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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` --------------------------------------X
` APPLE, INC., Petitioner,
` v.
` SMARTFLASH, LLC, Patent Owner,
` --------------------------------------X
` CBM2015-00028 (Patent 7, 334, 720 B2)
` CBM2015-00029 (Patent 7, 334, 720 B2)
` CMB2015-00031 (Patent 8, 336, 772 B2)
` CMB2015-00032 (Patent 8, 336, 772 B2)
` CMB2015-00033 (Patent 8, 336, 772 B2)
` --------------------------------------X
`
` VIDEOTAPED DEPOSITION OF ANTHONY J. WECHSELBERGER
` East Palo Alto, California
` July 22nd, 2015
` 8:03 a.m.
`
`
`
`
` Reported by:
` KELLI A. RINAUDO, CSR 6411, RMR, CRR, CCRR
` Job No.: 40121
`
`
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` --------------------------------------X
` APPLE, INC., Petitioner,
` v.
` SMARTFLASH, LLC, Patent Owner,
` --------------------------------------X
` CBM2015-00028 (Patent 7, 334, 720 B2)
` CBM2015-00029 (Patent 7, 334, 720 B2)
` CMB2015-00031 (Patent 8, 336, 772 B2)
` CMB2015-00032 (Patent 8, 336, 772 B2)
` CMB2015-00033 (Patent 8, 336, 772 B2)
` --------------------------------------X
`
` VIDEOTAPED DEPOSITION OF ANTHONY J. WECHSELBERGER
` East Palo Alto, California
` July 22nd, 2015
` 8:03 a.m.
`
`
`
`
` Reported by:
` KELLI A. RINAUDO, CSR 6411, RMR, CRR, CCRR
` Job No.: 40121
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` Anthony J. Wechselberger
` July 22, 2015
` 8:03 a.m.
`
`
`
` Videotaped deposition of ANTHONY J.
` WECHSELBERGER, the witness herein, held at Ropes &
` Gray, 1900 University Avenue, 6th Floor, East Palo
` Alto, California, pursuant to Notice, before KELLI A.
` RINAUDO, RMR, CRR, CCRR, CLR and CSR 6411 within the
` State of California.
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`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` A P P E A R A N C E S
` FOR THE PETITIONER:
` ROPES & GRAY
` 1900 University Avenue, 6th Floor
` East Palo Alto, CA 94303-2284
` 650.617.4028
` BY: LAUREN N. ROBINSON, ESQ.
` Lauren.Robinson@ropesgray.com
` DANIEL RICHARDS, ESQ.
` daniel.richards@ropesgray.com
`
`
` FOR THE PETITIONER:
` ROPES & GRAY
` 1211 Avenue of the Americas
` New York, NY 10036-8704
` 212.596.9000
` BY: CHING-LEE FUKUDA, ESQ.
` Ching-Lee.Fukuda@ropesgray.com
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`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` A P P E A R A N C E S (CONTINUED)
` FOR THE PATENT OWNER:
` DAVIDSON BERQUIST JACKSON & GOWDEY, LLP
` 8300 Greensboro Drive, Suite 500
` McLean, VA 22102
` BY: MICHAEL R. CASEY, Ph.D., ESQ.
` mcasey@dbjg.com
`
` ALSO PRESENT:
` JEFREE ANDERSON, Videographer
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` WEDNESDAY, JULY 22, 2015; 8:03 A.M.
`
` THE VIDEOGRAPHER: This begins the video
` deposition of Anthony Wechselberger in the matter of
` Apple, Incorporated, versus Smartflash, LLC, in the
` court -- United States Patent and Trademark Office
` before the Patent Trial and Appeal Board.
` This deposition is being held at 1900
` University Avenue in East Palo Alto, California, on
` July 22nd, 2015, at approximately 8:03 a.m.
` My name is Jefree Anderson from the firm of
` David Feldman Worldwide, and I am the legal video
` specialist.
` Our court reporter is Kelli Rinaudo in
` association with David Feldman Worldwide.
` Will counsel please introduce themselves?
