Exhibit 1033
`
`Martin Deposition Transcript
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE, INC. and APPLE, INC., )
` Petitioners, )CBM 2015-00040
` vs. )Patent 7,774,280
`CONTENTGUARD HOLDINGS, INC., )
` Patent Owner. )
`
` DEPOSITION OF DAVID MARTIN, Ph.D.
` Chicago, Illinois
` December 2, 2015
`
`REPORTED BY: Tina Alfaro, RPR, CRR, RMR, CLR
`Job no. 100362
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2
`
`3
`
`4 5
`
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 2
`
`Page 3
`
`A P P E A R A N C E S:
`
` SIDLEY AUSTIN
` BY: MICHAEL FRANZINGER, ESQ.
` JEFFREY KUSHAN, ESQ.
` 1501 K Street, N.W.
` Washington, D.C. 20005
` On behalf of Apple, Inc.;
`
` KAYE SCHOLER
` BY: ROBERT LAURENZI, ESQ.
` 250 West 55th Street
` New York, New York 10019
` On behalf of Google, Inc.;
`
` FITCH, EVEN, TABIN & FLANNERY
` BY: TIMOTHY MALONEY, ESQ.
` 120 South LaSalle Street
` Chicago, Illinois 60603
` On behalf of Contentguard Holdings.
`
`1
`
`23
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` December 2, 2015
` 9:00 a.m.
`
` The deposition of DAVID MARTIN Ph.D., held at
`the offices of Fitch, Even, Tabin & Flannery,
`120 South LaSalle Street, Chicago, Illinois,
`pursuant to agreement before Tina M. Alfaro, a
`Registered Professional Reporter and Certified
`Realtime Reporter of the State of Illinois.
`
` I N D E X
`
` EXAMINATION
`
`WITNESS PAGE
`
`DAVID MARTIN, Ph.D.
`
` By Mr. Franzinger 5
`
` By Mr. Maloney 156
`
` EXHIBITS
`PROCEEDING EXHIBITS PAGE
`Exhibit 1001 7
` '280 Patent
`
`Exhibit 1002 7
` '012 Patent
`Exhibit 2009 6
` Declaration
`
` NOTE: Exhibits were not tendered for
` inclusion with transcript.
`
`Page 4
`
`Page 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` (Witness sworn.)
`WHEREUPON:
` DAVID MARTIN, Ph.D.,
`called as a witness herein, having been first duly
`sworn, was examined and testified as follows:
` EXAMINATION
`BY MR. FRANZINGER:
` Q. Good morning, Dr. Martin.
` A. Good morning, Mr. Franzinger.
` Q. Have you had your deposition taken in a
`proceeding before the Patent Trial and Appeal Board
`before?
` A. No, sir.
` Q. I'll just go through a few of the ground
`rules for these depositions. Your attorney is only
`entitled to make brief, single-word objections, no
`speaking objections. You must answer the question
`that I ask unless your attorney instructs you not to
`do so. If there's a dispute over something that the
`attorneys need to discuss, we will likely ask you to
`leave the room while we handle that discussion. And
`there is no discussion of the substance of your
`testimony during breaks in the deposition. Do you
`understand?
`
`TSG Reporting - Worldwide 877-702-9580
`
`2
`
`123456
`
`7
`
`89
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12
`
`3
`
`4
`
`5
`
`6
`
`7
`
`89
`
`10
`11
`
`12
`
`13
`14
`
`15
`16
`
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 6
`
`Page 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` A. I do.
` Q. If you have any questions about procedure,
`you can raise them during the deposition, but I
`don't anticipate that there will be any such
`questions.
` If you do have a question, if you don't
`understand my question, you'd like to ask me to
`rephrase, please go ahead and do so. But if you do
`understand the question, I'd like you to give your
`answer to the best of your understanding. Is that
`acceptable?
` A. Certainly.
` Q. Which documents have you brought with you?
