Alfred Weaver, Ph.D. - February 10, 2017
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` _____________________
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________
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` UNITED SERVICES AUTOMOBILE ASSOCIATION,
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` Petitioner,
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` v.
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` ASGHARI-KAMRANI, ET AL.,
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` Patent Owner,
`
` _____________________
`
` Case CBM2016-00064
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` Case CBM2016-00063
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` Patent 8,266,432
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`
`
` Videotaped Deposition of ALFRED WEAVER, PH.D.,
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`held at the offices of MH2 Technology Law Group,
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`1951 Kidwell Drive, Suite 550, Tysons Corner,
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`Virginia, commencing at 9:04 a.m., Friday, February
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`10, 2017, before KAREN YOUNG, Notary Public.
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`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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`USAA 1068
`USAA v Asghari-Kamrani
`CBM2016-00063
`CBM2016-00064
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` _____________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________
`
` UNITED SERVICES AUTOMOBILE ASSOCIATION,
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` Petitioner,
`
` v.
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` ASGHARI-KAMRANI, ET AL.,
`
` Patent Owner,
`
` _____________________
`
` Case CBM2016-00064
`
` Case CBM2016-00063
`
` Patent 8,266,432
`
`
`
` Videotaped Deposition of ALFRED WEAVER, PH.D.,
`
`held at the offices of MH2 Technology Law Group,
`
`1951 Kidwell Drive, Suite 550, Tysons Corner,
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`Virginia, commencing at 9:04 a.m., Friday, February
`
`10, 2017, before KAREN YOUNG, Notary Public.
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`GregoryEdwards, LLC | Worldwide Court Reporting
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`USAA 1068
`USAA v Asghari-Kamrani
`CBM2016-00063
`CBM2016-00064
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 2
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` A P P E A R A N C E S O F C O U N S E L
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`FOR UNITED SERVICES AUTOMOBILE ASSOCIATION:
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` FISH & RICHARDSON P.C.
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` BY: TIMOTHY W. RIFFE, ESQUIRE
`
` BRIAN J. GOLDBERG, ESQUIRE
`
` THOMAS A. ROZYLOWICZ, ESQUIRE, BY PHONE
`
` 1425 K Street, Northwest
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` 11th Floor
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` Washington, D.C. 20005
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` bgoldberg@fr.com
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` riffe@fr.com
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` (202) 783-5070
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`
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` FISH & RICHARDSON P.C.
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` BY: MATTHEW C. BERNTSEN, ESQUIRE
`
` One Marina Park Drive
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` Boston, Massachusetts 02210-1878
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` berntsen@fr.com
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` (617) 542-5070
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 3
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` A P P E A R A N C E S O F C O U N S E L
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`FOR THE PATENT OWNER:
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` NOVICK, KIM & LEE, PLLC
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` BY: STEVE JAE YOUN KIM, ESQUIRE
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` 3251 Old Lee Highway, Suite 404
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` Fairfax, Virginia 22030
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` skim@nkllaw.com
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` (703) 745-5495
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`
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` MH2 TECHNOLOGY LAW GROUP
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` BY: STEVEN ASHBURN, ESQUIRE
`
` 1951 Kidwell Drive, Suite 550
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` Tysons Corner, Virginia 22182
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` sashburn@mh2law.com
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` (703) 917-0000
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`
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`ALSO PRESENT:
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` T.J. O'Toole, Videographer
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` Kamram Asghari-Kamrani
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 4
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` C O N T E N T S
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`WITNESS: ALFRED WEAVER, PH.D.
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`EXAMINATION BY: PAGE
`
` Mr. Riffe.................................. 7
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` Mr. Kim.................................... 216
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` *****
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 5
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` E X H I B I T S
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` ALFRED WEAVER, PH.D.
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`
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`NUMBER DESCRIPTION IDENTIFIED
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`Exhibit 1 Declaration of Dr. Alfred C. Weaver........ 34
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`Exhibit 2 Sticky Note................................ 43
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`Exhibit 3 U.S. Patent No. 8,266,432.................. 44
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`Exhibit 4 U.S. Patent No. 8,281,129.................. 47
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`Exhibit 5 U.S. Patent No. 7,444,676.................. 47
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`Exhibit 6 Decision................................... 49
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`Exhibit 7 Response to Office Action.................. 84
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`Exhibit 8 Amendment and Remarks...................... 168
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 6
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` P R O C E E D I N G S
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` - - -
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` THE VIDEOGRAPHER: On the record with Disk
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`1 of the video deposition of Dr. Alfred Weaver, taken
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`by the petitioner in the matter of United Services
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`Automobile Association versus Kamran Asghari-Kamrani
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`et al., being heard before the United States Patent
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`and Trademark Office in the Patent Trial and Appeal
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`Board, Case Number CBM2016-00064.
