`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - - - - - - )
`ZYNGA, INC., ) VOL. II
` Petitioner, ) Case Nos.:
`vs. ) IPR2013-00162
` ) IPR2013-00164
`PERSONALIZED MEDIA )
`COMMUNICATIONS, LLC, )
` Patent Owner. )
`- - - - - - - - - - - - - - - - )
`
` CONTINUED DEPOSITION OF SAMUEL H. RUSS, PHD
` Washington, DC
` Thursday, December 20, 2013
`
`Reported by:
`Kim M. Brantley, CSR
`Job No: 68999
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` December 20, 2013
` Time: 9:04 a.m.
`
`Continued Deposition of SAMUEL H. RUSS, PHD, held
`at the offices of Goodwin Procter, LLP, 901 New
`York Avenue, NW, Washington, DC, before Kim M.
`Brantley, Court Reporter and Notary Public of the
`District of Columbia.
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`APPEARANCES:
`
`Page 248
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` On behalf of the Petitioner Zynga Inc.:
` LOUIS TOUTON, ESQUIRE
` Jones Day
` 555 South Flower Street
` Los Angeles, California 90071
`
` On behalf of the Patent Owner:
` STEPHEN SCHREINER, ESQUIRE
` Goodwin Procter
` 901 New York Avenue, N.W.
` Washington, D.C. 20001
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` RUSS
` P R O C E E D I N G S
` S A M U E L H. R U S S, PhD.
`called as a witness by Counsel for the Petitioner,
`and, after having first been duly sworn by the
`Notary Public, was further examined and testified
`as follows:
` MR. TOUTON: I'm going to have a bunch
`of stuff premarked. Just put a B after everything
`and you'll be fine.
` (Seven One Seven patent was marked
`Exhibit 1001B, for identification.)
` (Three Five Nine patent was marked
`Exhibit 1008B, for identification.)
` (O Five Four patent was marked Exhibit
`1009B, for identification.)
` (Two O Six patent was marked Exhibit
`1010B, for identification.)
` (O Four One patent was marked Exhibit
`1011B, for identification.)
` (One Six Four patent was marked Exhibit
`2019B, for identification.)
` (Dictionary entry was marked Exhibit
`2026B, for identification.)
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` EXAMINATION BY COUNSEL FOR THE PETITIONER:
` BY MR. TOUTON:
` Q. Good morning, Dr. Russ.
` A. Good morning.
` MR. TOUTON: Let me note for the record
`that the following exhibits have been marked by
`the court reporter for today's deposition...
` There is 1001B, which is a copy of U.S.
`Patent Seven Seven Nine Seven Seven One Seven.
` There is Exhibit 1008B, which is a copy
`of U.S. Patent Four Five Six Seven Three Five
`Nine.
` There is Exhibit 1009B, which is a copy
`of U.S. Patent Four Eight Eight Two Five O Four
`Five.
` There's Exhibit 1010B, which is a copy
`of the Four Two O Four Two O Six patent.
` There is Exhibit 1011B, which is a copy
`of Patent Four Six Seven Four O Four One.
` There is Exhibit 2019B, which is a copy
`of Dr. Russ' declaration filed in IPR Two O One
`Three Zero Zero One Six Four.
` And there is Deposition Exhibit 2026B,
`which is a copy of an exhibit submitted in that
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`same IPR proceeding that appears to be part of a
`dictionary.
`BY MR. TOUTON:
` Q. Dr. Russ, referring to your
`declaration, which is Exhibit 2019B, and
`specifically beginning on Page 24, you have a
`discussion in Paragraph 52 regarding the
`construction of the term "receiver station".
` A. Yes.
` Q. Is the term "receiver station"
`specifically recited in the Seven One Seven
`specification?
` A. Well, it's recited in Claim One of the
`Seven One Seven patent.
` Q. Is it anywhere in the specification
`portion of the patent, though?
` A. I don't know.