` A. This is a copy of my declaration in this
`matter, and then I have a copy of the '280 Patent
`and the '012 Patent.
` (Proceeding Exhibit 2009 was
` marked for identification as
` requested.)
`BY MR. FRANZINGER:
` Q. Okay. I see your declaration has the
`proceedings Exhibit No. 2009 on it; is that right?
`At the bottom.
` A. Correct. Yes, that is correct.
`
`Page 8
`
` DAVID MARTIN, Ph.D.
` A. It's my page marking 66, which is page 69
`of Exhibit 2009.
` Q. Okay. Our copy had the same gap in it. So
`you're saying the gap should be figure 6 from the
`Gruse reference?
` A. Exactly.
` Q. And are there any other errors or
`corrections that you think need to be made to your
`declaration in this matter?
` A. This is the only such thing that I noticed.
` Q. How much time did you spend preparing for
`this deposition?
` A. Basically a business day, yesterday.
` Q. What did you do to prepare for it?
` A. I met with Mr. Maloney and I reviewed
`documents.
` Q. Is there any reason that you can't give
`your most accurate testimony today?
` A. No, sir.
` Q. And nothing impairing your memory or
`anything like that?
` A. Not that I'm aware of, sir.
` Q. Have you recently rejoined Iowa State
`University?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` Q. Okay. So we'll use that as an exhibit in
`this deposition. I'd like to substitute for the
`other two documents you brought with you with the
`exhibit marked versions, and I'll do now.
` (Proceeding Exhibit 1001 and
` Exhibit 1002 was marked for
` identification.)
`BY MR. FRANZINGER:
` Q. First I'm handing you what's been marked as
`Exhibit 1001, the '280 Patent. Then I'm giving you
`what's been marked Exhibit 1002, the Stefik
`'012 Patent.
` By the way, have you made any annotations
`or markings on the versions of the documents that
`you brought with you?
` A. No, sir. They're fresh copies.
` If I may, I'd like to point out one thing
`about this Exhibit 2009. There is a missing figure,
`figure 6, on page 66, which is identified in the
`declaration as being figure 6 from Gruse, G-R-U-S-E,
`and that's what was originally in the PDF version of
`this declaration that I provided but appears to be
`missing in this document.
` Q. Which page is that in your declaration?
`
`Page 9
`
` DAVID MARTIN, Ph.D.
` A. I have a new affiliation at Iowa State
`University, yes.
` Q. What's your new affiliation?
` A. It is called affiliated faculty with the
`computer science department, and this is the result
`of an application and meeting with the department
`for which the department voted to name me as an
`affiliated faculty member.
` Q. What are your responsibilities in that
`role?
` A. They're to be determined.
` Q. You have given one presentation or lecture
`there recently, haven't you?
` A. That's true.
` Q. What was the subject matter of that
`lecture?
` A. Let me see if I can remember. I can't
`remember the actual title of the presentation, but
`the subject matter was in comparing technology to
`stated inventions, roughly speaking.
` Q. And stated inventions in patents?
` A. Yes.
` Q. How are your responsibilities in your
`affiliated faculty position going to be determined?
`
`TSG Reporting - Worldwide 877-702-9580
`
`3
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 10
`
`Page 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` A. By mutual agreement.
` Q. Between you and the other faculty members?
` A. Correct.
` Q. So you don't have anything currently in
`your set of commitments to the Iowa State science
`department?
` A. I'm not sure I understand the question.
` Q. Okay. Do you have any upcoming tasks or
`events associated with that position?
` A. Other than a general agreement to pursue
`the relationship, I don't have anything specific on
`my calendar.
` Q. When did you apply for the affiliated
`faculty position?
` A. It was sometime during the fall semester.
`I would say the process began towards the beginning
`of the fall semester.
` Q. Do you recall what month?
` A. I'm thinking that would make it August, but
`I don't really recall with clarity exactly when it
`began.
` Q. All right. And you don't have any
`upcoming --
` A. In fact --
`
`Page 12
`
` DAVID MARTIN, Ph.D.
