IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
`
`1
`
`HOYT A. FLEMING,
`
`Case No. 1:09-cv—OOlO5~BLW
`
`JURY TRIAL DAY 7
`
`1
`
`Plaintiff,
`
`vs.
`
`ESCORT,
`
`INC.,
`
`and
`
`BELTRONICS USA,
`
`INC.,
`
`Defendants.
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`before 3. Lynn Winmill, Chief District Judge
`
`June 22, 2012
`
`Pages 1 to 295
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`
`
`Hohenleitner 2
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`20
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`M25
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`
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`Tamara I .
`
`Zdaho Certified shorthand Reporter No. 619
`Registered Professional Reporter
`Certified Realtime Reporter
`Federal Certified Realtime Reporter
`
`United States Courts, District of Idaho
`550 West Fort Street, Boise,
`Idaho
`83724
`(208) 334~l5OO
`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 1
`|PR2013-00240
`
`K40 Exhibit 1013, pg. 1
`IPR2013-00240
`
`

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`FOR DEFENDANTS
`
`Steven 3. Andersen
`
`HOLLAND & HART, LLP
`101 S. Capitol Blvd., Suite 1400
`Boise,
`Idaho
`83701
`Tel:
`(208) 342-5000
`Fax:
`(208) 343-8869
`Email: Sandersen@hollandhart.com
`
`Gregory F. Ahrens
`Brett A. Schatz
`
`WOOD, HERON & EVANS, LLP
`44; Vine Street, 2700 Carew Tower
`Cincinnati, OH 45202-2917
`Te‘:
`(5‘3) 241-2324
`?ax:
`(513) 421-7269
`Email: Gahrens@whepatent.com
`Bschatz@whepatent.com
`
`
`
`
`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 2
`|PR2013-00240
`
`BEEEEBEEEEE
`
`FOR PLAINTIFF
`
`1
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`2
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`4
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`5
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`Michael S. Dowler
`
`L‘J
`PARK, VAUGHAN, FLEMING & DOWL R, LLP
`5847 San Felipe, Suite 1700
`Houston, TX 77057
`Tel:
`(713) 821-1540
`
`Fax:
`
`Email: Mike@parklega1.com
`
`Steven F. Schossberger
`HAWLEY ”ROXELL ENNIS & HAWLEY
`PO Box 1617
`
`(713) 821-1401
`
`ID 83701
`Boise,
`Tel:
`(208) 344-6000
`Email: Sfs@hteh.com
`
`K40 Exhibit 1013, pg. 2
`IPR2013-00240
`
`

`
`
`
`5 ORR, Steven K.
`Direct Examination by Mr. Ahrens .
`Cross—Examination by Mr. Dowler .
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`ADMITTED
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`233
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`59
`67
`119
`27
`69
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`51
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`108
`1;;
`1;
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`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 3
`|PR2013-00240
`
`K40 Exhibit 1013, pg. 3
`IPR2013-00240
`
`

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`
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`
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`1
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`THE COURT: Sustained.
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`2
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`3
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`6
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`BY MR. AHRENS:
`
`Q. Well, could you describe what prompted
`your work that you described yesterday.
`A. The products that we were creating
`after digital signal processing concepts had been
`incorporated into them, as I explained yesterday,
`were detecting signals with greater sensitivity;
`and, as a result, they were just going off all the
`time.
`
`So the urgency of trying to find a way
`to make that decision of reporting real radar was
`elevated substantially at that point.
`I would say after the new Escort was
`introduced, which was the first DSP-based detector
`
`in 1989, from that date forward, we were really
`focused on this question of improving the accuracy
`of these products with some kind of method.
`Q. Briefly, I'm going to display for you a
`page from Exhibit 228l that was admitted
`yesterday.
`
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`NOI
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`P R O C E E D I N G S
`
`June 22, 2012
`
`(Jury present.)
`THE CLERK: The court will now hear Civil
`
`Case 09-105-S-BLW, Hoyt Fleming versus Escort,
`Inc., et al., for Day 7 ofjury trial.
`
`THE COURT: Good morning, ladies and
`gentlemen. I hope you had a pleasant evening.
`Mr. Orr has retaken the witness stand.
`
`I'll remind him that he is still under oath.
`
`With that, Mr. Ahrens, you may resume
`your direct examination of the witness.
`
`MR. AHRENS: Thank you, Your Honor. Good
`morning.
`
`Good morning, ladies and gentlemen.
`DIRECT EXAMINATION
`
`BY MR. AHRENS:
`
`Q. Mr. Orr, yesterday we were talking
`about some of your background and some of the work
`
`that you did in the early '90s. I'm wondering if
`you could tell us if you ever found yourself
`
`sitting in front of a grocery store getting false
`alerts and if that's what prompted your work that
`you talked about yesterday.