` MS. FUKUDA: Ching-Lee Fukuda from Ropes and
` Gray representing petitioner, Apple. And with me are
` my colleagues Lauren Robinson and Dan Richards.
` MR. CASEY: I'm Michael Casey from the firm
` of Davidson Berquist Jackson & Gowdey representing the
` patent owner, Smartflash, LLC.
` THE VIDEOGRAPHER: Will the court reporter
` please swear in the witness.
` ANTHONY WECHSELBERGER, being duly sworn on oath,
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`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` was examined and
` testified as follows:
` THE VIDEOGRAPHER: Please, begin.
` EXAMINATION
` BY MR. CASEY:
` Q. Mr. Wechselberger, you brought a bunch of
` documents again. Can I ask you what's in front of
` you?
` A. Yes.
` Q. These are five declarations I made. These
` are the PTAB decisions on the -- on the certain
` claims.
` I'll talk about that in a second. These are
` the two, the '772 and '720 patent. These are examples
` of prior art.
` These are five sets of charts which show
` examples of prior art citations taken from my
` declarations against each of the preambles and claim
` elements for the '720 and '772 patents. You may
` recall that I did one of these last time to help --
` should you ask me for supporting details, this is a
` cheat sheet that gets me into the declaration in the
` most expeditious way.
` MS. FUKUDA: And, Counsel, we'll hand you a
` copy of that set of charts.
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` THE WITNESS: And the way you read this is
` the bold on the top right, "Wechselberger Declaration
` (WD)," those are paragraphs in the declaration that
` overall address '720, claim 1, in this example. And
` then for each claim element there are more directives
` into the paragraphs and pages of the declarations.
` BY MR. CASEY:
` Q. Okay. I'm going to have to look at that and
` see if it matches with the declaration.
` Okay. So is there writing on any of the
` documents in front of you, or are they just copies?
` THE WITNESS: No writing, just copies.
` BY MR. CASEY:
` Q. Unless you prefer to use your own, because
` yours seems to be much reduced compared to the
` declaration you actually filed, I'm going to hand you
` copies of what has been premarked as Apple Exhibit
` 1419 in CBM 2015-00033. It's your declaration.
` I don't want to scratch your table, so --
` A. Got it. Yeah, these are one-sided. Does it
` matter which one I use?
` MS. FUKUDA: No. You can just use what he
` gave you.
` BY MR. CASEY:
` Q. Do you recognize the document you have been
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`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` handed?
` A. Yes, this is one of my declarations. This
` one is with the '772 patent.
` Q. Great.
` MS. FUKUDA: Looks to be the same as the copy
` Mr. Wechselberger has, only his is double-sided and
` yours is single-sided, right?
` MR. CASEY: Right. Just does his version
` have the chart at the end?
` MS. FUKUDA: It does.
` BY MR. CASEY:
` Q. So if I could ask you to turn to paragraph 70
` of your declaration.
` A. Yes.
` Q. So you provided the declaration or an opinion
` that includes your opinion on the validity of some of
` the claims of the '772 patent under 35 U.S.C. 101; is
` that correct?
` A. Yes.
` Q. Is it your understanding that statutory
` subject matter -- the question of statutory subject
` matter is a factual question or a legal question?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I don't -- I'm not an attorney.
` I don't know, to answer that.
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` BY MR. CASEY:
` Q. So you don't know if you were being asked to
` make a legal analysis or a -- or an analysis of some
` other nature; is that correct?
` MS. FUKUDA: Objection to form.
` THE WITNESS: Well, I'm not capable of making
` a legal analysis. I'm capable of providing a factual
` and opinion -- opinions.
` BY MR. CASEY:
` Q. I would like to ask you about the methodology
` that you used to arrive at your opinions. In
` paragraph 71, you state that you understand that a
` patent claim involving an abstract idea must contain
` "other elements or a combination of elements sometimes
` referred to as an 'inventive concept,' that are
` 'sufficient to ensure that the patent in practice
` amounts to significantly more than a patent upon the
` abstract idea itself,'" Do you see that?
` A. I do.
` Q. Where did you receive -- sorry. Strike that.