` Q. You're not relying on any specific use
`of the term, or specific definition of the term
`"receiver station" in the specification, are you?
` A. I'm relying on the presence of
`subscriber stations or terminals in the Seven One
`Seven patent to offer insight into how the term is
`to be used.
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` Q. Now, you mentioned the phrase
`"subscriber station". That's different than
`receiver station, isn't it?
` A. Potentially.
` Q. You ascribe different meanings to those
`two terms?
` A. I haven't really given it much thought.
`The subject of the Seven One Seven patent
`specification deals with stations in a variety of
`locations, some of which receive data, some of
`which receive and retransmit data, some of which
`just receive data in somebody's home, for example.
` Q. Would you agree that, to one of skill
`in the art understanding terms as of 1987, that
`there could be receiver stations that were not
`subscriber stations?
` A. I don't know. I haven't really thought
`about that much.
` I guess what I'm really trying to say
`is, a person of ordinary skill in the art, picking
`up the Seven One Seven patent in 1987, would look
`at the term "receiver station" in the claims and
`would say, to the extent they had the question,
`what is a receiver station, they would be able to
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`flip through the specification of the Seven One
`Seven patent and see a lot of terminals in a
`variety of places and would conclude that those
`terminals were the basis for the term "receiver
`station", and would make note of the fact that,
`among other things, the receiver station is a
`station that receives.
` Q. Would one of still in the art in 1987
`have understood the term "receiver station" any
`differently than the term "subscriber station"?
` A. Not necessary.
` Q. Do you have an opinion as to whether
`one of skill in the art would have recognized that
`there were things qualifying as receiver stations
`that would not qualify as subscriber stations?
` A. I'm sorry, would you repeat the
`question? I apologize.
` Q. Do you have an opinion as to whether
`one of skill in the art would have recognized that
`there were things qualifying as receiver stations
`that would not qualify as subscriber stations?
` A. I'm not aware of anything. I would
`think a subscriber station is a subset of a
`receiver station. It's a receiver station used by
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`a subscriber.
` Q. Is it your view that one of skill in
`the art in 1987 would not have deemed something to
`be a receiver station if it received transmissions
`from entities other than other stations?
` A. I think a person of ordinary skill in
`the art in 1987 would understand that a receiver
`station first and foremost is a station that
`receives, and so that naturally raises the
`question of receives from what.
` And my opinion that the semantics of
`the term means "receive from somewhere outside
`itself," "receiving from somewhere else".
` Q. So, when you say in Paragraph 52 on
`Page 24 of your declaration that, in your view, "A
`receiver station is a station that can receive
`transmissions from other stations," you don't mean
`to exclude something that receives transmissions
`from external sources that are not stations?
` MR. SCHREINER: Object, form.
` THE WITNESS: I don't know. I think
` the plain and ordinary meaning that I put
` there is the most concise and accurate
` phrasing of my opinion, that it's a station
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` that can receive transmissions from other
` stations.
`BY MR. TOUTON:
` Q. Would you agree that one of skill in
`the art in '87 would have thought that receiver
`stations included, for example, Earth Station Four
`receiving deep space originated signals?
` MR. SCHREINER: Objection, form.
` THE WITNESS: Well, you know, that's
` not something I've necessarily given a lot of
` thought to, because of course I was trying to
` look at the terms as are found in the claims,
` the specification, and in this case I think
` it's the Humble patent.
` But the idea, is if there is a receiver
` station, that there must be some external
` station, if you will, that's transmitting to
` it. Otherwise there will be no purpose for
` building a receiver.
`BY MR. TOUTON:
` Q. Well, is it your view that all
`transmissions originate from stations?
` A. All transmissions originate from
`transmitters.
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` Q. Do they originate from stations?
` A. I guess to be consistent with the
`terminology, you could say that. You could
`identify the transmitter as a transmitting
`station.
` Q. So you would view a nebula in deep
`space as a station?