`the panel's construction and describe my
`understanding of it.
` Q. Do you agree -- well, let's put it this
`way. The panel's construction is "A variable having
`a value that represents status of rights or other
`dynamic conditions," correct?
` A. That's my understanding.
` Q. And do you agree or disagree with that
`construction?
` A. Well, as I stated here in paragraph 53,
`this definition works for the purposes of the
`'280 Patent claims at issue with the understanding
`that the '280 specification describes how a state
`variable value may represent status of rights by
`identifying a location where a state of rights is
`stored.
` Q. So you say that it works, but I'm unclear
`on whether you agree or disagree with the panel's
`construction. Do you have an opinion on that?
` A. I accept the panel's construction and this
`is how I interpret it.
` Q. Does your interpretation reflect the
`broadest reasonable construction of state variable
`in this patent?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` Q. Go ahead.
` A. -- maybe I should correct. I'm not even
`sure it began in the fall semester. It may have
`been late in summer and that would make some sense
`since things are usually quieter in an academic
`department at that time and may have been, in fact,
`when I first began meeting with the department
`chair.
` Q. Were you invited to apply for the position?
` A. Yes, I was.
` Q. By whom?
` A. The department chair.
` Q. Just to be clear, you don't have anything
`currently in your schedule in terms of commitments
`to Iowa State in the coming months; is that right?
` A. I can't picture an event on my calendar
`that I need to show up for. That's all I meant to
`say.
` Q. Okay.
` In your declaration you have offered a
`claim construction of the term "state variable"; is
`that right?
` A. In a manner of speaking I would say
`actually what I did in paragraph 53 was acknowledge
`
`Page 13
`
` DAVID MARTIN, Ph.D.
` A. To the best of my knowledge as I sit here
`today, it does.
` Q. And is your understanding of the broadest
`reasonable construction of state variable in the
`'280 Patent the same as your understanding of the
`ordinary meaning of the term in view of the
`specification?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. I don't recall having expressed an opinion
`as to the ordinary view of the term "state variable"
`in light of the specification as a whole. So I'm
`not sure I can answer that question.
` Q. Let's turn to the construction you have
`discussed for meta-right in paragraph 58, and that
`construction that you have there is "A right that
`when exercised creates or disposes of usage rights
`or other meta-rights but that is not itself a usage
`right because exercising a meta-right does not
`result in action to content." Do I have that right?
` A. That is the construction that I quote in
`that paragraph.
` Q. And you're aware that the panel in this
`proceeding has construed meta-right as "A right that
`
`TSG Reporting - Worldwide 877-702-9580
`
`4
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 14
`
`Page 15
`
` DAVID MARTIN, Ph.D.
`one has to generate, manipulate, modify, dispose of,
`or otherwise derive another right"?
` A. That's correct.
` Q. Do you agree or disagree with the Board's
`construction that I just mentioned?
` A. In my opinion the Board's construction is
`incomplete. I do not disagree with what is said in
`the Board's construction, but I feel that the
`Board's construction does not fully characterize
`what meta-rights mean.
` Q. Do you understand the Board's construction
`to be broader than yours?
` A. I understand it to be broader than the
`construction that I quoted in paragraph 58 that we
`just discussed.
` Q. You don't disagree with the part of the
`Board's construction that refers to the ability of
`user rights to manipulate or modify another right,
`do you?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. Could you repeat that question, please.
` Q. You don't disagree with the part of the
`Board's construction that allows for usage --
`
`Page 16
`
` DAVID MARTIN, Ph.D.
` Q. Does that construction reflect, in your
`opinion, the broadest reasonable interpretation of
`meta-right in this patent?
` A. Yes, sir.
` Q. And is your interpretation of meta-right in
`the '280 Patent using the ordinary meaning in view
`of the specification any different from what you've
`put forth here as the broadest reasonable
`interpretation?
