Filed on behalf of:
`
`Patent Owner SightSound Technologies, LLC
`
`By: David R. Marsh, Ph.D.
`
`Kristan L. Lansbery, Ph.D.
`ARNOLD & PORTER LLP
`555 12th Street, N.W.
`Washington, DC 20004
`Tel: (202) 942-5068
`Fax: (202) 942-5999
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`APPLE INC.,
`
`Petitioner,
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC,
`
`Patent Owner.
`_______________
`
`Case CBM2013-00020
`Patent 5,191,573
`
`_______________
`
`UNOPPOSED MOTION TO EXPUNGE AND
`FILE CORRECTED EXHIBITS
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`

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`
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`I. Statement of the Precise Relief Requested
`
`Pursuant to 37 C.F.R. § 42.22(a)(1) and for the reasons set forth below,
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`Patent Owner SightSound Technologies, LLC (“Patent Owner”) respectfully
`
`requests that the Board: (1) expunge Exhibits 2110, 2117, 2125, 2147, and 2153
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`from the record; and (2) file in their place corrected Exhibits 2110, 2117, 2125,
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`2147, and 2153.
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`II. Statement of Material Facts
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`1.
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`Patent Owner filed its Response to the Petition and related Exhibits on
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`January 3, 2014.
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`2.
`
`On March 4, 2014, Patent Owner noticed that Exhibits 2110, 2117,
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`2125, 2147, and 2153, as filed with the Response to the Petition, contained small
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`portions of illegible and omitted text.
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`3.
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`On March 5, 2014, Patent Owner alerted Counsel for Petitioner Apple
`
`Inc. (“Counsel for Petitioner”) that some Exhibits may contain illegible and
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`omitted text. Subsequently, Counsel for Petitioner agreed not to oppose the
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`present Motion.
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`-1-
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`4.
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`On March 14, 2014, Patent Owner emailed the Board requesting
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`authorization to file this Unopposed Motion to Expunge and File Corrected
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`Exhibits.
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`5.
`
`On March 14, 2014, the Board authorized such a filing in an email to
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`myself, David R. Marsh, lead counsel for Patent Owner.
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`6.
`
`Patent Owner submits herewith, as attachments to the present Motion,
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`corrected versions of Exhibits 2110, 2117, 2125, 2147, and 2153, which may be
`
`filed into the record should the Board grant the present Motion.
`
`III. Statement of the Reasons for the Relief Requested
`
`Patent Owner files the present Motion in accordance with the Board’s
`
`authorization on March 14, 2014. The corrected Exhibits serve to clarify and
`
`complete the record before the Board and do not introduce new material into the
`
`proceeding. For the foregoing reasons, Patent Owner respectfully requests that the
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`Board: (1) expunge Exhibits 2110, 2117, 2125, 2147, and 2153 from the record;
`
`and (2) file in their place corrected Exhibits 2110, 2117, 2125, 2147, and 2153.
`
`
`
`Dated: March 19, 2014
`
`
`
`
`
`
`
`Respectfully submitted,
`
` By:
`
`/David R. Marsh/
`David R. Marsh, Ph.D.
`Kristan L. Lansbery, Ph.D.
`ARNOLD & PORTER LLP
`555 12th Street, N.W.
`
`-2-
`
`

`
`Washington, DC 20004
`Tel: (202) 942-5068
`Fax: (202) 942-5999
`
`Attorneys for Patent Owner
`SightSound Technologies, LLC
`
`
`
`
`-3-
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`

