In The Matter Of:
`
`APPLE, INC.
`
`"0.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`
`IOHN P. I. KELLY, Ph.D. - Vol. 1
`
`December 4, 2013
`
`Fax: Mfiflfiiflm
`
`MEFIHILL G’OHPQRATIGN
`
`LegaLlnk. Inn.
`
`135 Main Street
`4th WEI-Dr
`Sim Handset). GA 94105
`the: maasxasm
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2326
`
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
`
`
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`APPLE, INC.
`
`"0.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`
`IOHN P. I. KELLY, Ph.D. - Vol. 1
`
`December 4, 2013
`
`Fax: Mfiflfiiflm
`
`MEFIHILL G’OHPQRATIGN
`
`LegaLlnk. Inn.
`
`135 Main Street
`4th WEI-Dr
`Sim Handset). GA 94105
`the: maasxasm
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2326
`
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
`
`
`
`
`
`
`
`
`
`——oOo——
`
`Petitioner,
`
`
`
`
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`
`
`
`VS.
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`
`:GHTSOUN:
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`13 SiAiiS EAiiNi AND i<ADiMARK GEE C1
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`
`
`fl
`iHfi BAifiNi
`iRHAL AND APBfiAT
`fiOAR
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`
`
`
`
`
`
`5CHNOLOG
`
`
`
`Responde
`
`
`
` 3M2013—00020, Patent 5,191,573
`
` 3M2013—00023, Patent 5,966,440
`
`
`
`
`
`
`
`DfiEOS i
`
`JOHN P. J. K
`
`
`
`
`
`
`Wednesday, December 4, 2013
`
`
`
`
`
`
`
`
`
` ERSON, CSR 4096 (2001—454287)
`
`PAGE 000002
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 2
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` BY MR. MARSH
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`
`
`
`
`
`
` Description
`
`
`
`32;, 35 C.F.B Section 42.304
`
`
`
`
`
`
`
`
`
` ixhibit 113? Dec'aration of Dr. Joqn P. J.
`
`
`
`
`
`
`
`Ke1'y "q Suppor, O" App1e "nc.'s
`Petition For Covered Business
`
`
`ethod Pa-en- Review Of United
`
`
`
`
`States Pa-en- No. 5,19;,573
`Pursuant To 35 J.S.C. Section
`
`
`
`
`ixhibit 1051 Dec'aration of Dr. Joqn P. t.
`
`
`
`
`
`
`
`Ke"y "q Suppor, O" App1e "rc.'s
`Petition For Covered Business
`
`
`ethod Pa-en- Review Of United
`
`
`
`
`States Pa-en- No. 5,19;,573
`Pursuant To 35 J.S.C. Section
`
`
`
`Dec'aration of Dr. Joqn P. t.
`
`
`
`
`
`
`Ke"y "q Suppor, O" App1e "rc.'s
`Petition For Covered Business
`
`
`
`ethod Pa-en- Review Of United
`
`
`
`States Pa-en- No. 5,996,440
`Pursuant To 35 U.S.C. Section
`
`
`
`
`
`
`
`
`
`Bi11board
`
`32;, 35 C.F.B Section 42.304
`
`
`
`
`Exhibit
`
`
`
`321, 35 C.F.B Section 42.304
`
`Artic'e in Bi"board
`
`Artic'e in Bi"board
`
`
`
`
`
`Bxcerpt
`'
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000003
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`
`
`
`
`One—Page R'oc< Diagram
`
`One—Page R'oc< Diagram
`
`
`
`
`
`
`
`
`
`
`rom Rroadcas: Managemen-
`ixcerpv
`Engineering
`
`
`Transcription 0" Audio
`
`lexis—Nexis Document dated
`
`Vovember ’7,
`’98:
`
`rom Rroadcas: Managemen
`ixcerpv
`Engineering
`
`
`
`
`
`
`lexis Nexis Article dated
`
`Vovember ’9,
`
`’98:
`
`
`
`Sing'e—Page Documen,
`Shareholder dated 7/;
`
`,o Dear
`Sing'e—Page Documen,
`Shareholder dated 7/;6/87
`
`
`Dear
`TTR:1}{P}
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`
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 3
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`
`
`ixcerpt '
`Qillboard
`
`——oOo——
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`
`
`
`
`
`
`igh Speed
`Article entitled A
`
`
`Telecommunications "ntersace For
`
`Digital Audio Transrission And
`
`Qeception
`
` ixhibit l3l7 Article entitled A Eigh Speed
`
`Telecommunications "ntersace For
`
`Digital Audio Transrission And
`
`Qeception
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000004
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 4
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`{fl Bfii
`1 ONfiR:
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`
`{GEES & GRAY
`
`1211 Avenue Of The Americas
`
`
`
`10036—8704
`Yew York, New York
`
`
`
`
`
`
`3Y:
`CH NG—Lfifi EUKUDA, ESQ.
`212—596—9000
`
`ching—lee.fukuda@ropesgray.com
`
`
`{GEES & GQAY
`
`
`
`
`
`
`
`
`
`1900 University Avenue, 6th Floor
`
`
`
`East Palo Alto, Ca'i‘ornia
`94303—2284
`
`
`
`RY:
`LAUREY N. RO% NSON, ESQ.