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` This deposition is being held at the
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`offices of MH2 Technology Group, located at 1951
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`Kidwell Drive in Tysons Corner, Virginia on February
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`10th, 2017 at approximately 9:04 a.m. My name is
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`T.J. O'Toole. I am the certified legal video
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`specialist. The court reporter is Karen Young. We
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`are both here representing Gregory Edwards LLC. Will
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`counsel please introduce themselves and indicate
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`which parties they represent.
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` MR. RIFFE: Tim Riffe with Fish &
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`Richardson. I have with me Brian Goldberg also of
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`Fish & Richardson. On the phone are Thomas
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Rozylowicz from Fish & Richardson and Matthew
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`Berntsen from Fish & Richardson, and we're
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`representing petitioner, USAA.
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` MR. KIM: My name is Jae Youn Kim of
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`Novick, Kim & Lee, first name spelled J-A-E, space,
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`Y-O-U-N, and last name spells K-I-M. I am the lead
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`counsel for the patent owner, and I will be defending
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`the witness. With me to the left is Steven Ashburn,
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`which is spells S-T-E-V-E-N, space, A-S-H-B-U-R-N,
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`counsel for the patent owner. He's from MH2
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`Technology Law Group. Further with me to the right
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`is the patent owner, Kamran Asghari-Kamrani, which is
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`spells K-A-M-R-A-M, space, A-S-H-G-H-A-R-I, hyphen,
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`K-A-M-R-A-N-I.
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` ALFRED WEAVER, PH.D.,
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` having been first duly sworn by
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` Karen Young, a Notary Public
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` within and for the Commonwealth of
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` Virginia, was examined and testified as
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` follows:
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` - - -
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` EXAMINATION BY COUNSEL FOR THE PETITIONER
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`Alfred Weaver, Ph.D. - February 10, 2017
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` BY MR. RIFFE:
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` Q. Before we get started, I think there's a
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`stipulation we need to note for the record that this
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`deposition will be applicable to both CBM2016-00063
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`and CBM2016-00064. Just note that for the record.
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`Good morning. Could you please state your full name
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`for the record?
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` A. Alfred Charles Weaver.
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` Q. Good morning, Dr. Weaver. We've met
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`before, haven't we?
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` A. Yes, we have.
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` Q. Good to see you again. Could you please
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`state your home address for the record?
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` A. 1400 Ballard Woods Court, Charlottesville,
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`Virginia 22901.
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` Q. Okay, and can you please state your work
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`address for the record?
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` A. It's 85 Engineers Way, Charlottesville,
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`Virginia 22904.
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` Q. And are you still a professor at the
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`University of Virginia?
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` A. Yes, sir, I am.
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 9
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` Q. And approximately how long have you been
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`there?
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` A. Forty years.
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` Q. You understand you've just taken an oath as
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`if you were testifying in a court of law?
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` A. Yes.
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` Q. Is there any reason you can't give truthful
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`and accurate testimony today?
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` A. No.
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` Q. Do you have any medical conditions we need
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`to be aware of?
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` A. No.
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` Q. Dr. Weaver, you've been deposed a number of
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`times before in both litigation contexts and
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`post-grant proceeding, and when I refer to
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`post-grant, I'm talking about inter partes review
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`proceedings or covered business method proceedings.
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`Do you recall those?
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` A. Yes.
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` Q. Approximately how many times have you been
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`deposed?
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` A. Twelve to 15.
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 10
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` Q. And were those in litigation contexts or
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`post-grant context?
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` A. Most were litigation.
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` Q. Approximately how many times have you been
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`deposed in post-grant proceedings?
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` A. Maybe twice.
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` Q. And would this be your third one in a
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`post-grant proceeding?
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` A. It would.
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` Q. And then the deposition that you and I
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`conducted with each other, that was in a CBM
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`proceeding, correct?
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` A. That's correct.
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` Q. About a year and a half ago or so?
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` A. Yes, sir.
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` Q. And that was related to the eBay-PAID CBMs,
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`correct?
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` A. I don't remember exactly.
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` Q. In your C.V., you note that you represented
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`PAID in those CBMs. Do you recall that?