` A. Are you asking whether there's a difference
`between what I've described as the broadest
`reasonable interpretation and the ordinary meaning?
` Q. Yes.
` MR. MALONEY: Objection to the extent it's
`beyond the scope of this proceeding.
`BY THE WITNESS:
` A. I did not -- I do not recall analyzing the
`specification for the ordinary meaning of meta-right
`in expressing that opinion. So I'm unable to answer
`your question.
` Q. Do you have an understanding of the
`difference between the broadest reasonable
`interpretation standard and the standard of claim
`construction used in district courts?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`sorry -- for meta-rights to manipulate or modify
`another right, do you?
` A. As I previously said, I agree with the
`Board's construction insofar as it does characterize
`properties of meta-rights. It's merely incomplete.
`So the consequence of that is that I agree that a
`meta-right can manipulate, modify, dispose, or
`otherwise derive another right.
` Q. Are the validity opinions in your
`declaration based on the Board's construction of the
`meta-right or your construction of the meta-right?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. The opinions expressed in my report
`identify at each point which construction is being
`used in that analysis. So some of my opinions apply
`the Board's construction, and then with what I hoped
`would be clarity I also analyzed under the other
`construction.
` Q. With regard to your construction that's in
`paragraph 58 of your declaration that we've already
`quoted, does that construction depend on using the
`broadest reasonable interpretation standard?
` A. I'm not sure what you mean by "depend on."
`
`Page 17
`
` DAVID MARTIN, Ph.D.
` A. I understand them to be -- I understand
`them to be different standards, but I'm not a
`lawyer. So I'll just leave it at that, I understand
`they're different standards.
` Q. And do you have any examples in your own
`mind of how those two standards might differ?
` MR. MALONEY: Objection, beyond the scope.
`BY THE WITNESS:
` A. This is not something I was asked to
`formulate an opinion on in my declaration. So I'm
`not -- I have not great confidence in being able to
`come up with a convincing explanation of what the
`difference would be as I sit here today, but my
`recollection is that -- that the two entities may
`both consult different sorts of material and/or
`analyze them in somewhat different ways.
` Q. And in what different ways are you
`referring to?
` A. I would want to consult materials to
`refresh my memory on that. That's not something I
`was asked to prepare for the purpose of this
`declaration or my testimony in this case.
` Q. So you have expressed your view I think
`that the interpretation that you set forth for
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TSG Reporting - Worldwide 877-702-9580
`
`5
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 18
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`meta-right in your declaration was based on the
`broadest reasonable interpretation but you don't
`know how that standard differs from the District
`Court standard; is that right?
` MR. MALONEY: Objection, asked and answered.
`BY THE WITNESS:
` A. I'm not prepared to carefully characterize
`how the two standards differ as a legal matter as I
`sit here today. Yet -- I've forgotten the rest of
`your question.
` Q. The rest of my question is you don't know
`how the broadest reasonable interpretation standard
`differs from the District Court standard?
` A. I'm confused because you asked something
`about what I said in my declaration. That was the
`part that I forgot.
` Q. I just asked whether you had expressed your
`view that the interpretation that you offered for
`meta-right in your declaration is based on the
`broadest reasonable interpretation?
` A. Yes, I recall that. Yes, sir.
` Q. Is it your understanding that the broadest
`reasonable interpretation can sometimes coincide
`with the ordinary meaning in view of the
`
`Page 20
`
` DAVID MARTIN, Ph.D.
` Q. Do either of your constructions of
`meta-right require that the meta-right is exercised
`at a different time from the usage right?
` (Witness viewing document.)
`BY THE WITNESS:
` A. No. I don't see either of these
`constructions addressing the issue of timing or
`simultaneity, and I hope that I had your question
`fully in mind when I answered no at the beginning of
`the question. So my answer really is I don't see
`timing or simultaneity being a direct requirement of
`either of these constructions.
` Q. Do either of your interpretations of
`meta-right require that it be enforced at a
`different time from a usage right?