`650—617—4077
`
`
`
`
`
`
`
`laureq.robinson@ropesgray.com
`
`
`
`FOR 1Hfi RfiSPONJEWi:
`
`
`
`
`
`
`
`AENOED & PO<1£< ‘LE
`
`2th Scree-, N.W.
`555
`
`
`Washington, DC 20004
`
`
`
`
`3Y:
`DAVHD {. MA<SH, Eh.3
`202—942—5068
`
`david.marsh3aporter.com
`
`——oOo——
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/1aw
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`PAGE 000005
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`
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`-%
`'.
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` l R *lMfiM-é *ZR
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`:3 that pursuant to notice and
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`Page 5
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` December 4,
`2013 commencing at 8:05 A.M.
`
`
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`
`
`
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`at the Law 0
`”ices of {Oyfis & GRAY,
`
`1900
`
`on Wednesday,
`
`
`thereof,
`
`
`
` Ias:
`
`
` KELLY, Ph.3.
`
`——oOo——
`
`University Avenue,
`
`me,
`
`Corey W. Anderson,
`
`Palo Alto,
`
`
`a Cercified Shorthand Reporter
`
`
`California, before
`
`
`
`and Realtime Reporter,
`
`
`
`JOiN P. J.
`
`personally appeared
`
`
`
`called as a witness by the
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` first duly sworn, was exami
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`
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`
`. DANl, who, having been
`
`
`1d testified as
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` follows:
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`
`
`
`
`(800)
`
`869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000006
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 6
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`EAST PALO AJTO, CAL BORN A
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`Wednesday, December 4, 2013
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`
`
`8:05 A.M.
`
`——oOo——
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`
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`1
`1 D
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`N G S
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`P R O C
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`
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`JOHN P. J. KH‘LY, Ph.3.
`
`
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`having been sworn by the Reporter,
`
`
`
`testified as follows:
`
`
`
`
`
`
`lNfiSS:
`do.
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`BY MR. MARSi:
`
`
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`Could you state your name?
`
`John Kelly.
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`
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`Pave you b
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`n d pos d b :
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`
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` i have.
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`You understand that you are
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`
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`'Iying today
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`
`
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`I law?
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`A.
`
`Q.
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`
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`under oath just as would you in a cour
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`I do understand that.
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`my question.
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`
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`I will ask you qiestions and your answers are
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`
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`being recorded by the court reporter.
`"t you don't
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`
`
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`
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`understand my questions, please let me know and I will
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`explain or rephrase them.
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`
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`
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`_ you have a question, please ask it.
`
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`don't have a question I will assume you have unders
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`(800) 869—9132
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`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000007
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 7
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`
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`-haL Iair?
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`
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` ":ness nods head).
`
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`
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`" at any time you need a break just let me
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`know.
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`
`I just ask that you don't take a break while a
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`response is —— while a question is pending.
`
`Any reason why you cannot give your best
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`testimony today?
`
`A.
`
`No.
`
`Are you sick or taking any drugs?
`
`
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`take asthma medication, but it doesn't
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`
`
`
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`testimony.
`
`
`I
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`take no other drugs.
`
`
`You are president of the the Kelly Technology
`
` Is that correct?
`
` That's correct.
`
`How many employees?
`
`A.
`
`Q.
`
`We have eight employees currently.
`
`
`How many employees of Kelly Technology Group
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`have worked on this matter beyond yourself?
`
`
`MS. FUKUDA: And just object to that.
`
`Can we
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`
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`covered business methods patent review, one other
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` fine what "this matter" is?
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`
`
`BY MR. MARSi:
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`
`
`Q.
`
`A.
`
`You can answer the question.
`
`Assuming we are talking about the —— the
`
`(800) 869—9132
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`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000008
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 8
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`employee.
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`Q.
`
`A.
`
`Q.
`
`A.
`
`T—r—i—a
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`—l.
`
`Has any other employee helped you?
`
`(No response)
`
`
`What is the name of that employee?
`
`Alain Trial, spelled A—l—a—i—n, Trial,
`
`Q.
`
`Has any other employee helped you regarding
`
`the testimony you are going to give today or the
`
`testimony you have provided in your declaration?
`
`
`
`A.
`
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`i don't believe so.
`
`
`It's possible tha'
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`was a minor assistance from another employee, bu'
`
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`
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`I don't recall that having happened.
`
`Who woald be that other employee?
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`
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`What did you bring with you today?
`
`
`
`sit her
`
`e,
`
`Q.
`
`A.
`
`Q.
`
`I'm no: sure.
`
`
`
`Is there anything that you could look at to
`
`
`fresh your recollection?
`
`
`
`
`1C8 " could look at —— at our records
`
`A.
`
`
`In my o
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`
`
`ermine that.
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`Did you bring any records or papers with you
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`
`
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`—— well, no —— no records from my
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`The kind of
`
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`records that I was thinking about
`
`answered your
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`last question,
`
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`I don't have those
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`and det
`
`
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`‘ICG.
`
`
`
`when
`
`
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`with me .
`
`Q.
`
`(800)
`
`869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000009
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 9
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` brought with me the declarations that ——
`
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`that I prepared in the PTO action that we are talking
`
`about,
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`the covered business method patent review.