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`
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the UNOPPOSED MOTION TO
`
`EXPUNGE AND FILE CORRECTED EXHIBITS, including the attached
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`corrected Exhibits 2110, 2117, 2125, 2147, and 2153, was served on March 19,
`
`2014 to the following Counsel for Petitioner via e-mail, pursuant to the parties’
`
`agreement concerning service:
`
`J. Steven Baughman, Lead Counsel
`Ching-Lee Fukuda
`ROPES & GRAY LLP
`Prudential Tower
`800 Boylston Street
`Boston, Massachusetts 02199-3600
`Steven.Baughman@ropesgray.com
`Ching-Lee.Fukuda@ropesgray.com
`ApplePTABServiceSightSound@ropesgray.com
`
`Attorneys for Petitioner Apple Inc.
`
`/David R. Marsh/
`David R. Marsh (Atty. Reg. No. 41,408)
`ARNOLD & PORTER LLP
`555 12th Street, N.W.
`Washington, D.C. 20004
`Tel: (202) 942-5068
`Fax: (202) 942-5999
`
`-4-
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`

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`CORRECTED EXHIBIT 2110
`CORRECTED EXHIBIT 21 10
`
`
`
`
`
`

`
`SIGHTSOUND TECHNOLOGIES, LLC
`EXHIBIT 2110
`CBM2013-00020 (APPLE INC. v. SIGHTSOUND TECHS., LLC)
`PAGE 000001
`
`

`
`I, Scott Sander, hereby declare as follows:
`
`1.
`
`I am a member of the managing board of SightSound Technologies,
`
`LLC (“SightSound”).
`
`I provide this Declaration in support of SightSound’s
`
`Responses to Apple Inc.’s Petitions for Covered Business Method Patent Review of
`
`United States Patent Nos. 5,919,573 (“the ‘S73 Patent”) and 5,966,440 (“the ‘440
`
`Patent”) (collectively “the Patents”).
`
`I am over the age of eighteen, have personal
`
`knowledge of the facts set forth below unless otherwise stated, and if called to
`
`testify as a witness in this matter, I could and would testify competently thereto.
`
`2.
`
`In 1995, together with Arthur Hair (the inventor of the Patents) I
`
`founded Parsec Sight/Sound, Inc. and Digital Sight/Sound,
`
`Inc., SightSound’s
`
`predecessors in interest, to commercialize Mr. Hair’s invention. Mr. Hair assigned
`
`all of his ownership rights in the ‘S73 Patent, and every subsequent patent to issue
`
`from that same disclosure, to SightSound. Shortly after obtaining the ‘S73 Patent,
`
`Mr. Hair wrote to John Sculley, the then-Chairman of the Board and CEO of Apple,
`
`informing him of the ‘S73 Patent, which Mr. Hair stated would “revolutionize the
`
`video rental industry and prerecorded music industry, among others, and will serve
`
`as a catalyst to propel the multimedia industry into the 21‘'‘ century.” Attached as
`
`-1-
`
`PAGE 000002
`
`PAGE 000002
`
`

`
`3.
`
`In the late 1990s and early 2000s, SightSound developed an online
`
`commercial system for the sale of digital music and video files which was found at
`
`SightSound.com.
`
`4.
`
`In 1995, SightSound became the first company to offer digital
`
`downloads of music through electronic sale over the Internet, when it offered the
`
`album (as well as individual songs) from the band The Gathering Field’s debut
`
`album “The Gathering Field.” Attached as exhibit 21 12 is a true and correct copy
`
`of a screen shot from the SightSound.com website in 1995 offering the Gathering
`
`Field album for sale for $6.00, as well as offering individual songs from the album
`
`for sale for $1.00. Page numbers and an exhibit label have been added to this
`
`document but no other alterations have been made. SightSound.com offered free 30
`
`second previews of the music being offered for sale. Id. (“Free Sample: 5.4 MB:
`
`30 second clip”). SightSound.com also showed the cover art for music being
`
`offered for sale and provided reviews and press coverage regarding the album as
`
`shown in exhibit 2112.
`
`5.
`
`Shortly after SightSound began offering The Gathering Field’s album
`
`for sale, SightSound temporarily ceased selling music on its website due to
`
`PAGE 000003
`
`PAGE 000003
`
`