` A. Again, that is also a question of timing or
`simultaneity. The word time was in your question,
`so my answer would be the same.
` Q. Do either of your constructions require
`usage rights and meta-rights to be separately
`enforced?
` A. I'm not sure what you mean by that exactly.
` Q. Do either of your constructions require
`usage rights and meta-rights to be enforced in
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`specification?
` MR. MALONEY: Same objection as to the scope.
`BY THE WITNESS:
` A. I wasn't asked to analyze that question,
`but my understanding is that they could overlap in
`some instances, yes, sir.
` Q. By "overlap" do you mean they could be the
`same in some instances?
` A. That's when I meant, yes, sir, in that
`answer.
` Q. You have also I believe offered the
`interpretation of meta-right as "A right that one
`has to generate, manipulate, modify, dispose of, or
`otherwise derive another right and that is not
`itself a usage right because it does not result in
`action to content when exercised." Is that a
`construction that you offer?
` A. Correct. That is described at the end of
`paragraph 58 as well.
` Q. And is that -- do you believe that is the
`broadest reasonable interpretation of meta-right?
` A. That construction that you just read would
`also describe meta-rights in broadest reasonable
`terms.
`
`Page 21
`
` DAVID MARTIN, Ph.D.
`different and unrelated processes?
` A. Could you clarify what you mean by
`"process" in this context?
` Q. The process of enforcing usage right and
`the process of enforcing the meta-right.
` A. So you're not talking about a process in an
`operating system in that question, and with that
`understanding, could you repeat your question,
`please.
` Q. Sure.
` Do either of your constructions of
`meta-right require usage rights and meta-rights to
`be enforced in different and unrelated processes?
` A. It's hard for me to say. Obviously those
`words, different and unrelated processes, are not
`present in either of the constructions, but to the
`extent that -- well, I'm just having a hard time
`understanding what that means in relation to these
`constructions absent an actual system to analyze.
`So it's hard for me to answer.
` Q. Could you turn to paragraph 73 of your
`declaration, Exhibit 2009. Do you see the first
`sentence where you say "This confirms the NSOR
`parameter is not itself a separately exerciseable
`
`TSG Reporting - Worldwide 877-702-9580
`
`6
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 22
`
`Page 23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`right, but instead provides data parameters used to
`determine the rights to associate with a transferred
`item of digital content"?
` A. I do see that.
` Q. And the NSOR parameter in that refers to
`the net set of rights in the Stefik '012 Patent; is
`that right?
` A. Correct.
` Q. So are you saying -- first of all, the next
`set of rights parameter is used to determine rights,
`correct?
` A. Not directly. The NSOR parameter is a
`parameter that is then in turn used to determine
`rights.
` Q. So the NSOR parameter is used to determine
`rights?
` A. It is an input to the process that
`determines the rights to associate with a
`transferred item of digital content as I describe
`here in 73.
` Q. And that's where you say "It provides data
`parameters used to determine the rights to associate
`the transferred item of digital content"?
` A. Correct.
`
`Page 24
`
` DAVID MARTIN, Ph.D.
`declaration, does that interpretation rely on an
`expressed definition in the specification? And to
`be clear, I'm talking about the first construction
`that you mentioned.
` A. My recollection is that this first
`construction quoted in 58 does derive from specific
`passages in the '280 Patent. I don't know whether
`you would call them definitions or not.
` Q. And what passages does it derive from?
` A. I don't remember the column citations
`offhand. I'm sure that there are documents I could
`consult that would lead to this, but I don't
`remember offhand sitting here.
` Q. Okay. What do you think you would consult
`to figure out what the basis was in the
`specification for your construction of meta-right?
` A. Two things come to mind. First is, of
`course, I cite paper 8 at 30 in this paragraph as a
`source for the District Court's proposal, and in
`addition I would also expect the citations to be
`present in the District Court's claim construction
`order.