`
`MR. DOWLER: Objection. Leading.
`
`6
`
`MR. AHRENS: Your Honor, may I approach the
`court to hand to Mr. Orr Demonstrative Exhibit
`2334?
`
`THE COURT: Mr. Metcalf, if you Would.
`THE WITNESS: Thank you.
`MR. AHRENS: Any objection to that?
`MR. DOWLER: Yeah. We have a foundation
`
`objection to this, Your Honor.
`THE COURT: To the use of the demonstrative?
`
`MR. DOWLER: Yes.
`
`THE COURT: Well, that's -- normally you
`would have to make it -- have the witness testify
`as to why it's going to be helpful to him in
`explaining his testimony.
`MR. AHRENS: Okay.
`THE COURT: The foundation is -- since it's
`
`not coming in as a substantive exhibit, the
`foundation does not require there to actually be
`the device or item that was used but only one that
`allows the witness to demonstrate what he did in
`
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`Could you point out on the screen for
`us again where it references the NAV card that you
`purchased?
`A. Yes. (Indicating.)
`
`
`7
`
`
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`that you're holding?
`A. This is an identical GPS NAV card to
`
`the one that I just circled.
`
`MR. AHRENS: May we proceed?
`THE COURT: Yes, proceed.
`BY MR. AHRENS:
`
`Q. So you're holding in your hand a NAV
`card. What's the brand name?
`
`A. It's made by a company called Rockwell,
`which appears on the label along with the name
`"NAV card."
`
`Q. So Rockwell NAV card. Is the one that
`
`you're holding, the demonstrative exhibit, an
`
`example of the NAV card that was the type you used
`in 1996?
`
`A. It is identical.
`
`Q. So can you explain just briefly —- I
`know you did that yesterday —- how it was utilized
`in your system. But now that you have it in your
`hands, maybe it would be slightly easier for you
`to do that, if you wouldn't mind.
`
`MR. DOWLER: Objection. Leading.
`THE COURT: Overruled. It's just
`foundational, background.
`THE WITNESS: When I described the idea of
`
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`using it. So it's a fairly minimal showing.
`MR. AHRENS: Thank you, Your Honor.
`THE COURT: Proceed.
`BY MR. AHRENS:
`
`
`
`Q. Mr. Orr, can you identify what 2334 is
`
`
`
`K40 Exhibit 1013, pg. 4
`|PR2013-00240
`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 4
`IPR2013-00240
`
`

`
`
`
`92
`
`
`A. Yes.
`
`93
`
`
`
`see a microwave antenna approximately where I have
`drawn this area. Signals enter all across the
`top -- whoops. I have done something to
`the —— okay.
`mid the other end of the antenna down
`
`here feeds an IF section, which involves taking
`the signals from the —— from the antenna and
`converting them to lower frequencies that can be
`analyzed by the computer chips that are inside of
`these products.
`Q. And then are there other components
`relating to global positioning?
`A. Yes. Erase this.
`
`Right in this area (indicating), there
`is a GPS chip. It's not the NAV card at all.
`It's a single chip that does what this entire
`Exhibit 2334 collection of chips did for $1,000
`but in one chip.
`Q. So, just as a compare and contrast, you
`had pointed out on -s to the jury that system that
`was on that cart. Do you remember that?
`A. Yes.
`
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`Q. Okay. And so is the 9500ix product,
`does it have componentry that performs in some way
`relative to what you had described earlier with
`regard to the laptop?
`A. The 9500ix contains ingredients of all
`of those in an abbreviated, efficient,
`cost~effective form.
`
`Q. And so instead of a NAV card, it has
`what you described as the chip?
`A. A single-chip GPS receiver.
`Q. And then is the —— does the 9500ix have
`source code? Does it have source code somewhere
`in it?
`
`_A. There are numerous computer chips in
`there, each programmed via source code.
`Q. And who authored the source code that
`is contained in the 9500ix?
`
`I authored the GPS-processing portion
`A.
`of the source code. Other engineers authored
`other portions.
`For example, Jeff Stevens authored
`portions of the user interface code that works
`with all of those buttons.
`
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`change the source code, adding more and more lines
`to it to address those issues.
`
`Q. So after you proved the original
`concept in April of 1996, did you continue your
`efforts to develop a product such as the 9500i?
`MR. DOWLER: Objection. Mischaracterizes
`the record, leading, lack of foundation.
`MR. AHRENS: I'm just trying to set the
`stage for where we were.
`THE COURT: Overruled.
`
`AO<.DOO\lO50I-#0~>l\3--\
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`Q. And that included a series of items,
`
` N-F
`and I think we actually made a list of those right
`NU’!