`
`
`
`
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`brought those.
`
`
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`And I also brought excerpts from the exhibits
`
`
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` i had referenced in the declarations.
`
`Q.
`
`Thank you.
`
`Any of your other employees
`
`working on any matters related to the SightSound
`
`
`
`patents?
`
`A.
`
`Q.
`
`
`I don't believe so.
`
`How much time was spent by Others on preparing
`
`
` :or the, your declaration and the —— and evidence you
`
`
`are going to give today in the CBM matters?
`
`
`
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`couldn't say.
`
`A.
`
`
`
`Q.
`
`
`What percentage o: his time does your employee
`
`Alain Trial spend on this matter?
`
`
`
`
`
`
`
`
`
`A.
`
`question.
`
`I really don't know how to answer that
`
`wh n w
`ar
`pr paring —— when ——
`
`Som
`
`
`
`
`
`
`
`righ, up to the ,ime when I was working on this in May
`
`
`was working on i, "u'l
`
`time and he was working on it
`
`
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`probably sibstantial'y tull
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`time.
`
`
`
`Vow he is not working on it at all.
`
`Q.
`
`
`But how many months were you, were the two of
`
`
`you working on it full time?
`
`A.
`
`
`
`
`I —— as " sit here "
`
`
`firm recollection
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000010
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`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 10
`
`
`of
`
`
`f
`
`how much time
`
`
`
`spent on this. Certainly some
`
`time in April and certainly time in early May.
`
`These
`
`declarations,
`
`
`
`
`
`swore them on the 5th o: May of this
`
`year.
`
`
`
`
` %ut
`
`don't have a ——
`
`
`
`don't have any better
`
`recollection than that.
`
`Q.
`
`When were you engaged by counsel
`
`in this
`
`matter?
`
`A.
`
`Q.
`
`A.
`
`And you are talking about ——
`
`The CBMS.
`
`
`
`The C3Ms?
`
`
`i had already been engaged by
`
`counsel for the SightSound district court litigation.
`
`And so i: was ——
`
`i mean,
`
`
`
`——
`"'m not sure
`i-
`
`
`
`can ——
`
`
`
`
`wasn't tqinking of it as now I was engaged
`
`SightSouqd V Apple matter.
`
`
`So i don't have a ——
`
` for some new
`
` don't
`
`
`
`
`
`
`
`ngag m nL l
`
`
`have any firm date
`
`in mind.
`
`Q.
`
`So it would be correct to say that you were
`
`
`,he C3M matters?
`not separately engaged Zor
`
`
`
`
`
` jorm.
`
`MS. FUKUDA: Objec-ion ,o
`
`
`
`lHfi W lNfiSS:
`
`
`
`Well, no,
`
`
`i wouldn't say that.
`
`
`
`
`"n terms 0"
`
`—— well,
`
`
`
`guess it depends on what you mean
`
`by separately engaged.
`
`
`BY MR. MARSH:
`
`
`
`Q.
`
`
`
`When you are engaged on a ma
`
`typically have a writt n
`
`(800)
`
`869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 00001 1
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page ll
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`NO.
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`J have a separate written engagement
`
`
`
`3M matters?
`
`
`
`Again, when were yoa Iirs, contacted by
`
`
`
`counsel with respect to the CBM matters?
`
`A.
`
`Q.
`
`
`I don't have any recolleCtion.
`
`
`
`
`
`
`
`
`matters versus the district court litigation in
`
`
`Do you separate out your billings jor
`
`know time—wise.
`
`SightSound matter?
`
`No.
`
`A.
`
`Q.
`
`What have your total billings in the
`
`SightSound matter, matters been to date?
`
`lat else does the Kelly Technology Group do?
`
`
`-her than the SightSound matter?
`
`-her than the expert testimony work that you
`
`
`hold yourselj out
`
`to do.
`
`
`
` couldn't tell you.
`
`
`
`
`
`
`A.
`
`We do —— we do what you might consider to be
`
`traditional consulting, high—technology consulting. And
`
`we also do product development.
`
`
`
`Q.
`
`
`What percentage of your revenue is derived
`
`
`from expert testimony and related matters?
`
`A.
`
`
`I'm not sure revenue—wise.
`
`
`I mean,
`
`
`
`
`
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000012
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`
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`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 12
`
`Q.
`
`
`What percentage of the Technology, Kelly
`
`Technology Group's work time—wise is devoted to expert
`
`testimony and related matters?
`
`
`
`A. Well,
`
`would see that as wider than expert testimony,
`
`
`if you take litigation support, and
`
`
`
`
`
`'m
`
`
`
`
`
`
`not sure I can break out expert testimony separately.
`
`3ut litigation support is around 50 percent
`
`
`
`
`
`
`
`—— o: wqa, we do.
`
`Q.
`
`
`
`So 50 percent of all the time of
`
`employees?
`
`A. Well,
`
`
`
`I can spea< for the time, my time.
`
`
`
`
`not sure that —— I'm not sire how it translates to
`
`
`specific employees. And it certainly changes over time.
`
`When somebody is assigned to help me in a particular
`
`matter,
`
`
`they might be spending a hundred percent of
`
`
`their time for a week or more.
`
`Q.