` A. Well, that would depend on whether or
`not I would -- to make that I would have to define
`of course the deep space antenna as a receiving
`station, and I just don't know that I would ever
`use that terminology. It just seems very unusual
`to me.
` The idea of a receiver station is that
`this is something that's purpose built for
`receiving a specific type of signal from something
`else. And again in the context of this patent and
`of these claims, we're talking about stations that
`are engineered for specific communicative
`purposes.
` Q. So, would you or would you not consider
`a facility located on Earth with a large array
`antenna for listening to the cosmos, would you
`consider such a thing to be a receiver station?
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` A. I don't think I would use that
`terminology.
` I might describe it as a receiving
`apparatus or as an instrument for sensing the
`presence of signals that may or may not be there.
` But, again, receiver station connotes
`something that was purpose built to receive a
`specific transmission.
` And again in the context of the claim
`and in the context of the patents, I think that's
`the plain and ordinary meaning.
` Q. To one of skill in the art as of 1987,
`would they have understood that there were
`situations in which transmitter and receiver
`stations were collocated?
` A. Well, if you ignore the claims in the
`patents, then, yes, that's a theoretical
`possibility.
` But from the standpoint of the claim,
`you know, we're talking about something that's
`been engineered to receive something from
`something that transmits.
` Q. In your view, would one of skill in the
`art in 1987 have thought of a workbench location
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`with an oscilloscope, let's say, that receives by
`coaxial cable a signal from a signal generator
`located down the bench aways, would they have
`referred to the place with the oscilloscope as a
`receiver station?
` A. I don't think so. I think again they
`would again refer to that as an instrument for
`sensing a signal that may or may not be there.
` Q. So you would exclude that from your
`definition of a receiver station?
` A. I would exclude that from the
`definition of the claim term "receiver station" as
`found in the Seven One Seven patent.
` Q. Referring to Exhibit 1001A, which is
`the Seven One Seven patent, and specifically Claim
`One...
` A. Opposing counsel may need to remove the
`last page so I may pick it up easily.
` Q. Alright. Do you see that Claim One
`uses the term "receiver station"?
` A. Yes.
` Q. Is there anything in Claim One that, in
`your opinion, creates a requirement that the
`receiver station be some particular distance from
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`the source of the video signals?
` A. What I note is the language, the
`literal language of the claim is that "receiving
`information content in at least one information
`transmission at said receiver station".
` So the literal language would mean,
`receiving something at said receiver station.
`That's the literal claim language.
` Q. Alright.
` A. And, you know, I always like to, when
`I'm starting with a claim, to start with, what's
`the plain English meaning, and then what would a
`person of ordinary skill in the art understand
`and, you know, both of which I think would shed
`light on this.
` And I think about the phrase, they
`think received a package at the post office. No
`one would conclude from that that a package was
`moved around inside the post office.
` They would instantly conclude that a
`package was brought into the post office from the
`outside.
` And so, the important thing is not just
`that there is this receiver station, whatever that
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`is, but that the information transmission is
`received at the receiver station. And that
`implies to me that it comes in from somewhere
`else.
` The alternative would be, if it doesn't
`come in from outside the receiver station, then it
`is generated by the receiver station, which in my
`opinion, generated by the receiver station is a
`fundamentally different thing than received at the
`receiver station.
` Q. In your notion of the definition of
`"receiver station," is there any requirement for a
`particular degree of remoteness between the source
`of the transmission and the receiver station?
` A. I think the important thing is that
`there has to be a communication interfaced to the
`outside world.
` Q. But for the standpoint of your
`definition, it would be acceptable if the source
`of the transmission were just an inch outside the
`receiver station?
` A. As long as the interface exits the
`receiver station, as I sit here today I'm not able
`to think of a requirement for distance.
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` Q. Is it your view that a system can
`consist of a receiver station as well as other
`items?
` MR. SCHREINER: Object, form.
` THE WITNESS: I don't understand your
` question.
