Judge Corley again cut something short ("next question") by clarifying Professor Carlton read the contract Microsoft offered to Sony, even if it's not in the appendix of his report.

Another FTC attempt to gain mileage failed.

🧵123/X

— Florian Mueller (@FOSSpatents) June 28, 2023

FTC wanted to know whether Professor Carlton performed economic analysis of terms of Microsoft's offer to Sony. But as he explains now, he didn't do that and didn't have to as the offer is consistent with commercial terms of existing agreements.

🧵125/X

— Florian Mueller (@FOSSpatents) June 28, 2023

So Judge Corley just again had to explain to the FTC what the Carlton report means in a certain context where contracts are referenced.

🧵126/X

— Florian Mueller (@FOSSpatents) June 28, 2023

FTC wants Professor Carlton to confirm he did not confirm the Sony-ZeniMax Ghostwire terms to the terms of Microsoft's offer to Sony.

🧵128/X

— Florian Mueller (@FOSSpatents) June 28, 2023

Professor Carlton believes there may be a misunderstanding here and with respect to the revenue split he was referring specifically to Call of Duty.

We all know that Activision got special terms from Sony for CoD (publisher-friendlier than otherwise).

🧵130/X

— Florian Mueller (@FOSSpatents) June 28, 2023

The FTC is still nowhere near getting an injunction, but based on how this examination of Professor Carlton has gone so far, it's possible that Judge Corley is now skeptical of parts of his expert testimony. That still wouldn't make a difference in the end.

🧵138/X

— Florian Mueller (@FOSSpatents) June 28, 2023

All that Microsoft needs to do is identify issues with the FTC's economic expert testimony. I believe that was already achieved just through the cross-examination of the FTC's expert. Plus, Dr. Bailey's testimony is likely to be deemed reliable and relevant.

🧵140/X

— Florian Mueller (@FOSSpatents) June 28, 2023

Judge Corley to Professor Carlton: What were you aware of then when you wrote your report and formed your opinion?

Like I said, she does appear somewhat skeptical of his work, but again, even if so, that will not be outcome-determinative.

🧵141/X

— Florian Mueller (@FOSSpatents) June 28, 2023

When Professor Carlton wanted to elaborate on an answer after saying "correct", Judge Corley cut him short: "correct" so that they could move on

🧵143/X

— Florian Mueller (@FOSSpatents) June 28, 2023

FTC done with examination, now Microsoft lawyer asking a few questions.

First clarification: primary focus of Carlton's work was evaluation of reliability of FTC expert's share and foreclosure models.

🧵145/X

— Florian Mueller (@FOSSpatents) June 28, 2023

Professor Carlton explains that Professor Lee's "share" model is actually a demand model. What matters according to Professor Carlton is not make share but a change in Xbox sales as a result of hypothetical foreclosure.

🧵146/X

— Florian Mueller (@FOSSpatents) June 28, 2023

Done with Carlton testimony. Now talking about how to organize the remaining testimony tomorrow. Nintendo's Singer by video. In 10 minute they'll discuss confidentiality in closed session. So the plan is to have evidence finished by noon and closing argument at 2:30 PM.

🧵148/X

— Florian Mueller (@FOSSpatents) June 28, 2023