`
`
`What percentage of that 50 percent, assuming
`
`
`that that 50 percent is as you detined it previously,
`
`
`
`devoted to working on behal
`o Apple?
`
`
`
`is
`
`A.
`
`Sometimes,
`
`
`
`Depends on th tim fram w
`
`ar
`
`talking about.
`
`
`like I can tell you,
`
`I can speak more
`
`
`
`
`
`
`
`
`
`accurately about my time, because I know exactly what
`
`
`
`am doing.
`
`
`And I mean,
`
`
`I can tell you that around about
`
`
`
`
`: May of this year when I was preparing these
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`(800) 869—9132
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`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000013
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 13
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`declarations it was close to a hundred percent. And
`
`recently it's been close to zero percent.
`
`Q.
`
`
`Year—to—date in 20l3, what percentage of
`
`
`
`
`
`time has been devoted to Apple related matters?
`
`Who did you meet with?
`
`A.
`
`
`
`I can't give you any firm numbers, but
`
`
`I could
`
`
`say that it probably is on the order of —— let me think
`
`
`
`about
`
`
`this Zor a minute.
`
`
`
`I can't give you any firm
`
`number.
`
`
`i mean,
`
`
`
`
`" was to guess,
`i'
`
`
`I would say it
`
`would be around ten percent.
`
`Q.
`
`
`
`Do you review all of the invoices that Kelly,
`
`sorry,
`
`the Kelly Technology Group sends out?
`
`
`I do.
`
`A.
`
`Q.
`
`
`
`be able to determine wiat percentage o" Kel'y Techno:
`
`
`
`
`
`Group revenue was due to Lestijying on beha'
`o
`or
`
`So based on those, you would have a —— wou:
`
`
`
`related to matters related to Apple?
`
`
`" cou'd determine how much revenue we ——
`
`A.
`
`
`
`mean,
`
`
`I can —— I can determine how much revenue, how
`
`
`
`
`
`much was invoiced to Apple.
`
`
`I can do that.
`
`
`I mean, not
`
`
`as I sit here, but we have those records.
`
`Q.
`
`Approximately how much time did you spend
`
`
`preparing for this deposition?
`
`
`Probably I would say about three days.
`
`A.
`
`Q.
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`(800) 869—9132
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`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000014
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 14
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`A.
`
`
`I met with, well, Alain Trial on an ongoing
`
`
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`basis. And I met with Ms. Fukuda, Ms. Robinson, and
`
`
`Mr. 3atchelder.
`
`Q.
`
`Q.
`
`When did you meet?
`
`Yesterday.
`
` What other dates did you meet, meet with your
`
`(No response).
`
`Your legal team?
`
`And what do you mean by meet with the legal
`
`
`
`You testijied that you met with Ms. Fukuda,
`
`
`
`
`Ms. Robinson, and Mr. 3atchelder. When did you meet
`
`with Ms. Fukuda and Mr. 3atchelder?
`
`A.
`
`Yesterday.
`
` Did you meet with them on any other day?
`
`Well,
`
`
`I'm trying to understand what you mean
`
` Did you meet with them in person on any other
`
`
`
`those you recite in your declaration related to this
`
`
`
`the Iull day?
`Did you meet with them Zor
`
`
`
`
`
`A. With —— with some 0:
`tqem :or tie "u'l day.
`
`V0.
`
`
`
`
`
`Q.
`
`Have you read any additional materials beyond
`
`
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`(800) 869—9132
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`Merrill Corporation — San Francisco
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`PAGE 000015
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 15
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`Since the
`
`
`I served the declaration?
`
`
`
`
`
`looked a
`
`
`
`
`just answer that
`MS. FUKUDA: Yeah. Dr. Kelly,
`
`
`
`
`yes and no for now and I want to be care u'
`
`MR. MARSH: Sorry, you are not allowed to coach
`
`
`
`
`
` BY MR. MARSH:
`
`your witness.
`
`
`It's my deposition, not yours.
`
`So ——
`
`MS. FUKUDA: Well, actually,
`
`
`I'm not coaching
`
`
`
`I wait to make sure that I get
`
`the chance
`
`
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`to object to privilege.
`
`
`So if you ask a yes—or—no
`
`question,
`
`
`I just want to caution the witness ——
`
`the witness.
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`
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`MR. MARSH: No, no.
`
`
`It's my deposition, not
`
`your deposition.
`
`
`
`
`"5 Mr. Kelly has questions he can ask
`
`those questions.
`
`you want to object to privilege you
`
`can object to privilege.
`
`But let Mr. Kelly answer the question.
`
`3r. Kelly ——
`
`
`
`S. FUKUDA:
`
`
`I am not preventing you :
`
`
`
`
`answering the question. But keep ——
`
`MR. MARSl: Please ——
`
`MS. FUKUDA:
`
`
`
`I'm going to instruct my witness
`
`
`
`to give answers that are not privileged.
`
`
`
`
`R. MARSiz That's fine.
`
`
`
`s. FUKUDA: Okay.
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`(800) 869—9132
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`Merrill Corporation — San Francisco
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`PAGE 000016
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
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`Page 16
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`Mr. Kelly, please provide an answer.
`
`Would you repeat the question, please?