` How did you develop the methodology which
` enabled you to assess whether something was
` significantly more than a patent upon the abstract
` idea itself?
` MS. FUKUDA: Objection to form.
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` THE WITNESS: I was instructed and educated
` as to the legal concepts and tests behind this section
` 101, and my understanding, as represented in the words
` that paragraph, for example, 70 and 71 lay down. And
` from that point on, it's my professional experience
` and knowledge about the technologies and steps and
` methods that revolve around the asserted claims that
` were brought to bear.
` BY MR. CASEY:
` Q. What's your understanding of "significantly
` more" in the context that you used it in paragraph 71?
` A. I don't know that there's a hard answer to
` that question. "Significantly more" could be as
` simple as more than half.
` Q. Could it be less than half? Sorry. Strike
` that.
` What do you mean "by more than half"? More
` than half of what?
` A. I'm just rereading the sentence. "Sufficient
` to ensure that the patent practice amounts to
` significantly more than the patent upon the abstract
` idea itself."
` Again, I don't know -- I don't know how to
` quantify that for you. I think it's just a judgment.
` Q. How do you know that your judgment is
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` repeatable?
` MS. FUKUDA: Objection to form.
` BY MR. CASEY:
` Q. Let me ask the question again.
` How do you know that your judgment as to what
` constitutes "significantly more" is repeatable between
` patents --
` MS. FUKUDA: Objection.
` MR. CASEY: -- or even between claims?
` MS. FUKUDA: Objection to form.
` THE WITNESS: The best I can answer for that,
` it's just going to have to be my opinion.
` BY MR. CASEY:
` Q. What is the false positive percentage of your
` analysis when it comes to significantly more in
` assessing patent claims?
` MS. FUKUDA: Objection to form.
` THE WITNESS: Ask that again, please.
` BY MR. CASEY:
` Q. Do you have an understanding of what false
` positives are in tests?
` A. Yes, when the test concludes something
` happened or didn't happen or it was a positive
` outcome, in fact, that it was not that way. It's
` false.
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` Q. Correct. So how do you know what the
` percentage is when you are applying your judgment as
` to whether or not a claim is significantly more than a
` patent upon the abstract idea itself?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I believe in my opinions, I
` believe in my experience, I believe in my background
` in this area, and I don't think I have any false
` positives in this case.
` BY MR. CASEY:
` Q. Which patents did you look at that you
` believed were patentable and a court agreed with you
` were patentable?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I don't understand the
` question.
` BY MR. CASEY:
` Q. Did you look at any patents and analyze their
` claims, determine that those claims are patentable and
` then cross-check your answer with the finding of a
` District Court judge or patent office or the
` International Trade Commission on their issue -- on
` their findings of validity under 101?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I still don't understand what
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` you just asked me.
` BY MR. CASEY:
` Q. Have you ever analyzed a patent under 101 and
` found it to be patentable?
` MS. FUKUDA: I want to just caution the
` witness. You can answer that "yes" or "no," but be
` aware that to the extent that you have confidential
` engagements, you know, do not reveal the content of
` those types of engagements.
` THE WITNESS: I can't think of anything else
` beyond the Smartflash cases at the moment.
` BY MR. CASEY:
` Q. So we're clear, you provided an opinion --
` strike that.
` You have provided opinions that all of the
` claims that you have analyzed under 35 U.S.C. 101 in
` the Smartflash cases are invalid as being direct
` non-statutory subject matter; is that correct?
` A. Read the question in complete form again,
` please.
` Q. You have provided opinions that all of the
` claims that you have analyzed under 35 U.S.C. 101 in
` the Smartflash cases are invalid as being directed to
` non-statutory subject matter, correct?
` A. I don't know what "non-statutory subject
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` matter" means. I'm not an attorney.
` Q. You have provided opinions that all of the
` claims that you've analyzed under 35 U.S.C. 101 in the
` Smartflash Technologies cases are invalid as -- I'm
` sorry. Strike that.
` You have provided opinions that all of the
` claims that you have analyzed under 35 U.S.C. 101 from
` the Smartflash cases are invalid under 35 U.S.C. 101,
` correct?