`BY MR. TOUTON:
` Q. Let me give you an example. Suppose
`there is a facility run by a cable company that
`has a broadcast studio where programming is
`originated, and then it has a head-in
` A. Okay.
` Q. And they're located on the same plot of
`land, in the same building, let's say.
` Could the head-in be properly viewed by
`one of skill in the art as a receiver station?
` MR. SCHREINER: Object, scope.
` THE WITNESS: Well, I haven't really
` thought about that.
` I think you'd have a hard same saying
` that because a head-in is a vast array of
` components.
` Again the terminology "receiver
` station," I think a person of ordinary skill
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` in the art would understand a station to be,
` you know, this thing.
` Now that's why it's important, if you
` are going to attempt to determine the extent
` to which something reads against the claim,
` you've got to identify what it is that you
` call the receiver station, okay?
` But, you know, I think something as big
` as a head-in, you might have a hard time
` calling that a receiver station.
` I think you'd probably call it like an
` IRD, the input to the head-in in a receiver
` station.
` But, you know, the thing is that this
` thing that you call a station has to be this
` plausible combination and not some
` arbitrarily drawn line.
` So, again, the short answer to your
` question is I haven't really thought about
` it, but there has to be this plausible reason
` for identifying an entity as a station, okay.
`BY MR. TOUTON:
` Q. Is that requirement that you just
`stated, that there be some plausibility to the
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`definition or boundary in the station, is that
`reflected in any of the claim language that you're
`relying on?
` A. It's reflected in the use of the term
`"station".
` Q. Are you familiar with the facilities in
`the timeframe of 1987 that were multiple stations,
`such as a radio station and a TV station, that
`were collocated?
` A. I don't know. I haven't really thought
`about that.
` Q. You didn't learn about that in your
`work at Scientific Atlanta?
` A. I didn't learn about where radio and TV
`stations were located. No, I did not.
` Q. Did you visit radio or TV stations when
`you were at Scientific Atlanta?
` A. Not when I was at Scientific Atlanta.
` Q. Did you visit them some other time?
` A. I had visited television stations
`before and after my work at Scientific Atlanta,
`but largely in connection with school field trips,
`frankly.
` Q. If the term "receiver station" were
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`broadly construed, could it include an apparatus
`for receiving signals from a bus?
` MR. SCHREINER: Objection, form.
` THE WITNESS: I don't understand your
` question.
`BY MR. TOUTON:
` Q. Under a broad construction of receiver
`station that might have been used by someone of
`skill in the art in 1987, could an apparatus for
`receiving signals from a bus constitute a receiver
`station?
` A. I haven't really thought about that
`much, but offhand, one thing I note is that it
`very much depends on what you mean by "bus".
` You know, there's a bus inside of many
`computers, for example, like a PCX express bus,
`and you know one entity on a PCX express bus and
`another entity on a PCX express bus, you would say
`that's really two parts of the same entity.
` That's the whole purpose of a PCX
`express bus is to be inside a single computer.
` There are things that are called
`"buses," like RS 485. They are designed and
`spread across and connect say multiple things
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`together.
` Q. Um-hmm.
` A. In that instance, you know, because
`it's designed in affect to be a local area
`network, that's a little bit different.
` So, it depends again on whether or not
`the two elements in the bus taken together could
`plausibly be called a "station".
` Q. Or alternatively could plausibly be
`called separate items, right?
` A. Right. I suppose you could say that.
` Q. Yes. So, for example, would a device
`external to a computer cabinet that was connected
`with an SC SI bus, could that device be a receiver
`station?
` A. I would call a SC SI device part of the
`computer. It's well known in the art to be what
`we would call a storage area network, and so I
`would say that that device, I mean, that device
`has no function when it's not attached to the SC
`SI port.
` So I would say that it's part of the
`computer.
` Q. Would you say that a node in a local
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`area network could be a receiver station?