`
`model.
`
`I believe the music labels were not ready to adopt such a radical change in
`
`the mid to late 1990s, as the new model would have required them to migrate away
`
`from production of physical media (such as CD5) and transition to digital formats,
`
`as well as sell individual songs instead of entire albums which I understood they
`
`believed would be less profitable.
`
`I also understood that the music labels were
`
`reluctant to embrace the new model as they were concerned about unauthorized
`
`copying of their content. For these reasons, I understood that content holders were
`
`reluctant to license their content to SightSound for sale over the Internet.
`
`6.
`
`SightSound.com initially offered individual songs for sale for $1.00.
`
`By
`
`1998, however, Sightsound began offering songs
`
`for $0.99.
`
`The
`
`SightSound.com website presented a menu of music to select for purchase by
`
`showing the cover art of particular albums in a table format. Attached as exhibit
`
`2113 hereto is a true and correct copy of a screen shot from SightSound.com from
`
`1998-1999 reflecting music for sale at SightSound.com. Page numbers and an
`
`exhibit label have been added to this document but no other alterations have been
`
`made.
`
`In l999, SightSound offered the first sale of a movie over the Internet
`
`(Darren Aronofsl<y’s movie “Pi”).
`
`PAGE 000004
`
`PAGE 000004
`
`

`
`website can still be found at http://www.sightsound.co1m'.
`
`Some specific press
`
`articles and television coverage about Mr. Hair’s invention and SightSound.com are
`
`under the drop down menu “In the News.” As just a few examples of the press
`
`coverage SightSound received, attached as exhibit 2114 is a true and correct copy
`
`of a November 1998 article from the Pittsburgh Business Times entitled “Intemet
`
`Firm Pioneers Downloadable Music Sales.’
`
`Page numbers and an exhibit label
`
`9
`
`have been added to this document, and text has been organized to fit on an 8 1/2” x
`
`11” page, but no other alterations have been made. Further, the September 6, 1999
`
`issue of Time magazine featured SightSound.com in an article entitled “Movies Hit
`
`the Net.” Attached as exhibit 2115 is a true and correct copy of the September 1999
`
`article. Page numbers and an exhibit label have been added to this document but no
`
`other alterations have been made. Further, in January 2000, Yahoo Internet Life
`
`magazine featured SightSound.com as the lead story in its article on the 100 best
`
`sites for 2000. Attached as exhibit 2116 is a true and correct copy of the January
`
`2000 Yahoo Internet Life magazine article. Page numbers and an exhibit label have
`
`been added to this document but no other alterations have been made.
`
`PAGE 000005
`
`PAGE 000005
`
`

`
`over the Internet.
`
`I informed Mr. Jobs that “we believe that the download sale of
`
`movies and music will become the consumers’ method of choice,” and further, that
`
`the Mac OS (operating system) required specific functionality to support the
`
`download sales of music and movies.
`
`I also suggested that there could be an
`
`opportunity for Apple to participate in the “manufacture of an open platform audio
`
`player.” I further attached a graphical schematic detailing how the SightSound.com
`
`servers stored content, permitted the downloaded content to be received by the
`
`consumer, and could be used on a handheld device that SightSound suggested that
`
`Apple develop. Attached as exhibit 21 17 is a true and correct copy of my January
`
`15, 1999 letter to Mr. Jobs with the attached schematic. Page numbers and an
`
`exhibit label have been added to this document but no other alterations have been
`
`made.
`
`9.
`
`On or around February 3, 1999, SightSound was contacted by Apple
`
`with a proposal to discuss the potential business described in my January 15, 1999
`
`letter. The letter from Apple requested that a meeting take place on a non-
`
`confidential and non-obligation basis and asked SightSound to confirm that
`
`understanding. With full confidence in the protection afforded SightSound by
`
`PAGE 000006
`
`PAGE 000006
`
`