` A. Well, when you say "all of the claims" that I
` have analyzed, for all those that I have analyzed in
` conjunction with this deposition, I found them to be
` invalid under 101. I found none of them to be valid
` under 101.
` Q. Are there any Smartflash cases, even outside
` of the present deposition, that you found claims to be
` patentable under 101 and provided an opinion as to the
` patentability under 101 in the Smartflash cases?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I cannot recall any instance
` where I have done a 101 analysis of Smartflash's
` claims where I disagreed with the PTAB, and so I've
` agreed with them on all counts, and in all cases my
` opinion is that they were invalid.
` THE COURT REPORTER: "Valid" or "invalid"?
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` MR. CASEY: An important word to make sure we
` get right on the record. Thank you.
` BY MR. CASEY:
` Q. And as Ms. Fukuda said, I don't -- for the
` purposes of my next question, I'm not asking for
` anything that might be confidential or privileged, but
` you have not given an opinion on whether the claims of
` any other patent are valid under 35 U.S.C. 101,
` correct?
` A. I can recall having been asked to consider
` that as part of my expert witness work, and concluding
` that we didn't want to go down that road in my work
` in --
` MR. CASEY: Mr. Wechselberger --
` MS. FUKUDA: Just be careful to the extent
` these are confidential engagements with other parties.
` Do not reveal what you were either asked to do or what
` the process was.
` THE WITNESS: Oh.
` MS. FUKUDA: You can answer the final
` conclusions without identifying parties, claims.
` THE WITNESS: Okay.
` BY MR. CASEY:
` Q. I was trying to ask you a yes-or-no question
` that would avoid some of those issues. So maybe we
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` can go back and try that again. Or if you can answer
` succinctly: No, you haven't given --
` THE WITNESS: I can give you a "yes," "no."
` BY MR. CASEY:
` Q. Okay. You have not given an opinion on
` whether the claims of any other patent are valid under
` 35 U.S.C. 101, correct?
` A. That is correct.
` Q. In developing your methodology for
` determining whether or not the claims of the
` Smartflash patent in CBM 2015-00033 were valid, what
` court decisions did you look at for guidance on what
` does constitute "significantly more"?
` A. If I haven't mentioned the court decisions in
` my declaration, then I had not done that investigation
` or research.
` Q. Have you ever heard of a case called "DDR
` Holdings"?
` A. DDR?
` Q. Uh-huh.
` A. I have, yes.
` Q. What do you know of it?
` MS. FUKUDA: I'm just going to caution the
` witness that you can reveal your understanding, but
` please do not reveal the content of discussions you
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` may have had with counsel about the case, but you can
` reveal what your understanding of the case is.
` MR. CASEY: Maybe I'll see if I can ask a
` narrower question so it will give Ms. Fukuda a chance
` to object if there is a problem.
` BY MR. CASEY:
` Q. What is your understanding of the claims that
` were reviewed in DDR Holdings?
` MS. FUKUDA: Same caution, but you can answer
` as to your own understanding.
` THE WITNESS: I haven't been exposed to the
` claims in that case. I seem to recall that the
` subject matter had something to do with the Internet.
` MR. CASEY: Can we go off the record for just
` one second?
` THE VIDEOGRAPHER: Going off the record. The
` time is 8:25.
` (Pause.)
` THE VIDEOGRAPHER: We are back on the record.
` The time is 8:27.
` BY MR. CASEY:
` Q. So, Mr. Wechselberger, in paragraph 76 of
` your declaration, still in CBM 2015-00033, you state
` that "All of the challenged claims are unpatentable
` under 35 U.S.C. 101 because they are directed to
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` ineligible subject matter -- in particular, the
` abstract idea of paying for and controlling access to
` content." Do you see that?
` A. Yes.
` Q. How did you determine -- sorry, strike that.
` What methodology did you utilize in
` determining what the abstract idea was as it relates
` to the challenged claims of the '772 patent?
` A. I've been working with and around the
` Smartflash patents for well over a year now, and I'm
` pretty intimately familiar with what the specification
` discloses and also what the claims are directed to.