`
`Sure. Have you read any additional ma'
`
`those you recite in your declaration rela
`
` tter?
`
`
`
`
`
`Yes.
`
`What were those materials?
`
`MS. FUKUDA:
`
`
`I instruct the witness not to
`
`
`
`answer to the extent tiat material was provided by
`
`
`
`counsel for purposes o" preparing :or this deposition.
`
`
`
`
`
`
`
`
`lHfi W lNfiSS:
`briesly looked at the PTA3
`
`
`
`BY MR. MARSH:
`
`
`
`Q.
`
`Did you review any other publications or
`
`
`non—privileged material beyond the PTA3 orders?
`
`MS. FUKUDA: Same instruction.
`
`
`
`
`
`
`
`lHfi W lNfiSS:
`
`don't believe so. Not that
`
`
`
`can recall.
`
`BY MR. MARSH:
`
`
`
`
`Did you look at any —— I don't want the
`
`
`
`
`
`
`
`
`
`Did you look at any privileged materials?
`
`
`S. FUKUDA: Objection to form.
`
`
`
`
`
`
`lHfi W lNfiSS:
`'m not sure that
`
`
`
`
`
`
`have, but as " sit here " don't recall.
`
`BY MR. MARSH:
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`(800) 869—9132
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`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000017
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`
`
`No.
`
`
`
`
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`
`
`lHfi W lNfiSS:
`
`
`jY M{. MARSH:
`
`
`
`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
`
`Page 17
`
`Q.
`
`
`Did you look at any materials that were not
`
`
`
`prepared by counsel that you reviewed subsequent to your
`
`
`declaration beyond the CBM orders?
`
`
`
` MS. FUKUDA: Again, my instruction is
`
`
`instruct the witness not to answer to the extent that
`
`any material was provided to you by counsel
`
`in
`
`
`preparation :or this deposition.
`
`
`
`
`
`
`lHfi W lNfiSS:
`
`can't answer that question.
`
`
`BY MR. MARSH:
`
`Q.
`
`A.
`
`received.
`
`Why can't you answer that question?
`
`
`
`
`
`Because " am :ollowing the instruction that
`
`
`
`
`
`
`MS. FUKUDA: Just so we are clear, you can
`
`answer yes or no, but not the content.
`
`
`
`
`
`lHfi W lNfiSS: Okay.
`
`So with that in mind,
`
`the
`
`answer is yes.
`
`
`jY M{. MARSH:
`
`
`
`the material you reviewed prepared by
`
`Q.
`
`Was
`
`counsel?
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`don't believe so.
`
`
`
`the material you reviewed publicly
`
`Q.
`
`Was
`
`available?
`
`A.
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
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`PAGE 000018
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
`
`Page 18
`
`Q.
`
`Was
`
`the material you reviewed under
`
`the SightSound litiga
`
`
`
`
`Sidentiality order O"
`
`A.
`
`Q.
`
`A.
`
`The district court litigation?
`
`Correct.
`
`Yes.
`
`Q.
`
`
`Have any of your opinions today or previously
`
`
`been based on material that is under the conjidentiality
`
`
`order of the SightSound material, confidential material
`
`
`
`
`
`
`
`
`
`
`
`under the distriCt court litigation?
`
`
`
`
`MS. FUKUDA: Objection to Iorm.
`
`
`
`
`
`
`lHfi W lNfiSS: And you have to —— you have to
`
`
`
`BY MR. MARSH:
`
`Q.
`
`{ave you based in your declaration any basis
`
`
`
` ' your opinion —— strike that, we'll start again.
`
`
`
`
`In any o:
`
`the declarations you have provided
`
`
`any or the CBM proceedings, did you base your opinion
`
`
`on material that was under the considentiality order 0:
`
`
`
`the district c0th litigation?
`
`A.
`
`Q.
`
`material?
`
`
`I did not.
`
`
`What was the purpose of you reviewing such
`
`MS. FUKUDA: Objection.
`
`
`I instruct the witness
`
`
`not to answer on tie basis of privilege.
`
`
`
`lHfi W lNfiSS:
`
`
`
`can't answer that question.
`
`
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000019
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`MR. MARSl: Counsel,
`
`
`is it appropriate for us
`
`
`
`Lo reIer to i- as ixhibit l’3?, or would you like it to
`
`be marked as Exhibit
`
`1
`
`in this deposition?
`
`
`
`MS. FUKUDA: Probably easier i: we just use the
`
` 3 numbers.
`
`MR. MARSH: Thank you. Okay.
`
`Q.
`
`
`Can you identify this document?
`
`A.
`
`Yes. This appears to be my declaration
`
`
`
`
`that —— in support of the —— of Apple's pe,iLion jor the
`
`
`covered business method patent review Zor
`
`,he '573.
`
`
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`
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`
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`JOHN P. J. KELLY, Ph.3. —
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`12/4/2013
`
`Page 19
`
`
`
`jY MR. MA
`
`Q.
`
`Okay.
`
`Le'
`
`
`I'm going to give you
`
`
`
`
`ixhibit 113?, which is your declaration in the '573.
`
`(Whereupon,
`
`
`ixhibi; 1’3? was
`
`
`produced :or iden '
`ica,ion)
`
`
`
`
`
`
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Q.