`
`of Apple to me. Page numbers and an exhibit label have been added to this
`
`document but no other alterations have been made.
`
`10.
`
`On or around February 26, 1999, Mr. Hair and I met with Mark
`
`Gavini and Tom Weyer from Apple in Los Angeles.
`
`I understood that Mr. Weyer
`
`was an Apple engineer and that Mr. Gavini was Partnership Manager of Worldwide
`
`Developer Relations. During that meeting, Mr. Hair and I explained our patents,
`
`expressed our belief in the superiority of our download purchase model versus
`
`streaming subscription services, and made several requests of Apple, notably that
`
`they manufacture a hand held portable player, and re—architect their operating
`
`system. We discussed in more detail the written schematic previously provided to
`
`Steve Jobs. We requested enhancements to Apple’s operating system to bolster
`
`digital rights management (DRM) capabilities—specif1cally encryption—to permit
`
`the sale of digital audio and video for download on Mac computers. After a lengthy
`
`discussion,
`
`I recall Messrs. Gavini and Weyer concluding that it would take an
`
`entire re-write of the Mac operating system to adequately support the level of
`
`encryption that would be needed to satisfy the media and entertainment industry.
`
`PAGE 000007
`
`PAGE 000007
`
`

`
`a movie into a handheld pocket personal computer; the movie “Quantum Project”
`
`was sold into the iPAQ, which was sold by Compaq Computer Corporation.
`
`Attached as exhibit 2119 is a true and correct copy of a screen shot from
`
`SightSound.co1n
`
`from 2001
`
`reflecting the Quantum Project
`
`for
`
`sale
`
`at
`
`SightSound.com. Page numbers and an exhibit label have been added to this
`
`document but no other alterations have been made.
`
`12.
`
`SightSound continued to promote SightSound.com and the patented
`
`invention in the early 2000s. However, we were unable to successfully convince
`
`the major record labels that music and video distribution via a digital online
`
`download format was the future of the music industry and obtain licenses to sell
`
`their content.
`
`I believe that the record labels were resistant for the reasons
`
`mentioned above, and were slow to understand the market potential for online
`
`digital music and video sales. Without sufficient licenses for content to sell through
`
`SightSound.com,
`
`it was difficult
`
`to generate significant revenue from digital
`
`download sales.
`
`13.
`
`In 2002, paradoxically, our Patents, the very things that enabled us to
`
`raise the capital to launch the download industry, now were draining us of cash,
`
`PAGE 000008
`
`PAGE 000008
`
`

`
`unwilling for the reasons outlined above, but also because SightSound.c0m sold
`
`only to users of Microsoft’s’ operating system, which the record labels feared as a
`
`monopoly with its 96% market share, was of further concern to the record labels. In
`
`contrast, Apple's 4% share made it a far less threatening partner to the record
`
`labels, or so they thought, so they were willing to grant Apple licenses to their
`
`content. Time magazine confirmed my understanding on this point, stating that the
`
`record labels gave Apple a “sweet deal” because “Apple with its miniscule share of
`
`the computer market was never going to be a real distribution threat.” Attached as
`
`exhibit 2120 is a true and correct copy of the November 17, 2003 Time magazine
`
`article “Invention of the Year.” Page numbers and an exhibit label have been added
`
`to this document but no other alterations have been made.
`
`14.
`
`In 2002, SightSound ceased its own commercial operations, as
`
`SightSound.com was unable to generate sufficient revenue to fimd SightSound’s
`
`expenses, including the costs associated with defending the Patents.
`
`PAGE 000009
`
`PAGE 000009
`
`

`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Sworn this fl1" day of December, 2013 at Pittsburgh, Pennsylvania.
`Scott Sander
`
`Scott Sander
`
`PAGE 000010
`
`PAGE 000010
`
`

`
`
`
`CORRECTED EXHIBIT 2117
`CORRECTED EXHIBIT 21 17
`
`
`
`
`
`

`
`SIGHTSOUND TECHNOLOGIES, LLC
`EXHIBIT 2117
`CBM2013-00020 (APPLE INC. v. SIGHTSOUND TECHS., LLC)
`PAGE 000001
`
`

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`
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`SlGHTSCJUND.CC)l\/l
`
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`
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`
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`
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`
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`PAGE 000002
`
`

