shows a picture of the Kelvion and Temple
10:38 9 coolers that have the temperature sensors installed.
10:38 10 They're already there in the pipes.
10:38 11 They talked about saddles being
10:38 12 installed. They purchased saddles to put on those
10:38 13 pipes so they can make the finishing of the
10:38 14 installation even easier.
10:38 15 If you look at Exhibit I, there is an
10:38 16 issued-for-approval manual on how this whole system is
10:38 17 supposed to be put together, this Prime Control system,
10:38 18 and it shows all of these things working and in
10:38 19 operation. So it's almost fully installed. They just
10:38 20 haven't flipped the final switch.
10:38 21 And let's -- we're going to suggest here,
10:38 22 is that they have just not turned on that switch
10:39 23 because of this litigation. As soon as this litigation
10:39 24 is over, you know, they're very likely to turn this
10:39 25 thing back on because, again, they've got a million
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 44 of 56
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10:39 1 dollars of sunk costs, that they're going to need to
10:39 2 turn on. And we have an e-mail, this is from a Depo
10:39 3 Exhibit 77, that says: Our plan -- and that's
10:39 4 referring to Rhodium -- Our plan is to get Prime
10:39 5 Controls paid back and then have Prime Controls finish
10:39 6 the rest of the work on the site.
10:39 7 So that is a huge issue of fact, whether
10:39 8 or not Rhodium is going to reactivate or activate this
10:39 9 Prime Controls when this litigation is over.
10:39 10 Also, so -- also, how much work they have
10:39 11 left to do is also a huge issue of fact as it goes to
10:39 12 Prime Controls.
10:39 13 As far as any waiver, we've waved
10:39 14 nothing. We attached the entire report of
10:40 15 Dr. Pokharna, where he goes not only through literal
10:40 16 infringement, he goes through doctrine of equivalents
10:40 17 infringement on all of these issues.
10:40 18 As far as the Kelvion systems at Temple,
10:40 19 that really reduces down to the same arguments we were
10:40 20 just talking about with Prime Controls. That is, the
10:40 21 temperature sensors are there. The computers are in
10:40 22 place. It's basically all set to go, they just have to
10:40 23 finish wiring it up and then they're going to be able
10:40 24 to control the Kelvion coolers based upon the
10:40 25 temperature of the coolant.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 45 of 56
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10:40 1 At Guntner, which is at the Rockdale
10:40 2 facility, that we do know is in operation. They
10:40 3 actually have the Guntner coolers that sense the
10:40 4 temperature of the fluid as it's exiting the Guntner
10:40 5 coolers. And based upon that temperature, they adjust
10:40 6 the fan speed. This is in the Guntner motor managing
10:40 7 manual.
10:40 8 They adjust the speed of the fans to keep
10:40 9 that outlook temperature the same. That outlook
10:40 10 temperature fluid is the temperature of the fluid as
10:41 11 it's going into the tank.
10:41 12 Finally, we get to the Restful API, which
10:41 13 is this idea that we're checking the temperature of the
10:41 14 fluid in the tank by using functionality built into the
10:41 15 miners. These miners, which are just very
10:41 16 sophisticated computers, actually have a couple
10:41 17 different sets of temperature gauges, sensors inside of
10:41 18 the miners. One of those is to measure the temperature
10:41 19 of the PCB board, the printed circuit board. And the
10:41 20 printed circuit board is what's setting up against the
10:41 21 fluid. So that is measuring the temperature of the
10:41 22 fluid.
10:41 23 And based upon that, the system
10:41 24 automatically puts more power on to the miner, if it
10:41 25 can handle warming the fluid similar. If the fluid is
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 46 of 56
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10:41 1 too warm, then it actually powers down the miner; it
10:41 2 has the miner generate less power. That way it adjusts
10:41 3 the amount of heat that is injected into the system,
10:41 4 which is controlling the circulation of both the
10:42 5 primary and the secondary circulation facilities.
10:42 6 So here we just have a lot of issues of
10:42 7 fact as to whether or not Prime Controls is going to be
10:42 8 actually finished. We've got questions of fact as to
10:42 9 how the Guntner is actually managing the fan speed to
10:42 10 control the temperature of the tank; and really, all
10:42 11 gets down to their assertion that the temperature probe
10:42 12 has to be in the tank, which is just not the plain
10:42 13 meaning of this claim.