`
`A.
`
`
`Did you write this declaration?
`
`
`I did.
`
`
`
`Did Alain Train drast any parts of
`
`
`
`declaration?
`
`Triai.
`
`Triai.
`
`
`
`Yes, he helped me to prepare the declaration.
`
`
`Which parts did he draft?
`
`Well,
`
`
`
`I sp ak
`sur
`w
`ar
`cl ar about what
`
`
`
`
`can tell you what he did.
`
`
`you mean by drafting.
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000020
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`
`
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`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 20
`
`He
`
`ielped me to prepare the things like the materials
`
`
`list that I set forth on —— in paragraph 9 on page 5.
`
`
` that were —— we didn't make up these numbers,
`
`{e qelped me with putting in all these exhibit numbers
`
`
`
`
`
`they were
`
`h lp d m mak
`th
`th
`th
`
`
`
`provided to us.
`
`H
`
`chart on page 9, paragraph 14.
`
`And we have various, various places where we
`
`
`are cutting in here cutting and pasting from the
`
`documents that
`
`
`I am citing to, and he helped me with
`
`
`
`
`
`That
`
`
`type of thing.
`
`that.
`
`Q.
`
`
`{ave you given us an exhaustive list of the
`
`
`places where he helped, where he dra_,ed or helped you
`
`on the declaration?
`
`
`
`
`
`A. Well,
`
`
`
`I have given you a —— the type o: thing
`
`
`I would have to go through it page by page
`
`that he did.
`
`
`
`
`to do my best to identify, you know, specific parts.
`
`
`
`YOJ know,
`
`
`for example, on page 26,
`
`there is a
`
` figure 3 phOtograph.
`
`Q.
`
`A.
`
`Let's do this systematically.
`
`Sure.
`
`
`
`Did he prepare any o:
`
`the paragraphs on page
`
`
`
`Vo,
`
`
`I don't believe so.
`
`
`
`Did Mr. Train prepare any of the paragraphs on
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000021
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`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 21
`
`
`
`
`
`
`understand who you are talking about,
`
`A.
`
`
`
`
`think of him as Dr. Trial.
`
`Sorry.
`
`
`
`
`Not Mr. Train.
`
`know who you are talking
`
` i don't believe so.
`
`
`
`
`Dr. Trial prepare any of the materials on
`
`q't believe so.
`
`
`
`
`
`Dr. Trial prepare any of the materials on
`
`
`
`
`
`
`
`Well, he helped me to assemble the —— we had a
`
`
`stack o_ macerials, and he helped me :o —— to create
`
`
`this list of materials that I set forch in paragraph 9.
`
`
`
`
`
`
`
`
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Did he select the materials?
`
`Vo.
`
`
`
`
`Did Dr. Train assist you in —— on page 6?
`
`Yes, he did.
`
`He helped me to get this lis
`
`
`
`
`
` formatted and 1e helped me with the exhibit numbers
`
`on page 7, and he helped me to add to the exhibit
`
`
`
`were supplied to us.
`
`
`Did Dr. Trial, sorry.
`
`
`
`i' Dr. Trial prepare
`
`
`f
`
`the materials on page 7?
`
`
`
`He helped me to —— to format the information
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000022
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`
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`
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`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 22
`
`numbers that were supplied to us,
`
`that type of thing.
`
`Q.
`
`On page 7, was his help limited to the actions
`
`you have described?
`
`A. Well,
`
`
`
`the actions I have described for page ——
`
`basically paragraph 9,
`
`
`I mean, page 7, his —— his
`
`assistance on page 7,
`
`
`
`
`
`di"erent
`'rom his assistance on page 6 and page —— and
`
`
`I don't believe, was materially
`
`
`paragraph 9 portion of page 5.
`
`Q.
`
`
`I don't believe you answered my question,
`
`so
`
`
`
`
`
`: again.
`
`
`
`Did Dr. —— let me just go back so
`
`
`
`have just described?
`
`
`
`
`
`this same question again.
`
`On page 7, we can add page 8 as well, and page
`
`9, was his help limited to the actions you have
`
`described?
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`
`lHfi W lNfiSS:
`
`
`
`
`
`'m —— I'm not sure if you were
`
`
`intending to identify pages 7, 8, and 9, because
`
`paragraph 9 finishes on page 7, and then we get
`
`
`
` di"erent macter on page 8.
`
`into
`
`
`BY MR. MARSH:
`
`You are correct.
`
`net's talk about paragraph 9. Were the
`
`actions with respect to paragraph 9
`
`limited to those you
`
`
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000023
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`
`
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`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 23
`
`A.
`
`
`I believe so.
`
`
`I mean,
`
`
`
`
`
`
`
`" said di
`i-
`'erent
`
`
`things about say the portion o: paragraph 9 that's on
`
`
`
`portion that's on page 7,
`
`page 5 versis the portion that's on page 6 and the
`
`
`
`"
`think it you take tie —— the
`
`
`
`
`
`
`union of that description, it would apply to what he did
`
`in helping me prepare paragraph 9.
`
`Q.
`
`
`For paragraphs 10 through 12, did Dr. Trial
`
`assist you?