` A. It depends on whether or not that node
`was capable of some standalone function.
` Q. Some -- I'm sorry?
` A. Whether or not that node is capable of
`some standalone function.
` Q. What do you mean by "standalone
`function," or particularly the standalone part of
`it?
` A. Capable of functioning alone, standing
`alone.
` Q. Without receiving the signals?
` A. Well, I mean, if it's a receiver
`station it has to receive signals, but I mean, you
`know, an example of what I am talking about, a
`keyboard, if it's not plugged into a computer, is
`an expensive boat anchor. So I would not describe
`a keyboard as a -- so this mythical node on the
`keyboard, it is putative node on the network. It
`depends on what it is.
` Q. Let me make it a little bit more
`specific.
` Suppose you had an Ethernet network,
`and there was a device on it that was a printer,
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`intended to receive things directed at it over the
`network and to send them to a printer located
`right there.
` Would you consider the print server to
`be a receiver station?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: I haven't really thought
` about that. I would have to see an example
` of this print server and how it functioned to
` see whether or not it was a receiver station
` under the terms of the claim.
`BY MR. TOUTON:
` Q. What would you -- and I'm not talking
`about other parts of the claim. I'm just talking
`about the term "receiver station" -- what would
`you look for as a characteristic to determine
`whether that print server constituted a receiver
`station?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: Well, I would have to,
` you know, see maybe some written
` documentation about this print server, see
` whether or not it was something that could be
` plausibly called a "station."
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` And you know, I'd have to consider
` whether or not a person of ordinary skill in
` the art -- I'm talking to fast, I apologize,
` a person of ordinary skill in the art as of
` 1987 would consider it to be a receiver
` station.
` It would make me time to sit down and
` I'd have to see a specific example in order
` to arrive at a conclusion.
`BY MR. TOUTON:
` Q. Are there any particular
`characteristics of this print server that right
`now you can think of would be important to that
`determination?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: Well, I would say the
` claim terms found in the Seven One Seven
` patent.
`BY MR. TOUTON:
` Q. Does the Seven One Seven patent
`specification describe many things that you
`believe constitute receiver stations?
` A. My offhand recollection is that it
`does.
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` Q. Do some of these receiver stations
`described if the Seven One Seven patent
`specification receive both transmissions from
`external sources and transmissions received from
`internal sources?
` A. Well, I mean, I haven't really thought
`about that, but, for example, the terminal in the
`farmer's home in the Farm Planes of Europe is
`receiving control signals and data from the
`broadcast network.
` Q. Is it also receiving signals from parts
`of that receiver station, such as keyboard
`signals?
` A. My offhand recollection is there is a
`keyboard that's part of some of the embodiments of
`stations in the Harvey patents, but I haven't
`really considered, you know -- again, the purpose
`of that terminal is to receive information from
`the broadcast network, and that is that reception
`that makes it a receiver station.
` Q. Are you aware of a definition of the
`term "ultimate receiver station" that is presented
`in the Seven One Seven patent specification?
` A. Yes.
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` Q. Alright, if you could refer to Column
`21, Lines 46 to 52. Could you read aloud the
`sentence that appears there.
` A. "Herein after," and I assume you mean
`the sentence beginning with "herein after"?
` Q. Yes.
` A. "Herein after stations that originate
`broadcast transmissions are called 'original
`transmission stations'. Stations that receive and
`retransmit broadcast transmissions are called
`'intermediate transmit stations', and stations
`where subscribers view programming are called
`'ultimate receiver stations'."
` Q. Reading that through the eyes of one of
`ordinary skill in the art in 1987, do you
`understand it to be defining ultimate receiver
`stations as stations where subscribers view
`programming?
` A. Yes.
` Q. In your view, is the term "receiver
`station" broader than the term "ultimate receiver
`station"?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: I don't know. I haven't
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` really thought about that.
` I mean, the station of Claim One of the
` Seven One Seven patent is a receiver station
` and is in possession of subscriber-specific
` data.