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` A. Yes.
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` Q. Do you recall the outcome of those CBMs?
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`Alfred Weaver, Ph.D. - February 10, 2017
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` A. No.
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` Q. So just to make sure we're talking on the
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`same page today, there are a lot of terms floating
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`around in these CBMs, as I'm sure you're aware and
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`I'm aware. When I use the term "patent owner" or
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`"Asghari-Kamranis," I'm referring to Nader or Nader
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`Asghari-Kamrani and Kamran Asghari-Kamrani, who I
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`believe is sitting here in the room today. You
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`understand that?
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` A. Yes.
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` Q. And when I use the term "USAA" or
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`"petitioner," I'm referring to United Services
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`Automobile Association, Inc. Do you understand that?
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` A. Yes.
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` Q. When I use the term the '432 patent, I'm
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`referring to U.S. patent number 8,266,432. Do you
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`understand that?
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` A. Yes.
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` Q. And when I use the term the '129 or '129
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`patent, I'm referring to U.S. patent number
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`8,281,129. Do you understand that?
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` A. Yes.
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`Alfred Weaver, Ph.D. - February 10, 2017
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` Q. And when I use the term '676 patent or '676
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`patent, I'm referring to U.S. patent number
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`7,444,676. Do you understand that?
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` A. Yes.
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` Q. And just a few more preliminaries. When I
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`use the phrase "these CBMs," I'm referring to the two
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`CBMs that the petitioner filed regarding the '432
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`patent. Do you understand that?
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` A. Yes.
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` Q. And you provided a declaration applicable
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`to both of those CBMs; is that correct?
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` A. That's correct.
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` Q. And when I use the acronym POSITA or
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`POSITA, however you'd like to pronounce it, that's
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`P-O-S-I-T-A, I'm referring to a person of ordinary
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`skill in the art. Do you understand that?
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` A. I do.
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` Q. And you've used that term I believe in your
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`declarations, correct?
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` A. Yes, I did.
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` Q. Okay. How did you prepare for today's
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`deposition?
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 13
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` A. I read the patents, I read my declaration,
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`and I spent yesterday here with the attorneys.
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` Q. Which attorneys?
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` A. That would be Mr. Kim and Mr. Ashburn.
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` Q. And how long did you spend with Mr. Kim and
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`Mr. Ashburn yesterday preparing for your deposition?
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` A. From 10:00 'til 6:00, so eight hours.
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` Q. And did you review any documents during
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`that time from 10:00 to 6:00 yesterday in preparing
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`for your deposition?
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` A. Yes.
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` Q. What were those documents?
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` A. There were four patents and my declaration.
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` Q. When you say the four patents, one was the
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`'432 patent?
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` A. It was.
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` Q. One was the '129 patent?
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` A. Correct.
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` Q. And one was the '676 patent?
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` A. Correct.
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` Q. And what was the other patent? Do you
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`recall?
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 14
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` A. Yes, the '837.
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` Q. '837. And the '837, that's the -- if I
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`refer to that as the grandparent application to the
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`'432, do you understand what I'm talking about?
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` A. Yes.
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` Q. Other than the four patents and your
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`declaration, did you review any other documents in
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`preparing for your deposition today?
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` A. If we're talking about yesterday, that's
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`all.
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` Q. Prior to yesterday, what did you review in
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`preparing for your deposition?
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` A. I have a list of them in my declaration.
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` Q. Okay. Did you review those documents in
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`preparing for your deposition today?
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` A. Yes.
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` Q. Did you speak with any other attorneys
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`outside of Mr. Ashburn and Mr. Kim, who are present
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`here today, in preparing for your deposition?
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` A. No.
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` Q. Did you speak with any counsel from Mei &
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`Mark law firm in preparing for your deposition?
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`Alfred Weaver, Ph.D. - February 10, 2017
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`Page 15
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` A. Not about the deposition, no.
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` Q. Did you speak to them about something else?
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` A. Yes.
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` Q. What was that?
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` MR. KIM: Objection, privilege.
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` A. I understand it's privileged.
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` Q. So you're not going to answer the question?
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` A. I will take instruction from the attorneys.
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` Q. So I'm asking you -- you identified other
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`counsel that you've spoken to about something else.
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`I'm asking what was that something else.
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` A. I'm happy to answer if it's permitted.
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` Q. Well, your counsel has not instructed you
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`not to answer, so I want an answer. I'm not asking
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`for the substance. I'm just asking you what -- what
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`topics did you discuss.