` And so there isn't a formalized methodology,
` but when you become familiar with the Smartflash
` patents and the claims, it's clear what they are
` about. And that, the abstract idea of paying for and
` controlling access to content, is central to what all
` these claims are about, even though the particular
` machines that are active in any particular claim may
` be different machines.
` Q. Why didn't you state that the abstract idea
` was instead for controlling access to content rather
` than paying for and controlling access to content?
` A. Once again, please.
` Q. Let me flip the question around and see if it
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` works easier the other way around.
` Couldn't you have easily -- as easily said
` that the abstract idea was for controlling access to
` content, instead of paying for and controlling access
` to content?
` A. I could have.
` Q. And couldn't you have -- as easily have said
` that it was for paying for content instead of paying
` for and controlling access to content?
` A. I don't agree with that. Most of the claims
` are associated with, if not all the claims,
` controlling access to content. And most of them have
` something to do with paying for the content, which is
` why I included payment.
` Q. So then not all the challenged claims are
` directed to the general concept of paying for and
` controlling access to content, but rather some are
` directed to just controlling access to content; is
` that right?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I would have to look at each of
` the claims that are associated with this particular --
` these petitions to answer that.
` BY MR. CASEY:
` Q. If one were to implement a computer-
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` implemented version of paying for and controlling
` access to content, what would be the minimum number of
` elements one would need in order to achieve that
` function?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I have never considered that
` hypothetical, and I don't know how to answer it on the
` spot.
` BY MR. CASEY:
` Q. What are the minimum number of elements
` required to pay for and control access to content?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I haven't considered that
` hypothetical question. I don't know how to answer it
` on the spot.
` BY MR. CASEY:
` Q. When you say in paragraph 76 of your
` declaration, "The abstract idea of paying for and
` controlling access to content," what is involved, in
` your mind, in the phrase "paying for and controlling
` access to content"?
` MS. FUKUDA: Objection to form.
` THE WITNESS: What was the question again?
` BY MR. CASEY:
` Q. When you say in paragraph 76 of your
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` declaration, "The abstract idea of paying for and
` controlling access to content," what is involved, in
` your mind, in the phrase "paying for and controlling
` access to content"?
` MS. FUKUDA: Objection to form.
` THE WITNESS: Simply the concept of paying
` for content, and in conjunction with paying for the
` content, controlling access to the content based upon
` that payment.
` BY MR. CASEY:
` Q. How many elements are required to pay for and
` control access to content?
` MS. FUKUDA: Objection to form.
` THE WITNESS: Explain what you mean by
` "elements."
` BY MR. CASEY:
` Q. By "elements," I mean people, computers,
` anything that, as you say, achieves the abstract idea
` of paying for and controlling access to content?
` MS. FUKUDA: Objection to form.
` THE WITNESS: I haven't considered that
` hypothetical. I don't know how to answer it. The
` question is quite vague and very, very broad. So it
` could be a few elements, it could be many elements
` depending on the specific application or intent, so I
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` don't know.
` BY MR. CASEY:
` Q. So how do you determine how many more
` elements are in the claims, the '772 patent, than in
` the abstract -- than in the elements of the abstract
` idea of paying for and controlling access to content?
` MS. FUKUDA: Objection to form.
` THE WITNESS: The issue, in my opinion, has
` nothing do with the number of elements. The issue has
` to do with -- in the first place, in the case of the
` Smartflash claims, all of the elements and steps are
` routine, conventional, and well-known. So no matter
` how many pile up, it doesn't matter. There's nothing
` inventive -- or inventive being added. So you can
` have 20 elements or 6 elements, and my opinion doesn't
` change in the Smartflash case.
` BY MR. CASEY:
` Q. So you didn't do an analysis of the
` difference between any of the Smartflash claims in the
` '772 patent and the elements that would enable one to
` pay for and control access to content in general?
` MS. FUKUDA: Objection to form.
` THE WITNESS: Read the question completely
` again, please.