`
`
`
`CORRECTED EXHIBIT 2125
`CORRECTED EXHIBIT 2125
`
`
`
`
`
`

`
`SIGHTSOUND TECHNOLOGIES, LLC
`EXHIBIT 2125
`CBM2013-00020 (APPLE INC. v. SIGHTSOUND TECHS., LLC)
`PAGE 000001
`
`

`
`DAVID M. SCHWARTZ
`
`P
`
`E
`
`A
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`R
`
`A
`
`N
`
`C
`
`E
`
`S
`
`FOR THE PLAINTIFF:
`
`KENYON & KENYON
`
`BY:
`
`BRIAN S. MUDGE, ESQ.
`
`(202) 220-4214 direct
`
`R.
`
`PAUL ZEINEDDIN, ESQ.
`
`(202) 220-4223 direct
`
`1500 K Street, N.W., Suite 700
`
`Washington, D.C.
`
`20005-1257
`
`(202) 220-4200 main
`
`(202) 220-4201 fax
`
`bmudge@kenyon.com
`
`pzeineddin@kenyon.com
`
`GROSSMAN & COTTER
`
`PAGE 000002
`
`PAGE 000002
`
`

`
`DAVID M. SCHWARTZ
`
`E
`
`S
`
`(Continued)
`
`FOR THE DEFENDANTS CDNOW,
`
`INC. AND CDNOW ONLINE,
`
`INC.:
`
`WILSON, SONSINI, GOODRICH & ROSATI
`
`BY:
`
`DAVID BERL, ESQ.
`
`(650) 320-4925 direct
`
`MONICA MUCCHETTI, ESQ.
`
`(AS NOTED)
`
`MICHAEL BARCLAY, ESQ.
`
`(AS NOTED)
`
`(650) 320-4849 direct
`
`650 Page Mill Road
`
`Palo Alto, California 94304-1050
`
`(650) 493-9300 main
`
`(650) 565-5100 fax
`
`dberl@wsgr.com
`
`mmucchetti@wsgr.com
`
`mbarclay@wsgr.com
`
`ALSO PRESENT:
`
`CHRISTOPHER J. REESE
`
`ANSEL SCHWARTZ
`
`GROSSMAN & COTTER
`
`PAGE 000003
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`PAGE 000003
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`!DAVI!D M;
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`SCI-lWA_v‘R—TZ
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`I
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`1
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`4,
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`ALSO-PRESENT mcontinueqmz
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`‘
`
`EDAN MOmTAZ‘?IDEO PRQDUCTIONSV LLC
`
`By:
`
`JOSH PORTER,'VIDEOCRAPHER’
`
`:40 27
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`rDew.e.-y ;Bo'ul=e1vard
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`San ~FFra»r}1cisIco~.,N .Calid3o';n_ia :9‘4l 1 6
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`441,5‘)
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`7:31-1.3.'0OA main
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`m4L5J‘731—0824 fax
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`GRosSMAN.&-GOTTER
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`-,,_
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`.
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`H
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`"
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`‘
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`-v
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`PAGE 000004
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`PAGE 000004
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`

`
`DAVID M. SCHWARTZ
`
`EXAMINATION BY:
`
`Mr. Berl
`
`Mr. Mudge
`
`DEPOSITION EXHIBITS:
`
`1
`
`Copy, preliminary specification sheet,
`
`"CompuSonics DSP—lO00 Digital Disk
`
`Recorder/Player"
`
`CDNO26281
`
`Copy, application notes,
`
`"DSP 1000
`
`Digital Audio Disk Recorder"
`
`CDNO26489—490
`
`Copy,
`
`"DSP 1000 Audio Computer Owners
`
`Guide"
`
`CDN025708—767
`
`Copy, 9/1/86 article from Electronic
`
`Engineering Times,
`
`"Optical—Disk—
`
`Based Digital Audio System Premieres"
`
`CDNO26284
`
`GROSSMAN & COTTER
`
`PAGE 000005
`
`PAGE 000005
`
`