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` MR. KIM: You may answer --
`
` BY MR. RIFFE:
`
` Q. Did you -- let me rephrase that. Did you
`
`work on -- did you work with attorneys from Mei &
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`Mark on your declaration that you've prepared and
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`submitted in these CBM proceedings?
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`GregoryEdwards, LLC | Worldwide Court Reporting
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`Alfred Weaver, Ph.D. - February 10, 2017
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` A. No.
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` Q. Now, you're working as the litigation
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`expert in this proceeding as well, correct?
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` A. That -- that's my understanding, yes.
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` Q. And you're preparing to testify as the
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`expert in that litigation, correct?
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` A. I assume so.
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` Q. And are you working with attorneys from Mei
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`& Mark in preparation for that work with respect to
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`the litigation?
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` MR. KIM: Objection, relevance.
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` A. I will be.
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` Q. You haven't yet?
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` A. I haven't yet.
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` Q. And when were you retained to be the expert
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`in the litigation context?
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` MR. KIM: Objection, relevance.
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` A. There was no separate engagement.
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` Q. When were you engaged in the beginning to
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`work on the CBM proceedings?
`
` A. About November 2016.
`
` Q. Do you recall when in November 2016 you
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`GregoryEdwards, LLC | Worldwide Court Reporting
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`Alfred Weaver, Ph.D. - February 10, 2017
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`were retained?
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` A. No.
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` Q. Was it before Thanksgiving?
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` A. I don't remember.
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` Q. You submitted your declaration and signed
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`it on December 5th of 2016, correct?
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` A. That's right.
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` Q. And approximately how many hours did you
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`spend on your declaration after you were retained in
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`November of 2016 until you signed the declaration on
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`December 5th?
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` A. I don't -- I don't have a memory of any
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`particular number, but as an estimate, 50 hours.
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` Q. And take me through the process of how you
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`-- you drafted your declaration that you submitted in
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`the CBM proceedings.
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` A. So I had telephone calls with the
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`attorneys, and we jointly created a list of the
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`topics that needed to be covered, and then I wrote
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`the first draft of the declaration. I submitted that
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`to the attorneys. They made some comments. I made
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`some changes, and we went through five I think
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`Alfred Weaver, Ph.D. - February 10, 2017
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`iterations of my creating the -- the declaration
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`until I finally thought I had it right. Even so,
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`over the past two days, I've -- I've found some typos
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`in the document that I would like to correct.
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` Q. Okay. We'll have an opportunity, but do
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`you recall what those typos are sitting here right
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`now?
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` A. I've got them -- they're in the -- in the
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`other office down the hall. I can go get them at any
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`time.
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` Q. And so when you say they're in the office
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`down the hall, have you made notations to a draft or
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`a part of your declaration?
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` A. No, I have a sticky note with the paragraph
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`numbers.
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` Q. Okay.
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` A. And then once I see the report and the
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`paragraph number, I'll recall what the error was and
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`can correct it.
`
` Q. And you noted that these are typos. Were
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`there any substantive errors that you noted in your
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`declaration?
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`GregoryEdwards, LLC | Worldwide Court Reporting
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`Alfred Weaver, Ph.D. - February 10, 2017
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` A. No.
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` Q. Well, maybe at the break we'll give you an
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`opportunity to get that sticky note.
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` A. Okie doke.
`
` Q. When were you first notified that you would
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`be working as an expert on the litigation between
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`USAA and patent owner?
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` MR. KIM: Objection, relevance.
`
` A. Middle January.
`
` Q. And were you notified by phone from counsel
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`as to that point?
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` MR. KIM: Objection, relevance.
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` A. It's -- it wasn't a notification. It was a
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`request, and I acceded to that request.
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` Q. And you're billing at a rate of $400 per
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`hour for the CBM proceedings, correct?
`
` A. That's right.
`
` Q. Is that going to be your billable rate for
`
`the litigation support as well?
`
` MR. KIM: Objection, relevance.
`
` A. Yes, it is.
`
` Q. Do you charge a different rate for
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`Alfred Weaver, Ph.D. - February 10, 2017
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`conducting depositions as opposed to when you're
`
`conducting your technical analysis for these
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`proceedings?
`
` A. No.
`
` Q. So you charge $400 an hour regardless of
`
`the type of work that you're doing; is that correct?
`
` A. That's correct.
`
` Q. Did you speak with either of Messrs. Nader
`
`Asghari-Kamrani or Kamran Asghari-Kamrani in
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`preparation for today's deposition?