` Q. The construction that you've put forth here
`is the same as the District Court's construction,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` Q. And you say that the "NSOR parameter is not
`itself a separately exerciseable right." Do you
`believe that the '280 Patent requires meta-rights to
`be separately exercisable from usage rights?
` A. That's not a question that I thought about
`in my analysis. As I think you're probably aware,
`in paragraph 73 this is the conclusion of an
`explanation as to why the NSOR parameter does not
`meet the claim construction of meta-right. So
`that's all I'm really addressing here.
` Q. Okay. Yeah. We will, I'm sure, cover
`other aspects of your explanation of that position,
`but you did not analyze the question of whether the
`'280 Patent requires meta-rights to be separately
`exercisable from usage rights; is that correct?
` A. No, I did not investigate whether the
`'280 Patent requires in general terms that
`meta-rights be separately exercisable from usage
`rights. That was not part of my investigation. I
`investigated some specific requirements of the '280
`and the claim constructions, but not that particular
`question.
` Q. Going back to your interpretation of
`meta-right as expressed in paragraph 58 of your
`
`Page 25
`
` DAVID MARTIN, Ph.D.
`correct?
` A. Yes, sir.
` Q. Putting aside what the origin of that
`construction was, the basis for your using it in
`your declaration was that it was used by the
`District Court, correct?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. I didn't quite understand the question.
` Q. Okay. Well, the reason you give in
`paragraph 58 for using this construction is that it
`tracks the District Court's proposal, correct?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. I disagree. I would say I make a comment
`that it tracks the District Court's proposal, but I
`wouldn't say I characterized that as the reason that
`I've offered it.
` Q. Okay. Are you able sitting here today to
`identify any portions of the specification of the
`'280 Patent that form the basis of your construction
`of meta-right?
` A. I'm happy to look through the specification
`for that.
`
`TSG Reporting - Worldwide 877-702-9580
`
`7
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 26
`
`Page 27
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
` Q. Okay.
` (Witness viewing document.)
`BY THE WITNESS:
` A. I would direct you to column 7 starting at
`around line 23.
` Q. And extending through where?
` A. Oh, the paragraph beginning at line 23.
` Q. And that's the paragraph that begins with
`the sentence "At a high level the process of
`enforcing and exercising meta-rights are the same as
`for usage rights"; is that correct?
` A. Correct.
` Q. Are there any other portions of the '280
`specification that form the basis for your opinion
`of what the construction of meta-right should be?
` A. There's also column 5, lines 46 through 48,
`so I considered that as well. And I also considered
`claim 1 in the particular, although I'm aware that
`there are other claims that also recite the
`meta-right specifying the right that can be created.
`So that is relevant to my understanding of the term
`meta-right as well. Those are the items that come
`to mind as I sit here right now, but if you really
`want a complete answer, then I would have to read
`
`Page 28
`
` DAVID MARTIN, Ph.D.
` Q. And paragraph 56 is also discussing the
`construction of meta-right, isn't it?
` A. It is.
` Q. And besides those three citations, you do
`not cite any other passages of the specification of
`the '280 Patent in support of your construction of
`meta-right, do you?
` (Witness viewing document.)
`BY THE WITNESS:
` A. In paragraph 58 I do cite paper 8 and I
`forget what paper 8 is. I don't think paper 8 is
`the '280 Patent itself, but it may contain citations
`to the '280 that I considered as well. And, of
`course, I also considered the '280 Patent as a whole
`in forming my opinions as I described in paragraph
`14 on page 5 of my declaration.
` Q. My question was with regard to any specific
`citations you had to the '280 Patent in support of
`your construction of meta-rights. Did I have that
`list correct?
` A. Where the text of my declaration
`specifically cites to a column and line of the
`patent, I think that is correct for those
`paragraphs.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`through line by line.
` Q. The only sections in your discussion of the
`claim construction of meta-right that you cited in
`your declaration, the only sections of the
`'280 Patent are column 5, 46 to 48, column 5, 42 to
`44, and column 7, 24 to 30, right?
` A. I'm not sure.