10:42 14 So with that, I'll turn it back.
10:42 15 MS. BRANNEN: May I respond?
10:42 16 THE COURT: Rebuttal?
10:42 17 Please.
10:42 18 MS. BRANNEN: Thank you.
10:42 19 So I'll try to make five or fewer points.
10:42 20 First, I want to talk about what we did not hear.
10:42 21 Normally, to oppose summary judgment where we would --
10:42 22 you would hear the plaintiff saying, This is what I
10:42 23 think the plain meaning of this limitation is, and this
10:43 24 is the evidence I'm pointing you to, Judge, where a
10:43 25 reasonable jury could find that the temperature of the
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 47 of 56
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10:43 1 fluid in the tank is part of the -- is adapted to
10:43 2 control both of these variables.
10:43 3 We've never heard that.
10:43 4 We've heard them saying that I'm asking
10:43 5 you to give an overly narrow claim construction. I'm
10:43 6 not. But they need to be doing something. If they're
10:43 7 not measuring it with a sensor in the tank, they need
10:43 8 to be explaining what evidence there is that we do
10:43 9 anything like using that temperature of the fluid in
10:43 10 the tank to coordinate the operation -- to be adapted
10:43 11 to coordinate the operation of two different control
10:43 12 facilities.
10:43 13 And I didn't hear counsel give an
10:43 14 explanation of what that limitation means or what
10:43 15 evidence satisfies it.
10:43 16 With respect to Prime Controls -- and
10:43 17 this applies to Prime Controls and the Kelvion coolers
10:43 18 where they were going to install sensors but never did.
10:43 19 The most -- this is where we heard counsel try to point
10:43 20 to evidence, but he points to some unidentified
10:44 21 deposition testimony that I'm not sure was even in the
10:44 22 opposition brief, and is from several years ago, I
10:44 23 believe, saying that at one point Rhodium planned to
10:44 24 have Prime Controls finish its work.
10:44 25 That is of no moment now.
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:44 1 If we're going to have a trial now, we
10:44 2 can't have an advisory opinion about a system that
10:44 3 isn't in place. And that would -- even if we could,
10:44 4 that would be an enormous waste of resources. We need
10:44 5 to have a trial over the system as it exists now. And
10:44 6 Mr. Kolegraff is not pointing to any evidence that all
10:44 7 Rhodium needs to do is turn on the switch. The
10:44 8 evidence is to the contrary.
10:44 9 Their own evidence that they cite to this
10:44 10 Court is that none of the sensors is wired in. Their
10:44 11 expert concedes that the system is incapable of
10:44 12 measuring temperature. We really ought not to have a
10:44 13 trial over Prime Controls and Kelvion, which may never
10:44 14 be finished, may be changed. It's not the province of
10:45 15 federal courts to have a trial over something that
10:45 16 might happen with a system in the future.
10:45 17 There also is no evidence of how these
10:45 18 sensors, which are nowhere near the tank containing the
10:45 19 bitcoin miners, if they were operational, would be used
10:45 20 to coordinate the operation of both the fans and the
10:45 21 coolers. That's what they say they would do, but how
10:45 22 would that be adapted to coordinate the operation of
10:45 23 what they say counts as the primary circulation
10:45 24 facility, the pumps and the pipes?
10:45 25 We didn't hear that. We won't hear that,
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:45 1 from them or their expert, because they have no
10:45 2 evidence of that. And they haven't tried to point Your
10:45 3 Honor to that evidence now.
10:45 4 The third point I'd like to make is about
10:45 5 Guntner. Mr. Kolegraff misstated the record. I will
10:45 6 show -- this is their opposition brief, Docket 164.
10:46 7 Near the end, I think we're at Page 21. Yeah.
10:46 8 Page 21.
10:46 9 The Guntner coolers -- which he
10:46 10 acknowledges are outside the building -- the
10:46 11 temperature sensors there sense the temperature -- I'm
10:46 12 quoting from their brief -- sense the temperature of
10:46 13 the dielectric fluid flowing out of the evaporative
10:46 14 cooler.
10:46 15 The job of that cooler is to cool. So
10:46 16 it's obviously not the same as the temperature of the
10:46 17 liquid when it's in the tank with the miners. And
10:46 18 their expert concedes as much, and they have completely
10:46 19 abandoned any effort to explain how it's
10:46 20 insubstantially different or how, under the doctrine of
10:46 21 equivalents, this theory could survive.