`
`DAVID M. SCHWARTZ
`
`DEPOSITION EXHIBITS
`
`5
`
`Copy, front and back of postcard,
`
`"The DSP 1000 Audio Computer"
`
`CDNO26285
`
`Copy, AES preprint, "Specifications
`
`and Implementation of a Computer
`
`Audio Console for Digital Mixing
`
`and Recording," by David M. Schwartz
`
`CDN025778—786
`
`Copy, AES preprint,
`
`"A High Speed
`
`Telecommunications Interface for
`
`Digital Audio Transmission and
`
`Reception," by Hyun Heinz Sohn
`
`CDN025772-777
`
`Videotape depicting a lecture given
`
`by David M. Schwartz
`
`CDN026253
`
`COPY: excerpt
`
`from April 1985 PC
`
`World magazine,
`
`"Hi—Fi Floppy"
`
`CDNO26305-312
`
`GROSSMAN & COTTER
`
`PAGE 000006
`
`PAGE 000006
`
`

`
`DAVID M. SCHWARTZ
`
`DEPOSITION EXHIBITS
`
`10
`
`Copy, "CompuSonics DSP 2002 Version
`
`1.00 Preliminary User Manual, August
`
`28, 1985"
`
`CDN025668-707
`
`Confidential
`
`Copy, 5/21/85 Shareholder letter from
`
`110
`
`David M. Schwartz
`
`CDN026261—262
`
`Copy, 10/10/85 Shareholder letter
`
`from David M. Schwartz
`
`CDNO26382—383
`
`Copy, paper "Toward Electronic
`
`Delivery of Music: Sending and
`
`Receiving High Fidelity Digital Music"
`
`CDN025867-873
`
`Copy, 6/8/84 article from Pro Sound
`
`141
`
`News, "Compusonics Bows Totally
`
`Digital"
`
`CDNO2627l
`
`GROSSMAN & COTTER
`
`PAGE 000007
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`PAGE 000007
`
`

`
`DAVID M, SCHWARTZ
`
`DEPOSITION EXHEBITS
`
`15
`
`Copy, "Pay Per Listen Cable Audio
`
`System"
`
`rCDNO2%3T9
`
`Copy,;download.f;omUDIALOGmR)Fi1e
`
`headed~with 12/29M86 Forbes article,
`
`"HLgh—fidElity heavem"
`
`CDN027lG8-ITO
`
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`*GROSSMAN‘& COTTER
`
`PAGEommo§
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`PAGE 000008
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`