` So, the elements of the Harvey patent
` specifications that most closely match the
` receiver station of Claim One is an ultimate
` receiver station.
` Whether or not other stations line up I
` haven't really considered.
`BY MR. TOUTON:
` Q. Do you believe that the
`term receiver station, as used in Claim One of the
`Seven One Seven patent is limited to those things
`meeting the patent's definition of the term
`"ultimate receiver stations"?
` MR. SCHREINER: Objection, form.
` THE WITNESS: I believe that the
` ultimate receiver station -- by the way, I
` note therefore that the Seven One Seven
` patent specification contains the term
` "receiver station."
` I think the way that I would express it
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` is, the ultimate receiver station of the
` Seven One Seven patent specification is an
` embodiment of the receiver station of Claim
` One.
`BY MR. TOUTON:
` Q. Do you believe there are other
`embodiments of receiver stations, as that term is
`used in the Seven One Seven patent, that do not
`constitute ultimate receiver stations?
` A. I don't know. I have not really
`thought about that.
` Q. Refer if you would to Claim 10 of the
`Seven One Seven patent.
` A. Okay.
` Q. Do you see in the first element of that
`there is reference made to a "subscriber station"?
` A. Okay.
` Q. In your opinion is the term "receiver
`station" broader than the term "subscriber
`station," as those terms are used in the Seven One
`Seven patent?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: I don't know. I haven't
` really considered Claim 10 and I haven't
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` really thought about what the term there
` means.
`BY MR. TOUTON:
` Q. As far as you know was there anything
`that prevented the drafter of the Seven One Seven
`patent from including a definition of the phrase
`"receiver station" within the specification?
` A. I'm sorry, can you repeat the question
`again. I apologize.
` Q. As far as you know, was there anything
`that prevented the drafter of the Seven One Seven
`patent from including a definition of the phrase
`"receiver station" within the specification?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: Well, I guess I don't
` understand the question, because the phrase
` "receiver station" is in the specification.
`BY MR. TOUTON:
` Q. Is there a definition of it?
` A. I think we just looked at a definition
`at least of an "ultimate receiver station".
` Q. Do you think that an ultimate receiver
`station is defined in precisely the same way as
`the term "receiver station"?
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` A. I think an ultimate receiver station is
`an embodiment of a receiver station.
` Q. So, you agree then that ultimate
`receiver station is a narrower concept than the
`term "receiver station"?
` A. I did not say that. I said --
` Q. You do not agree with that?
` A. I said an ultimate receiver station is
`an example of a receiver station.
` Q. Are there other examples of receiver
`stations?
` A. I don't recall offhand.
` Q. Since there is a possibility that there
`are other instances of receiver stations than
`those that would qualify as ultimate receiver
`stations, let me ask this...
` Was there anything that you are aware
`of that prevented the drafter of the Seven One
`Seven patent from including in the specification a
`definition of the term "receiver station"?
` MR. SCHREINER: Objection, scope.
` THE WITNESS: I'm sorry, but I thought
` I already answered that, that would be the
` term "ultimate receiver station" is defined
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` in the patent and it is an example of a
` receiver station.
` In that sense, the term "receiver
` station" is not only a nonlimiting example of
` a receiver station is provided, it is
` defined.
`BY MR. TOUTON:
` Q. The example is defined?
` A. An ultimate receiver station is
`defined.
` Q. But you don't reject the possibility
`that there are receiver stations that do not
`constitute ultimate receiver stations, do you?
` A. I really haven't thought about that.
` Q. Would you agree that, to one of skill
`in the art, it would have been clearer if a
`definition specifically of the term "receiver
`station" had been included in the specification?
` MR. SCHREINER: Objection, form.
` THE WITNESS: I really haven't given
` that much thought. I don't know.
`BY MR. TOUTON:
` Q. Would you agree that Claim One would be
`clearer than it is as currently stated if after
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