` Q. And I'm looking at paragraphs 55 and 56 of
`your declaration.
` MR. MALONEY: Objection to the extent it
`mischaracterizes the declaration.
`BY THE WITNESS:
` A. Would you read me those paragraphs and
`citations again so I can check them.
` Q. Let's go through them one by one.
`Paragraph 55 you have a citation to the '280 Patent
`at 5, 46 to 48, right?
` A. Correct.
` Q. And paragraph 55 is discussing the claim
`construction of meta-right, right?
` A. It does.
` Q. And paragraph 56 of your declaration you
`cite 5, 42 to 44 and 7, 24 to 30, right?
` A. The citations are in paragraph 56, yes.
`
`Page 29
`
` DAVID MARTIN, Ph.D.
` Q. And you don't have other paragraphs of your
`declaration that advance a construction of
`meta-rights separate from 55 to 58, do you?
` MR. MALONEY: Objection to form.
`BY THE WITNESS:
` A. I don't recall.
` Q. Now, going back to the sentence at the
`beginning of the paragraph that you initially
`cited --
` A. Which paragraph?
` Q. The paragraph that starts at column 7, line
`23 of the '280 Patent. Are you there?
` A. Yes, sir.
` Q. And there it says "At a high level the
`process of enforcing and exercising meta-rights are
`the same as for usage rights." Are those processes
`for enforcing and exercising usage rights disclosed
`in the Stefik '012 Patent?
` A. I would say that Stefik '012 does describe
`things that could be characterized as enforcing and
`exercising usage rights?
` Q. At the end of the paragraph it also says
`"Thus, the mechanism for exercising and enforcing a
`meta-right can be the same as that for a usage
`
`TSG Reporting - Worldwide 877-702-9580
`
`8
`
`CBM2015-00040
`Exhibit 1033
`
`

`
`Page 30
`
`Page 31
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` DAVID MARTIN, Ph.D.
`right. For example, the mechanism disclosed in U.S.
`Patent No. 5,634,012 can be used." Do you see that?
` A. I do.
` Q. And that's the Stefik '012 Patent, right?
` A. It is.
` Q. And so do you understand this to be saying
`that the enforcing and exercising mechanism for
`meta-rights can be the same as the one disclosed in
`the Stefik '012 Patent for usage rights?
` A. I understand this to be saying that the
`inventors of the '280 thought that a mechanism built
`for the purpose of implementing an embodiment of the
`'012 Patent may be able to be repurposed in order to
`support the invention described in the '280 Patent.
`That's my understanding of their use of the word
`"mechanism" has to do with code reuse.
` Q. So the code in the Stefik '012 Patent can
`be reused to implement the exercising and enforcing
`of meta-rights in the '280 Patent?
` A. That's my understanding of the inventors'
`statement is they imagined that that code could be
`reusable to support the invention of the
`'280 Patent.
` Q. Could you also please look at column 9,
`
`Page 32
`
` DAVID MARTIN, Ph.D.
`way. So no, I wouldn't feel comfortable doing that
`without the ability to undertake a proper analysis,
`particularly given the presence of the construction
`of usage rights that I had in mind.
` Q. Okay. So you did not have any specific
`ones of the references cited by the '280 Patent in
`mind as other examples of known procedures for usage
`rights?
` A. I did not, and I don't -- my reading of
`this passage is that the inventors were not pointing
`to a particular one either.
` Q. So do you agree that the processes used in
`the Stefik '012 Patent for exercising and enforcing
`usage rights could also be used to exercise and
`enforce meta-rights?
` A. It seems possible. It's very difficult to
`say definitively, but yes, I would say that it's
`possible.
` Q. Other than references back to known
`procedures for exercising usage rights and to the
`way that usage rights are exercised and enforced in
`the Stefik '012 Patent, are there any disclosures of
`other mechanisms for enforcing and exercising
`meta-rights in the '280 Patent?
`
`1
`2
`3
`4
`5
`