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 3 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 4 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 5 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 7 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 8 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 10 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 12 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 13 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 14 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 15 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 16 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 17 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. 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 18 of 56 18 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 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 19 of 56 19 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. 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 20 of 56 20 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 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 21 of 56 21 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 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 22 of 56 22 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. 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 23 of 56 23 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 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 24 of 56 24 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 -- 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 25 of 56 25 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. 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 26 of 56 26 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 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 27 of 56 27 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 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 28 of 56 28 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. 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 29 of 56 29 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 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 30 of 56 30 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 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 31 of 56 31 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 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 32 of 56 32 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 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 33 of 56 33 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 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 34 of 56 34 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 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 35 of 56 35 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. 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 36 of 56 36 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 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 37 of 56 37 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 38 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 39 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. 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 40 of 56 40 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 41 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 42 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) Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 43 of 56 43 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 44 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 45 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 46 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 47 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) Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 48 of 56 48 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, 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 49 of 56 49 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) Case 6:22-cv-00050-ADA Document 187 Filed 04/11/24 Page 50 of 56 50 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. 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 51 of 56 51 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 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 52 of 56 52 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 53 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 54 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 55 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.) 25 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 56 of 56 56 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 kmdaviscsr@yahoo.com 19 20 21 22 23 24 25 KRISTIE M. DAVIS, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)