`
` A. Yes.
`
` Q. And when did you speak with them?
`
` A. Yesterday.
`
` Q. Were they present during the meetings that
`
`you had with counsel?
`
` A. Yes.
`
` Q. Were both of the Asghari-Kamrani
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`individuals present during your deposition
`
`preparation?
`
` A. Yes.
`
` Q. Is there a reason you didn't identify them
`
`earlier when I asked you who you met with yesterday
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`GregoryEdwards, LLC | Worldwide Court Reporting
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`Alfred Weaver, Ph.D. - February 10, 2017
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`to prepare for your deposition?
`
` A. Either your question or my answer was
`
`phrased as what lawyers did I meet with.
`
` Q. I believe I might have asked you who you
`
`met with, but we'll take it at face value. And were
`
`they present for the entirety of your preparation
`
`yesterday, I believe you said between 10:00 and 6:00
`
`p.m.?
`
` A. Yes, they were.
`
` Q. And what specifically did you speak with
`
`the patent owners about?
`
` MR. KIM: Objection, privilege.
`
` BY MR. RIFFE:
`
` Q. Sir, to my knowledge, they aren't -- they
`
`aren't attorneys, are they?
`
` MR. KIM: Objection, form.
`
` A. I don't know.
`
` Q. I'd like to know what you spoke to the
`
`patent owners about yesterday in preparing for your
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`deposition.
`
` MR. KIM: Objection, privilege.
`
` THE WITNESS: So I don't know whether I
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`Alfred Weaver, Ph.D. - February 10, 2017
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`should answer or not.
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` BY MR. RIFFE:
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` Q. He's not instructed you not to answer, so
`
`I'd like an answer.
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` MR. KIM: You don't have to answer. Do not
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`answer.
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` MR. RIFFE: Are you instructing him not to
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`answer, Counsel, or not? I mean, you're objecting to
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`privilege and you're not providing instruction, so I
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`want an answer.
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` MR. KIM: Yes, I instruct not to answer.
`
` BY MR. RIFFE:
`
` Q. Are you going to follow that instruction?
`
` A. Yes.
`
` MR. RIFFE: And Counsel, I'd like to know
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`how that's privileged, because to my knowledge, the
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`patent owners are not counsel. They're technologists
`
`or patent owners or they draft patents, but they're
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`not counsel, to my knowledge. Are they counsel?
`
` MR. KIM: Patent owner, they hired their
`
`lawyers, also they hired the expert, and they have
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`the client -- the attorney-client privilege extend to
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`Alfred Weaver, Ph.D. - February 10, 2017
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`relationship between the expert and the patent owner.
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` MR. RIFFE: Do you have case law that will
`
`support that, because to my knowledge, a
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`communication between an expert and a patent owner is
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`not privileged. I will grant you that a
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`communication between an expert and an attorney may
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`be privileged, may not be, but certainly not between
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`an expert and a patent owner, so I disagree with your
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`instruction and your objection.
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` MR. KIM: Patent owner hired the expert.
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` MR. RIFFE: As -- as do all patent owners,
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`but that doesn't mean that there are privileged
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`communications between an expert and a patent owner.
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`There's no -- there's no patent owner-expert
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`privileged communication that I'm aware of. There's
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`an attorney-client privilege communication between an
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`attorney and a client, but I've never heard of an
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`expert and a patent owner privilege doctrine. If you
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`can point me to something, then I'd be happy to look
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`at it, but as I'm sitting right now, there is no
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`privilege under that scenario.
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` MR. KIM: As I understand, the patent
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`Alfred Weaver, Ph.D. - February 10, 2017
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`owner, as I said, hired Mr. Weaver. He's working for
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`the patent owners.
`
` BY MR. RIFFE:
`
` Q. Patent owner could hire a consultant, and
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`that's not privileged, sir. He is a testifying
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`expert. There is no attorney-client privilege
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`between a patent owner and a hired expert. There
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`isn't. There may be a privilege between you and the
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`patent owner because you are a licensed counsel.
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`There certainly is no privilege between the expert
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`and patent owner, and to my knowledge, Dr. Weaver is
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`not an attorney, is he? According to his C.V., he's
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`not an attorney. I'm going to ask you that question.
`
`Dr. Weaver, are you -- are you a licensed attorney in
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`Virginia or any other state?
`
` A. No.
`
` Q. So are you going to answer the question or
`
`not?
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