` BY MR. CASEY:
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` Q. So you didn't do an analysis of the
` difference between any of the Smartflash claims in the
` '772 patent and the elements that would enable one to
` pay for and control access to content in general?
` MS. FUKUDA: Same objection.
` THE WITNESS: I did an analysis of the
` Smartflash claims, and I analyzed them element by
` element as well as a whole. And I am not of the
` opinion necessarily that they don't -- if you follow
` those or practice those elements, it was not my
` opinion that says you can't pay for and control access
` to content. They explain to do that.
` I'm just saying, there is no minimum number
` of elements, nor maximum number of elements, if I'm
` understanding the question. I don't -- there isn't
` really anything to analyze. The claims say what they
` say.
` BY MR. CASEY:
` Q. I'm going to hand you what's been previously
` marked in this case as Apple Exhibit 1201 -- actually,
` this -- I'll give you the patent number because it
` changes between CBMs. So I'm going to hand you what
` is U.S. Patent Number 8,336,772, with your counsel's
` permission, although I understand you probably already
` have a copy.
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` Do you have it?
` A. Yes, I do.
` Q. If I could ask you to turn to claim 25,
` please.
` A. I am there.
` Q. Claim 25 describes a handheld multimedia
` terminal for retrieving and accessing protected
` multimedia content. Do you see that?
` A. Yes.
` Q. The first element of claim 25 is a wireless
` interface configured to interface with a wireless
` network for communicating with the data supplier. Do
` you see that?
` A. I do.
` Q. Is the wireless interface recited in claim 25
` required in order to meet the abstract idea of paying
` for and controlling access to content?
` MS. FUKUDA: Objection to form.
` BY MR. CASEY:
` Q. Let me say it differently, Mr.
` Wechselberger.
` If one in the field of handheld multimedia
` terminals wanted to pay for and control access to
` content, would they need to utilize a wireless
` interface configured to interface with a wireless
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` network for communicating with a data supplier in
` order to achieve the result of paying for and
` controlling access to content?
` A. Not necessarily.
` Q. If one in the field of handheld multimedia
` terminals wanted to pay for and control access to
` content, would they need to utilize a non-volatile
` memory configured to store multimedia content wherein
` the media content comprises one or more music data,
` video data, and computer game data?
` A. Not necessarily.
` Q. If one in the field of handheld multimedia
` terminals wanted to pay for and control access to
` content, would they need to utilize a display for
` displaying one or both -- sorry. Strike that.
` If one in the field of handheld multimedia
` terminals wanted to pay for and control access to
` content, would they need to utilize a user interface
` to allow a user to select and play said multimedia
` content?
` A. Not necessarily.
` Q. If one in the field of handheld multimedia --
` sorry.
` If one in the field of handheld multimedia
` terminals wanted to pay for and control access to
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` content, would they need to utilize a display for
` displaying one or both of said played multimedia
` content and data relating to said played multimedia
` content?
` A. Not necessarily.
` Q. Does the general concept of providing access
` to content based on payment and rules require the use
` of a wireless interface configured to interface with a
` wireless network for communicating with the data
` supplier as claimed in claim 25 of the '772 patent?
` A. Read the first part of that question again
` please.
` Q. Does the general concept of providing access
` to content based on payment and rules require the use
` of a wireless interface configured to interface with a
` wireless network for communicating with the data
` supplier as claimed in claim 25 of the '772 patent?
` A. Not necessarily.
` Q. Does the general concept of providing access
` to content based on payment and rules require the use
` of a non-volatile memory configured to store
` multimedia content?
` A. Not necessarily.
` Q. Does the general concept of providing access
` to content based on payment and rules require the use
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` of a user interface to allow a user to select and play
` said multimedia content?
` A. Not necessarily.
` Q. Does the general concept of providing access
` to content based on payment and rules require the use
` of a display for displaying one or both of said played
` multimedia content and data relating to said played
` multimedia content as claimed in claim 25 of the '772
` patent?
` A. Not necessarily.
` Q. Does the general concept of providing access
` to content based on payment and rules require any of
` the 10 code limitations of claim 25 of the '772
` patent?
`
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