Check this out!
I have a copy of our rebuttal. I cannot post the whole document but read this extract and then tell me when don't have a strong case!
II. SECOND ERROR IN DefsBR - ARGUING DEFENDANTS DO NOT CONTROL DEFENDANTS' EMVSYSTEMS, BASED ON
DEFENDANTS' ERRORS OF: (1) IGNORING THE TESTIMONY OF DEFENDANTS' OWN DECLARANTS MERSCHEN AND AABYE; AND (2) FAILING TO ADDRESS/REFUTE THE CASE LAW ON "CONTROL" (BRIEFED AT SMARTMETRICOB pp34-36) DefsBR(pp3,49-52) errs in arguing that Defendants do not control
Defendants' own EMVsystems. So arguing is (1) contrary to the admissions of Defendants' experts/Rule 30(b)(6) witnesses Merschen and Aabye, and is (2) contrary to the controlling case law. Both the evidence, and case law, are cited
in SmartmetricOB (pp. 10-15,34-36). DefsBR does not refute either that evidence, or the controlling case law.
Defendants forfeit credibility in arguing they do not control Defendants' EMVsystems, when "EMV system" is Defendants' acronym for "Europay Mastercard Visa smartcard processing system."(A03451, paragraph 2, Gussin Decl, which attests Defendants' own documents say "EMV system" refers to "Europay Mastercard Visa smartcard processing system").
SmartmetricOB(ppl3-15) quoted the portion of Merschen's Rule 30(b)(6) deposition testimony(A02674-A02677)l, where Merschen admitted defendant MasterCard sets the standards for all parts of MasterCard's EMVsystems, and admitted that an EMV card can only carry the "MasterCard" logo, if that card complies with all MasterCard's standards:
"Q: Let's go back to your report, Exhibit 100, Doctor, page 6. A:Yes. Go on.
Q: There's a paragraph that begins at the bottom of page 6 and continuestothetopofpage7. ThisparagraphdescribeswhatMasterCard'sroleisinthe EMV system; correct?
A: Correct
Q: It accurately describes MasterCard's role in the EMVs, does it not? A: Table does.
Q: Itsays,amongotherthings,thatMasterCarddefinesprocedures
Smartmetric had filed that same Merschen testimony in Smartmetric's Opposition(A2533-A02850) to Defendants' MSJ on non-infringement
message content and flow for authorization clearly [sic: clearing] and settlement of payment card transactions; right?
A: Yes.
Q: It says that Mastercard sets standards for certain physical and technical aspects o f cards, do you see that?
A: Yes.
Q: The cards we're talking about are EMV cards; right?
A: That is correct.
Q: MasterCard also sets standards for certain technical, meaning card readers; right?
A: That is correct.
Q: And the reason MasterCard sets these standards, you state, is to ensure global interoperability; right?
A: That is correct.
Q: So that any acquirer who deviates from these standards will not be practicing the MasterCard EMV system as you describe it here; correct?
[emphasis added, objections omitted]
THE WITNESS: The cardholder, the issuer, the merchant, the acquirer need to comply with these standards.
Q: So if I have an EMV card and it says MasterCard on it, I can assumethat that card has been—conforms to the standards you've set forth here on pages six and seven o f Exhibit 100; right?
[emphasis added, objection omitted]
THE WITNESS: This card will have been issued by a MasterCard issuer. And as issuer, as a contractual part [sic:party] to MasterCard, will have had to make sure that the card you have been issued complies with MasterCard's requirements, yes.
Q: And only i f cards so issued meet the standards you talk about here on pages six and seven, can the issuer put the MasterCard logo on the card; right?
A: That is correct.
Q: So if the logo is on the card, that means that the card conforms to the standards you've set forth here on pages six and seven; right.
emphasis added, objection omitted]
Q. Go ahead?
A. If the issuer has complied with the rules, yes.
Q. Now, on page 7, the first full paragraph you have there talks about things MasterCard doesn't do like they don't make cards or issue payment cards; right?
A. Right.
Q. When you say they don't make them, you mean they don't manufacture the actual card; right?
A. They don't manufacture, they don't sell, they don't distribute.
Q. But they do say what has to be on the card to conform to MasterCard's standards; correct?
A. They issued specifications that these cards have to comply with, yes."