10:46 22 And the second thing about Guntner, all
10:46 23 they say at that page of their brief is that the sensor
10:46 24 there in that Guntner cooler is adapted to adjust the
10:46 25 cooler's fan speed. Okay. So they have evidence to
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:47 1 get to the jury on one of the two circulation
10:47 2 facilities that they need.
10:47 3 But we didn't even hear Mr. Kolegraff
10:47 4 point to any evidence about coordination of the primary
10:47 5 facility, the pumps and the pipes, because Guntner,
10:47 6 there is no evidence from which a reasonable juror
10:47 7 could conclude that this claim limitation is satisfied.
10:47 8 And finally, on Restful API, I will say,
10:47 9 we heard attorney argument, but all they're really
10:47 10 saying is that Rhodium can monitor the temperature of
10:47 11 the chips. They're not pointing to any evidence that
10:47 12 the chip temperature or the PCB board temperature is
10:47 13 actually adapted to coordinate the operation of
10:47 14 anything that they've pointed to as the primary or
10:47 15 secondary circulation facilities.
10:47 16 And to -- just to conclude, at minimum,
10:47 17 Your Honor, I hope we have at least made the case
10:47 18 narrower on doctrine of equivalents, because they did
10:47 19 not -- they can't save that by just saying, Oh, but we
10:47 20 attached our expert report.
10:48 21 Well, our brief went through the expert
10:48 22 report and explained why what the expert said couldn't
10:48 23 count -- wasn't enough to get to a jury on doctrine of
10:48 24 equivalents. And they made no attempt to defend that,
10:48 25 and they shouldn't get to revive it now.
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:48 1 MR. KOLEGRAFF: Your Honor?
10:48 2 THE COURT: Yes, sir.
10:48 3 MR. KOLEGRAFF: May I address those
10:48 4 points or...
10:48 5 Yes. So you asked if we ever described
10:48 6 where we get our plain meaning that the temperature
10:48 7 probe does not have to be in the tank. I don't want to
10:48 8 repeat myself, but yes. We did have evidence that
10:48 9 we've shown the Court today.
10:48 10 For example, Figure 4 and Figure 12 of
10:48 11 the patent shows that the sensors don't have to be in
10:48 12 the tank. Figure 13 actually shows that you could have
10:48 13 the sensors on the fluid lines and the reservoir. You
10:48 14 could have it on the -- on the coolant lines. You
10:48 15 could have it in the primary. You could have it in the
16 secondary.
10:48 17 You can put that -- those temperature
10:48 18 probes wherever you want them and still control the
10:48 19 primary and secondary circulation of those.
10:48 20 Something we have to understand when we
10:49 21 look at the Rhodium system, because we're talking about
10:49 22 primary versus secondary, here the primary is the
10:49 23 portion of the system that takes the fluid and flows it
10:49 24 through the tank, which extracts heat from the miner.
10:49 25 The secondary's what happens out at the coolers, where
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U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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10:49 1 you take that fluid and cool it through the evaporative
10:49 2 cooler.
10:49 3 So where do we have to measure? This is
10:49 4 our Point No. 2.
10:49 5 So she's saying we haven't talked about
10:49 6 where we actually take the measurements. Well, if
10:49 7 you're talking about Prime Controls, they take the
10:49 8 measurements all over the place.
10:49 9 Their system has no noninfringing
10:49 10 functionality. It is adapted to take the temperatures
10:49 11 and control the fans.
10:49 12 True. At this exact moment in time the
10:49 13 wires haven't been hooked up, but we have evidence, we
10:49 14 have the e-mail that says they are planning to hook
10:49 15 these things up when they get the chance.
10:49 16 So they are going to use this system at
10:49 17 some point. It's just not believable that you're going
10:49 18 to have millions of dollars worth of control equipment
10:49 19 sitting there, all of these computers, a room full of
10:49 20 computers meant to control this facility, and you're
10:50 21 not going to turn it on.
10:50 22 So again, the same thing with the Prime
10:50 23 Control and the Kelvion. Even though it can't measure
10:50 24 today, it certainly is adapted to.
10:50 25 Now, again, Ms. Brannen said that I
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 53 of 56
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10:50 1 misquoted how the Guntner works. I thought I got that
10:50 2 right, because I do understand that what's flowing --
10:50 3 what we are measuring is the output of the Guntner
10:50 4 cooler. That is true.