`
`A. Well, you know,
`
`
`
`
`
`i'
`" asked him
`I don't recall
`
`
`
`to —— to pull up the —— the distriCt court's description
`
`
`o;
`
`
`the person o" ordinary skill
`
`in the art. And you
`
`
`
`
`
`
`
`
`
`
`
`I don't remember as I sit h r wh '1 r h
`
`typ d
`
`
`typed them in. But
`
`'iat would be
`
`
`
`those words in or I
`
`
`
`(now,
`
`
`
`
`the extent of his help.
`
`And you know, paragraph ll,
`
`
`I think that ——
`
`
`
`mean, as I recall, we got that from an earlier
`
`
`
`invalidity report where I had —— I had written this.
`
`
`don't recall as " sit here who did the cut and paste,
`
`but you know,
`
`
`i: it was him or it was me.
`
`
`
`
`
`Q.
`
`What was the earlier invalidity report you
`
` ferred to?
`
`A.
`
`Maybe it was the —— maybe it was the
`
`
`
`
`declaration submitted in —— for the Markman order.
`
`
`
`
`iut
`
`
`
`don't recall that.
`
`had,
`
`
`I had given an opinion
`
`
`of
`
`_ ordinary skill
`
`in the art.
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000024
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`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 24
`
`Q.
`
`
`
`Is this opinion that you are giving of
`
`ordinary skill in the art consistent with those where it
`
`
`was cut and passed from?
`
`A.
`
`Q.
`
`
`I certainly believe so.
`
`
`Was it cut and pasted from an opinion in a
`
`
`
`SightSound matter?
`
`A.
`
`Q.
`
`A.
`
` Education?
`
`Q.
`
`A.
`
`Yes.
`
`
`What is Dr. Trial's background?
`
`He has —— technical background, you mean?
`
`Yes, please.
`
`And experience?
`
`He has worked with me
`
`
`
`last 14 or 15 years.
`
`
`And before that he was a post doctoral
`
`
`researcher at UCSB.
`
`
`
`And before that he was a Ph.D. student at
`
`
`Princeton and at UCSB.
`
`
`And before that he was —— he was an
`
`
`
`undergraduate at University of Dayton in Ohio.
`
`Q.
`
`
`
`Is it typical for someone with such a long and
`
`detailed technical background to be limited to
`
`
`
`collecting lists and inserting exhibit numbers?
`
`I have told you what he
`
`MS. FUKUDA: Objection to form.
`
`
`
`
`
`
`lHfi W lNfiSS: Well,
`
`
`
`
`I can': speak in general
`
` But
`
`
`in —— in —— I mean,
`
`
`
`(800)
`
`869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000025
`
`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 25
`
`did to help me with those paragraphs.
`
`
`BY MR. MARSH:
`
`Q.
`
`
`What tasks does Dr. Trial typically undertake
`
` for Kelly Technology?
`
`
`
`
`
`Lots 0' di"erent Lasks.
`
`A.
`
`
`He writes software,
`
`he analyzes source code, he builds, he is able to take
`
`
`ancient hardware and software and construct working
`
`systems, he is able to reverse engineer produc:s.
`
`
`
`activi
`he is able to assist me in a'l sorts o
`
`reviewing materials and the like.
`
`
`
`
`
`Q.
`
`
`Did he undertake any of those
`
`
`respect to your declarations in :he CBM
`
`A.
`
`He helped me review materials.
`
`
`
`:ivities with
`
`
`
`:ters?
`
`{e —— we
`
`didn't —— we didn't build any systems, we didn't analyze
`
`
`
`'or —— :or these purposes.
`
`any source code
`
`Q.
`
`What do you mean when you say "He helped me
`
`review materials"?
`
`ones that I cite here I would have him also look a
`
`looked at —— at various documents and
`
`
`
`A.
`
`I
`
`
`
`
`
`Yes.
`
`
`
`
`
`
`documents to see i-
`" missed something or —— and
`
`
`
`
`would —— I would have discussions with him about the
`
`documents.
`
`Q.
`
`
`Okay. Let's turn to page 10 of
`
`declaration.
`
`A.
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000026
`
`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 26
`
`Q.
`
`
`Can you identify what is the second party
`
`
`memory in this illistration in figure 1?
`
`
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`
`lHfi W lNfiSS:
`
`(No response).
`
` BY MR. MARSH:
`
`What are you looking at?
`
`
`
`
`I'm going to look at the '573 patent and see
`
`what it says.
`
`
`
`
`
`I have asked you to identi'y i
`”rom the
`
`
`
`
`figure you have provided in your declaration.
`
`Q.
`
`A.
`
`Q.
`
`I have the same objection.
`
`
`
`A.
`
`
`
`
`I believe that this is figure —— this figure
`
`
`
`
`
`is from the '573 patent, it's figure 1 of the '573
`
`patent.
`
`
`So I'm going to look through and see what
`
`
`the —— what the patent specification says about the
`
`second a memory to answer your question.
`
` i believe that was the question. Would you
`
`repeat the question, please?
`
`MR. MARSH: Could you?
`
`(Whereupon,
`
`the reporter read back
`
`the record as follows:
`
`
`
`"Can you identify what is the second
`
`party memory in this illustration
`
`
`
`in figure 1?")