`
`here. Do you remember that list?
`
`Another engineer named Bill Hendershot
`94
`95
`
`authored the code that runs the microwave
`
`1 authored the code that generates the
`receiver.
`actual audio that you hear when the product is
`reporting signals.
`Q. And I believe you said you authored the
`code that relates to the GPS chipset?
`A. Yes.
`
`Q. And roughly how long is thnt source
`code from a line standpoint?
`A. This product's GPS source file is
`23,000 lines of code in a language called "C."
`Q. And how does that compare to the source
`code that was in the original laptop system that
`you built in April of 1996?
`A. The original laptop contained 1,000
`lines of code in Quick Basic.
`Q. Can you explain what the reason is for
`the dramatic increase in source code length?
`A. The GPS lockout concept, as simple as
`it may sound, is fraught with endless problems and
`difficulties in the real world that have to all be
`dealt with.
`
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`
`United States Courts, District of Idaho
`
`MR. AHRENS: Thank you, Your Honor.
`THE WITNESS: Yes.
`
`BY MR. AHRENS:
`
`Q. And we have been talking about
`Cincinnati Microwave, and I see that on the
`exhibit product, the Exhibit 2296, it says
`"Escort."
`
`What is Escort? I mean, what is the
`
`company Escort?
`A. Escort is the name of the company that
`acquired the assets of Cincinnati Microwave after
`it went bankrupt.
`Q. So at what point in time did Cincinnati
`Microwave go into bankruptcy, if you know? Just
`generally.
`
`
`
`K40 Exhibit 1013, pg. 5
`|PR2013-00240
`
`K40 Exhibit 1013, pg. 5
`IPR2013-00240
`
`

`
`248
`
`249
`
`Q. And in this patent application that you
`filed four to five months after saying you made
`Mr. Fleming's invention, it never mentions locking
`out a false alert based on the location; correct?
`A. That's correct.
`
`Q. Okay. Now, let's keep going on this
`time line that we're on.
`
`MR. DOWLER: And let's pull up Exhibit 1001,
`please.
`BY MR. DOWLER:
`
`Q. Andjust so you remember, Mr. Orr, that
`application was filed -- the last one we saw was
`filed in September 23rd of 1996. Okay?
`Now this is Mr. Fleming's patent, his
`‘O38 patent. Have you seen this document?
`A. Yes.
`
`Q. Did you know that he filed his
`application on April 14 of 1999?
`A. No, I did not.
`Q. You didn't know that?
`So, a couple years after you filed the
`last patent application that we saw; correct?
`A. Yes.
`
`Q. Okay. Now, do you understand that
`Mr. Fleming's patent application disclosed
`
`250
`
`Q. This is your patent application filed
`two months after Mr. Fleming's?
`A. Yes.
`
`Q. Okay. Now, as to the subject matter in
`this patent application, had you kept it secret
`from the public?
`A. Yes.
`
`Q. Okay. Was this your first patent
`application disclosing a radar detector combined
`with a GPS?
`
`Q
`A. Yes.
`Q. All right. So even though you had the
`idea in 1988, you filed five patent applications
`thereafter without ever disclosing that idea,
`didn't you?
`A. Makes perfect sense.
`Q. And even though you had the idea in
`1988, you didn't file a patent application until
`11 years later, two months after Mr. Fleming's;
`isn't that right?
`A. The filing date isn't relevant here.
`Q. That wasn't my question. Do you want
`me to ask it again?
`A. The --
`
`Q. Okay.
`
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`combining -- or putting a GPS inside a radar
`detector that did a lockout distance and a lockout
`
`frequency and whatnot?
`MR. AHRENS: Objection, foundation.
`THE COURT: Well -- the question is, are you
`aware? And if you're not aware of the details,
`you can so indicate.
`THE WITNESS: I'm not aware of these
`details.
`
`MR. DOWLER: Okay. That's okay.
`So let's go -- continue on the time
`line. Mr. Fleming's application was filed April
`14 of '99, and then you filed an application two
`months later, on June 14 of '99. Remember that
`one?
`
`That's Exhibit 1078. We will pull it
`
`up --
`
`for it.
`
`. Yes.
`
`. —- so you don't have to take my word
`
`Do you remember this one?
`This is -- again, it's Exhibit --
`. This is the --
`. -- 1078?
`Yes.
`
`251
`
`A. As you compared the dates, your
`statement was correct on filing events.
`Q. Okay. And even though you say you
`built a system in 1996, you didn't file a patent
`application on it until three years later, two
`months after Mr. Fleming filed his --
`MR. AHRENS: Objection, relevance.
`BY MR. DOWLER:
`
`Q. -- is that right, Mr. Orr?
`THE COURT: Overruled.