`
`DAVID M. SCHWARTZ
`
`BE IT REMEMBERED that, pursuant to
`
`notice, and on Thursday, February 1, 2001, commencing
`
`at the hour of 9:20 a.m.
`
`thereof, at 601 California
`
`Avenue, Conference Room Baylands 2B, Palo Alto,
`
`California, before me, FRANCES A. WEINROB, a
`
`Registered Merit Reporter, Certified Realtime
`
`Reporter, Certified Realtime Professional, and
`
`Certified Shorthand Reporter,
`
`there personally
`
`appeared DAVID M. SCHWARTZ.
`
`THE VIDEOGRAPHER: Good morning.
`
`This marks the beginning of Videotape 1
`
`the deposition of David Schwartz in the matter of
`
`SightSound.Com Incorporated versus N2K, et al.,
`
`in
`
`the U.S. District Court, Western District of
`
`Pennsylvania, Civil Action No. 98-0118.
`
`Today's date is February 1st,
`
`2001,
`
`and the
`
`time is 9:20 a.m.
`
`The location of this deposition is
`
`601 California Avenue,
`
`Palo Alto,
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`California.
`
`The deposition was noticed by attorneys for
`
`the defendant and the videotape is being produced on
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`behalf of the same.
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`The video operator is Josh Porter,
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`a
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`California Notary Public for the County of San
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`Francisco, employed by Dan Mottaz Video Productions,
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`402 Dewey Boulevard, San Francisco, California 94116.
`
`GROSSMAN & COTTER
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`PAGE 000009
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`PAGE 000009
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`DAVID M. SCHWARTZ
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`09:
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`21:
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`The court reporter today is Fran Weinrob of
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`10
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`Grossman & Cotter.
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`Would counsel present please identify
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`themselves and state whom they represent.
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`MR. MUDGE:
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`I'm Brian Mudge with Kenyon &
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`Kenyon,
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`representing plaintiff Sightsound.
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`MR. ZEINEDDIN: My name's Paul Zeineddin.
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`I
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`am with Kenyon & Kenyon, representing Sightsound.
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`MR. REESE: My name is Christopher Reese.
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`I'm general counsel at Sightsound.
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`MR. SCHWARTZ: Ansel Schwartz,
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`:39
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`self-practitioner representing SightSound.Com.
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`09:
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`MR. BERL: David Berl, Wilson, Sonsini,
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`Goodrich & Rosati, representing defendants CDNOW and
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`O9:
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`CDNOW Online.
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`09:
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`THE VIDEOGRAPHER:
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`If there are no
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`09:
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`stipulations, will the court reporter please
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`09:
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`administer the oath.
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`DAVID M. SCHWARTZ,
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`called as a witness by the defendants, and who, being
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`first duly administered the oath, was thereupon
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`examined and testified as hereinafter set forth.
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`EXAMINATION BY MR. BERL
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`09:22:12
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`24
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`Q.
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`Hello, Mr. Schwartz, my name, as you know,
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`09:22:15
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`25
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`is David Berl.
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`I represent CDNOW and CDNOW Online in
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`GROSSMAN & COTTER
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`PAGE 000010
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`PAGE 000010
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`O9:
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`this case.
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`DAVID M. SCHWARTZ
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`09:
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`Could you state your full name for the
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`record and spell your last name.
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`A.
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`Q.
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`David Michael Schwartz,
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`S—C—H—W—A—R—T—Z.
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`Mr. Schwartz, have you ever lived in
`
`Pennsylvania?
`
`A.
`
`Yes,
`
`I was born in Pittsburgh, Pennsylvania,
`
`How long did you live there?
`
`I
`
`lived there until 1973.
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`So did you go to high school there?
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`Yes.
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`I did all my education through college
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`in Pittsburgh.
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`What high school did you go to?
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`Taylor Alderdice High School
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`in Squirrel
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`Is that outside of Pittsburgh?
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`No, it's in the city.
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`And do you still have family in Pittsburgh?
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`No, no family in Pittsburgh.
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`Could you state your work and home
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`residences.
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`A.
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`Presently my home address is 21 Madera
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`Avenue,
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`San Carlos, California.
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`My work address is
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`1313 Laurel Street, San Carlos, California.
`
`GROSSMAN & COTTER
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`PAGE 00001 1
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`PAGE 000011
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`DAVID M. SCHWARTZ
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`Q.
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`Do you have any current addresses in
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`Pennsylvania?
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`A.
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`No,
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`I do not.
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`Have you ever testified in a case before?
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`Yes,
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`I have.
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`And what case was that?
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`I don't recall the name.
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`It was the State
`
`of Kansas.
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`It was a criminal case involving an oil
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`drilling company in the State of Kansas.
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`Q.
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`A.
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`And what was your role in that case?
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`I was an engineer working for a company that
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`owned some of the oil wells that were involved in the
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`24
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`case.
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`And you actually testified in court?
`
`Yes,
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`I did.
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`And have you ever testified in another case?
`
`Not to the best of my recollection.
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`Have you ever been deposed before?
`
`Yes,
`
`I have, but I can't remember the name
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`Do you know about how long ago it was?
`
`25 years ago maybe.
`
`And what did the case involve? Generally
`
`Q.
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`A.
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`Q.
`
`speaking.
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`A.
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`I don't know if I could even remember.
`
`GROSSMAN & COTTER
`
`PAGE 000012
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`PAGE 000012
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`