`
`
`MS. FUKUDA:
`
`
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000027
`
`
`
`the second party would be equipment associated with :he
`
`
`
`
`second party is on the right side 0
`'igure 1. And :he
`
`memories that are :here are the incoming RAM 50C,
`
`the
`
`
`hard disk 60, and the playback RAM 503.
`
`
`
`
`And the specification describes those, it
`
`describes the incoming RAM access memory chip,
`
`the
`
`playback RAM access memory chip, and 60 is the hard disk
`
` of the user.
`
` 3u'
`
`
`to talk abou'
`
`and then —— and then later on it goes on
`
`a —— a —— a second,
`
`second memory, but it
`
`
`doesn't —— so it must be one or more Of
`
`those,
`
`those
`
`memories.
`
`Q.
`
`BY MR. MARSH:
`
`
`
`Did you review the '573 patent prior to the
`
`deposition?
`
`A.
`
`
`I'm no: sure what you mean by that. What
`
`
`
`
`frame did yoa have for that?
`
`MR. MARSH: Okay.
`
`
`For the record when
`
`
`
`
`party's memory system.
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 27
`
`
`
`
`
`
`lHfi W lNfiSS:
`
`
`lhe figure 1
`
`in the patent,
`
`tqat
`
`
`
`
`
`to the '573, it's U.S. patent 5,191,573.
`
`Q.
`
`When you were reviewing the '573 patent,
`
`sorry, let's stop, start the question again.
`
`
`You mentioned that figure 1 o" the '573 patent
`
`
`
`set forth that a hard disk was part of
`
`,he second
`
`
`
`(800)
`
`869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000028
`
`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 28
`
` Is that correct?
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`lHfi W lNfiSS: No. What
`
`
`
`
`I said was that there
`
`
`is a second memory —— wha'
`I said was the specifica
`
`
`
`
`
`discusses in figure 1, wi
`reference to figure 1 i
`
`
`
`
`
`
`the second party's system does have a
`
`
`
`discusses, it discusses tiree memories.
`
`
`And then later on in the specification it
`
`
`discusses a so—called second memory of a second party.
`
`
`
`
`
`don't believe it ties that back to any specific
`%ut
`
`
`
`
`figure 1.
`parts 0
`
`
`
`3ut presumably if it's tied to anything it
`
`
`must be tied to some memory in figure 1.
`
`
`BY MR. MARSH:
`
`Q.
`
`
`The figure legend you replicate in your
`
`
`"The first party system
`declaration states as follows:
`
`
`
`(components on the le . side 0
`
`
`
`the figure) are
`
`
`
`
`
`
`connected to the second party's system (components on
`
`
`
`the right side of
`the figure) by telephone lines."
`
`
`
`Does Lha- figure legend that you reproduced
`
`
`help clarify whether the second party has a hard disk as
`
`its memory?
`
`
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`
`lHfi W lNfiSS:
`would agree Lha-
`
`
`the figure
`
`the —— the right—land side which
`
`
`
` forth here,
`
`
`
`
`
`
`
`say,
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000029
`
`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 29
`
`
`
`hard disk 60. That —— but whether or no
`
`second memory is —— is no: discussed,
`
`
`
`
`
`
`
`
`
`spec.
`
`
`BY MR. MARSH:
`
`Is a hard disk memory?
`
`
`
`
`It's a —— hard disk is a type o: memory,
`
`
`
`Is the hard disk in figure l
`
`that you provided
`
`
`
`on page lO c" your declaration labeled as being part of
`
`the second party's system?
`
`A.
`
`Q.
`
`I don't understand the question.
`
`
`"n figure l, hard disk labeled 60,
`
`
`
`right—hand side of
`the figure.
`
`
`
`is on the
`
` Is that correct?
`
`
`
`Yes, i: is.
`
`
`
`In the legend under figure 1,
`
`the legend
`
`A.
`
`Q.
`
`
`states "The first party's system (components on the left
`
`
`
`
`side of
`
`the figure) are connec:ed to the second party's
`
`And I have identified that in —
`
`
`
`
`
`
`system (components on the right side of
`
`
`the figure) by
`
`
`
`telephone lines."
`
`
`Is hard disk 60 part of the second party's
`
`
`
`
`MS. FUKUDA: Objection to form.
`
`
`
`
`lHfi W lNfiSS:
`t is a component on the right
`
`
`
`the figure.
`
`
`
`
`
`(800) 869—9132
`
`Merrill Corporation — San Francisco
`www.merrillcorp.com/law
`
`PAGE 000030
`
`
`
`
`
`JOHN P. J. KELLY, Ph.3. —
`
`12/4/2013
`
`Page 30
`
`the —— in the caption,
`
`
`in the figure 1 caption as part
`
`
` of the second party's system.
`
`
`BY MR. MARSH:
`
`
`
`Q.
`
`
`
`
`
`
`MS. FUKUDA: Objection to jorm.
`
`
`
`lHfi W lNfiSS: Well,
`
`'or
`
`
`example, says "transferring money electronica"y via a
`
`the claim, claim ’,
`
`Given your understanding of the '573 pa
`
`
`how is payment transmitted Zrom the second party
`
`
` first party, according to the patent?
`
`
`
`
`
`
`
`telecommunication line to a I
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