10:50 5 And that -- and I think I pointed out
10:50 6 that the output of the Guntner cooler is actually the
10:50 7 input to the tank.
10:50 8 So we are measuring the fluid temperature
10:50 9 of the temperature in the tank. It's just we're
10:50 10 measuring that at the input line rather than the output
10:50 11 line.
10:50 12 So she asked: How is that coordinating
10:50 13 primary and secondary?
10:50 14 Well, you have the fans on the Guntner
10:50 15 cooler, which are adjusting to keep that output at a
10:50 16 certain temperature or temperature range to make sure
10:50 17 the miners are being cooled. That is affecting the
10:51 18 temperature of the fluid as it flows through the
10:51 19 primary system and through the secondary system.
10:51 20 We are coordinating the control of the
10:51 21 facilities by using the output temperature from that
10:51 22 Guntner cooler.
10:51 23 As far as the Restful API, I think we've
10:51 24 shown pretty strongly in the expert report that we are
10:51 25 measuring at a temperature of the fluid using the PCB
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 54 of 56
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10:51 1 inside the miner itself, and then that is used to reset
10:51 2 the miner to either increase power if it can be run
10:51 3 warmer or decrease power if you need it to run cooler.
10:51 4 So I think we've shown this in all of it.
10:51 5 Again, there's a -- plenty of genuine issues of fact
10:51 6 here for denying this motion.
10:51 7 THE COURT: I'll be back in a few
10:51 8 seconds.
10:51 9 (Pause in proceedings.)
10:54 10 THE COURT: The Court is going to grant
10:55 11 the motion for summary judgment of noninfringement. I
10:55 12 think that fully takes care of the case for the time
10:55 13 being.
10:55 14 I'm not going to take up the motions in
10:55 15 limine given my ruling on that motion, which I think
10:55 16 obviates the need for a trial at this time.
10:55 17 Is there anything else we need to take up
10:55 18 today?
10:55 19 MR. KOLEGRAFF: Your Honor, would we be
10:55 20 able to readdress this -- after we get Pokharna's
10:55 21 report redone, would we be able to readdress this issue
10:55 22 on the motion for summary judgment?
10:55 23 THE COURT: Well, you know, you have --
10:55 24 you've had your chance, but obviously, it's a fairly
10:55 25 severe ruling. Let me talk to my clerks and see if
KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 55 of 56
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10:55 1 they think anything additional that an expert would say
10:56 2 might benefit us. And if it is, we'll let you know.
10:56 3 As of right now, I don't think it would.
10:56 4 So anything besides that?
10:56 5 MR. SMITH: Your Honor, if I could ask
10:56 6 one more question about the Court's ruling.
10:56 7 There's been a fair amount of argument
10:56 8 today about how the systems are today versus after how
10:56 9 the systems are turned on or wired or whatever.
10:56 10 So I think we'd want to confirm the scope
10:56 11 of the Court's ruling so we would know whether a claim
10:56 12 against the facilities, once they're put into
10:56 13 operation, would be affected by the Court's ruling
10:56 14 today, or would that be a different set of facts?
10:56 15 THE COURT: That would be a different set
10:56 16 of facts. I don't know --
10:56 17 MR. SMITH: Thank you, Your Honor.
10:56 18 THE COURT: Yeah. I don't know that it
10:56 19 would change the ruling ultimately, but, you know, that
10:56 20 clearly is an issue in this case.
10:56 21 MR. SMITH: Okay. Thank you, Your Honor.
10:56 22 THE COURT: Okay. Have a good day. Take
10:56 23 care.
10:56 24 (Hearing adjourned.)
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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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1 UNITED STATES DISTRICT COURT )
2 WESTERN DISTRICT OF TEXAS )
3
4
5 I, Kristie M. Davis, Official Court
6 Reporter for the United States District Court, Western
7 District of Texas, do certify that the foregoing is a
8 correct transcript from the record of proceedings in
9 the above-entitled matter.
10 I certify that the transcript fees and
11 format comply with those prescribed by the Court and
12 Judicial Conference of the United States.
13 Certified to by me this 11th day of April
14 2024.
15
/s/ Kristie M. Davis
16 KRISTIE M. DAVIS
Official Court Reporter
17 800 Franklin Avenue
Waco, Texas 76701
18 (254) 340-6114
10:56 [email protected]
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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)