`
`THE WITNESS: Yes.
`
`BY MR. DOWLER:
`
`Q. "Yes"? You have to answer. You can't
`shake your head.
`A. Oh. I said yes.
`Q. Okay. Now, do you remember when we
`took your deposition and you were asked if you
`know why Escort did not file a patent application
`on any aspect of the GPS concept prior to filing
`your provisional application in 1999?
`Do you remember what you said?
`A. That one requires a best mode.
`Q. You said, "I don't know."
`MR. AHRENS: Your Honor, I'm not sure that
`
`that's a proper way to use his deposition for
`
`K40 Exhibit 1013, pg. 6
`|PR2013-00240
`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 6
`IPR2013-00240
`
`

`
`252
`
`253
`
`impeachment.
`BY MR. DOWLER:
`
`Q. I'll show it to you.
`THE COURT: Sustained. Sustained.
`
`Let's back up and --
`MR. DOWLER: Okay.
`
`THE COURT: -- give the witness an
`opportunity to answer the same question precisely
`as phrased, and then point out any contrary
`response.
`BY MR. DOWLER:
`
`Q. Well, let me -- I'll just -- I'll start
`
`over.
`
`Do you remember, when your deposition
`was taken, how you answered the question: "Do you
`know why Escort did not file a patent application
`on any aspect of the GPS concept prior to the
`filing of your provisional application in 1999?"
`A.
`I don't remember the question during
`the deposition, but I ~~ I could answer that
`question now.
`Q. Okay. Well, let's take a look and see
`exactly what you said. This was from your --
`MR. AHRENS: Could we have the monitor offi
`
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`it's up. But my practice generally is when there
`is deposition testimony being read to the witness,
`I allow the jury to see it. But it needs to be
`limited just to that question and answer if you
`want it shown to the jury.
`MR. DOWLER: Okay.
`Is that good enough, Your Honor, to
`narrow it down?
`
`THE COURT: It really should be limited just
`
`to --
`
`MR. DOWLER: Yeah, we can do it better.
`
`THE COURT: All right. I'll allow it.
`MR. DOWLER: That's okay there?
`THE COURT: Yes.
`
`MR. DOWLER: Okay.
`BY MR. DOWLER:
`
`Q. Do you see the question, Mr. Orr?
`A. You didn't highlight the whole
`question.
`Q. Well, I'll read it to you. It's --
`THE COURT: Take off the blue highlights.
`That was just, I think, to identify the text.
`BY l\/H1 DOWLER:
`
`N01
`
`
`Q. It says:
`"Question: Do you know why Escort did
`
`255
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`THE COURT: I'm going to turn it off until
`254
`
`not file a patent application on any aspect of the
`GPS concept prior to the filing of your
`provisional application in 1999?"
`How did you answer?
`I said, "I don't know," which I --
`
`. No, you said, you don't know why.
`I don't know why --
`Okay. That's --
`-- Escort does what they do.
`That's --
`
`0?’*.C?’rS3?>rO?>
`
`That wasn't my --
`. Mr. Orr, you're going to have a
`chance --
`
`THE COURT: Mr. Dowler, that's fine. There
`
`is a question and an answer. Let's move on.
`MR. DOWLER: All right.
`BY MR. DOWLER:
`
`Q. Now, let's go to Exhibit 1078.
`THE COURT: The jury monitor is off until we
`get the document up.
`This is what exhibit number?
`
`MR. DOWLER: 1078.
`BY MR. DOWLER:
`
`Q. Now, we have seen this document before,
`right, Mr. Orr?
`
`A. Yes.
`
`Q. Okay. And just so the record is clear
`and so the jury remembers, this is the patent
`application that you filed on June 14, 1999;
`correct?
`
`A. Yes.
`
`Q. Two months after Mr. Fleming filed his
`patent application; correct?
`A. Yes.
`
`Q. Okay. Now let's go to --
`THE COURT: Counsel, I‘mjust concerned. My
`notes don't reflect that we have brought up
`1
`Exhibit 1078; although, it was admitted by
`stipulation.
`Is that the right exhibit number? I
`mean, do we have that --
`
`MR. DOWLER: I'm pretty sure. I thought we
`used this one a bunch. But I could be mistaken.
`
`THE COURT: Maybe my notes just didn't keep
`up. Let's go ahead and proceed. There is no
`problem since it was admitted by stipulation. Go
`ahead.
`
`MR. DOWLER: Okay.
`BY MR. DOWLER:
`
`Q. So, again, this is your patent
`
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`25
`
`United States Courts, District of Idaho
`
`K40 Exhibit 1013, pg. 7
`|PR2013-00240
`
`K40 Exhibit 1013, pg. 7
`IPR2013-00240