`
`DAVID M. SCHWARTZ
`
`Q.
`
`Do you know what your role was,
`
`in what
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`13
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`capacity you were testifying?
`
`A.
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`I was not any kind of an expert witness,
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`I
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`just happened to be a witness to something, and I
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`can't even remember if it was a civil or criminal
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`case.
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`Too long ago.
`
`Q.
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`A.
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`Q.
`
`Do you remember where it was?
`
`In Pittsburgh, Pennsylvania,
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`I believe.
`
`Just since it's been a long time,
`
`I'm going
`
`to go through some ground rules with you about the
`
`deposition process.
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`First of all,
`
`the oath you just took has the
`
`same effect that an oath you would take in court has.
`
`That is, you have to tell the truth and the whole
`
`truth as you would in court.
`
`I noticed you have a box of Kleenexes. Are
`
`you feeling okay?
`
`A.
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`I feel pretty good.
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`I do have what's left
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`09:
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`of a cold.
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`Are you taking any drugs?
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`I took two aspirin before I came here.
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`Do you feel well enough to remember
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`everything today?
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`A.
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`I don't think my cold has affected my
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`GROSSMAN & COTTER
`
`PAGE 000013
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`PAGE 000013
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`DAVID M. SCHWARTZ
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`Q.
`
`Is there any other reason that you don't
`
`14
`
`think you can go forward and testify today?
`
`A.
`
`No,
`
`I'm fine.
`
`I may have to use a Kleenex
`
`occasionally.
`
`Q.
`
`Some of the things we're going to be talking
`
`about
`
`today go way back, so you may not be able to
`
`remember everything,
`
`I would guess.
`
`If that's the
`
`case, you can simply say you don't remember
`
`something. There's nothing wrong with that, and you
`
`can give your best recollection of the events as you
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`09:
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`remember them.
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`09:
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`:00
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`the court reporter, as you see, can't
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`Also,
`
`pick up any physical gestures.
`
`So if the answer to a
`
`question is yes, you'll have to say yes instead of
`
`nodding your head yes or nodding your head no.
`
`Instead,
`
`just say no.
`
`I'm going to ask some questions here in the
`
`morning and, we'll see, it might go through lunch and
`
`a little after that, and then Sightsound will be able
`
`to ask you questions as well, and we'll go as long as
`
`it takes. Hopefully we'll be done by the end of the
`
`day.
`
`What is the highest degree you've earned?
`
`A.
`
`A professional degree in architecture,
`
`bachelor of architecture from Carnegie Melon
`
`GROSSMAN & COTTER
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`University in Pittsburgh, Pennsylvania in 1972.
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`15
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`Q.
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`A.
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`Where are you currently employed?
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`I'm the founder and CEO of Imaginon,
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`a
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`publicly traded technology company in San Carlos,
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`California.
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`:00
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`ll
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`Q.
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`A.
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`What does Imaginon do?
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`Software for Internet —— for networks,
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`Internet and intranet networks. Media software
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`primarily. Video processing and audio processing,
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`and also webpage processing.
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`Q.
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`Is Imaginon involved in transmitting digital
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`audio signals over the Internet?
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`A.
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`To the extent that they accompany video,
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`Q.
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`And are they involved in transmitting any
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`digital audio signals over a network other than the
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`Internet?
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`A.
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`Intranets, which is the same —- using the
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`same protocol that's used on the Internet, but in a
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`local area network.
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`:47
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`Q.
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`And how long have you been employed at
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`Imaginon?
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`A.
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`Well,
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`I started the company,
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`incorporated it
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`in the spring of 1996.
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`So I received my first
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`paycheck probably in July or August of 1996.
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`DAVID M. SCHWARTZ
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`:52
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`Q.
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`And let's go back a little farther. After
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`16
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`university, what was the first full-time job that you
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`had?
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`:16
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`A.
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`I was working —— I went to work for one of
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`my former professors who had a start-up company.
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`I
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`can't remember the full name of the company.
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`Something-Environmental Research,
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`Incorporated.
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`Q.
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`And what was your title there, if you
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