1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`Page 1
` IN THE UNITED STATES PATENT & TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`----------------------------------------------------
`GAME SHOW NETWORK, LLC and )
`WORLDWINNER.COM, INC., )
` Petitioners, ) Case No.
`vs. ) IPR2013-00289
`JOHN H. STEPHENSON, )
` Patent Owner. )
`----------------------------------------------------
` DEPOSITION OF
` E. JAMES WHITEHEAD, PH.D.
`----------------------------------------------------
` January 10, 2014
` The Hilton Santa Cruz, 6001 La Madrona Drive
` Santa Cruz, California
`
`REPORTED BY:
`KATHERINE E. LAUSTER CSR 1894, RPR, CRR, LCR
`----------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street NW, Suite 1010
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`202-232-0646
`
`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`STEPHENSON DEPOSITION EXHIBITS:
`NUMBER DESCRIPTION PAGE
`Exhibit 2002 U.S. Patent No. 6,174,237 B1;
` 1-16-01; 7 pages...................117
`
`Exhibit 2003 Decision: 11-19-13; 22 pages......209
`
`Exhibit 2004 Computer printout "Rules of
` Card Games: Double Solitaire":
` Printed 1-6-14, http://web.
` archive.org/web/19991003061805/
` http://www.pagat.com/patience/
` double.html[01/06/2014 3:17:31
` PM]; 1 page........................112
`
`Exhibit 2005 Computer printout "Double
` Solitaire": Interactive Solitaire
` Network Card Game": Printed
` 1-6-14, http://web.archive.org/
` /web/19990302020628/http://
` solitaire.com[01/06/2014 3:20:05
` PM]; 2 pages.......................112
`
` ---o0o---
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` A P P E A R A N C E S
`
`FOR PETITIONERS GAME SHOW NETWORK and
`WORLDWINNER.COM:
` THOMAS LEACH, ESQ.
` tleach@merchantgould.com
` MERCHANT & GOULD
` 3200 IDS Center
` 80 South 8th Street
` Minneapolis, Minnesota 55402-2215
` t.612.336.4665 f.612.332.9081
`
`FOR THE PATENT OWNER JOHN H. STEPHENSON:
` TED M. CANNON, ESQ.
` ted.cannon@knobbe.com
` KNOBBE, MARTENS, Olson & Bear, LLP
` 2040 Main Street, 14th Floor
` Irvine, California 92614
` t.949.760.0404 f.949.760.9502
` and
` MILES A. ZVI, ESQ.
` mzvi@gsn.com
` GAME SHOW NETWORK
` 2150 Colorado Avenue, Suite 100
` Santa Monica, California 90404
` t.310.255.6901 f.310.255.6989
`
`Page 2
`
`Page 4
`
` INDEX OF EXAMINATIONS
`
`WITNESS: E. JAMES WHITEHEAD, PH.D.
`
`ATTORNEY PAGE
`
`BY MR. LEACH 5, 149, 242
`
`BY MR. CANNON 225
`
` EXHIBIT INDEX
`
`GAMESHOW NETWORK DEPOSITION EXHIBITS:
`
`NUMBER DESCRIPTION PAGE
`
`Exhibit 1002 International Patent Application
`
` Publication No. WO 97/39811:
`
` 10-30-97; 53 pages.................150
`
`Exhibit 1005 Declaration of E. James
`
` Whitehead, Jr., Ph.D. In Support
`
` of Petition for Inter Partes
`
` Review of U.S. Patent No.
`
` 6,174,237: 5-17-13; 76 pages.......81
`
`Exhibit 1006 Curriculum Vitae: 5-17-2013;
`
` 8 pages.............................10
`
`Page 3
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` SANTA CRUZ, CALIFORNIA
` FRIDAY, JANUARY 10, 2014; 9:12 A.M.
` ---o0o---
` THE REPORTER: Before we begin, I need to
`put you under oath.
` THE WITNESS: Okay.
` THE REPORTER: Do you solemnly state,
`under penalty of perjury, the testimony you are
`about to give will be the truth, the whole truth,
`and nothing but the truth?
` THE WITNESS: I do.
`
` E. JAMES WHITEHEAD, Ph.D.,
` having been duly sworn,
` testified on his oath as follows:
`
` EXAMINATION
`BY MR. LEACH:
` Q. Okay. Good morning, Dr. Whitehead.
` A. Good morning.
` Q. Can you please state your full name for
`the record?
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`Digital Evidence Group C'rt 2014
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`Page 5
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`1d62c6cf-633d-44c5-b7db-50101eaa33fa
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`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:02:09
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` A. Sure. Emmet James Whitehead, Jr.
` THE REPORTER: Hang on for a second.
` THE WITNESS: Okay.
` THE REPORTER: I have a problem.
` Okay.
`BY MR. LEACH:
` Q. And can you spell that too, please?
` A. Sure. Emmet, E-m-m-e-t, James, J-a-m-e-s,
`Whitehead, W-h-i-t-e-h-e-a-d, Junior.
` MR. LEACH: And can we put on the record
`here who is representing here?
` MR. CANNON: Sure.
` MR. LEACH: Okay. I'm Tom Leach with
`Merchant & Gould, and I represent the patent owner,
`John Stephenson.
` MR. CANNON: I'm Ted Cannon with Knobbe,
`Martens, Olson & Bear. I represent the petitioners,
`Game Show Network and WorldWinner.
` And with me attending is Miles Zvi,
`in-house counsel of Game Show Network.
`BY MR. LEACH:
` Q. Have you ever deposed before
`
`Page 6
`
`Mr. Whitehead -- or Dr. Whitehead?
` A. No.
` Q. Are you on any medication today that would
`impede your ability to understand my questions and
`answer -- answer truthfully?
` A. No.
` Q. If you don't understand a question that I
`ask, please let me know and I can clarify.
`Otherwise, if you answer, I assume that you
`understood the question and that the answer you gave
`is -- is your answer.
` A. Okay.
` Q. How did you prepare for your deposition
`today?
` A. Sure. So in preparation for the
`deposition today, read through the Stephenson
`patent, read through the Walker patent, read through
`my declaration.
` We also had a -- a meeting yesterday to --
`with Ted Cannon and Miles Zvi, to go over the, you
`know, materials in the two patents and in my
`declaration as well.
`
`Page 7
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` Q. And how long was the meeting yesterday?
` A. The meeting lasted approximately
`seven-and-a-half hours.
` Q. And can you tell me generally what you
`guys discussed in that meeting?
` A. We went over all of the claims in the
`Stephenson patent. We went over all of the points
`in my declaration concerning the -- the Stephenson
`patent. You know, we talked about Walker and what
`Walker had to say with respect to those.
` There was some discussion of how this
`particular proceeding would take place.
` Q. Okay. Did you look at any documents other
`than the Stephenson patent, the '237 patent, Walker,
`and your declaration?
` A. I did look at the Board preliminary ruling
`in the inter partes, and -- let's see. Also looked
`at the response that you prepared to that. So those
`were the -- I did not look at any other documents in
`preparation.
` Q. Thank you.
` Can you tell me generally what you know
`Page 8
`
`about patent law?
` A. So I'm not a lawyer and I'm not trained in
`patent law. I have been involved as an expert
`witness on several prior patent cases, so I have,
`you know, picked up some knowledge of patent law
`through that, but I don't claim any particular
`expertise in patent law.
` Q. Do you have a -- any patents of your own?
` A. I do not, no.
` Q. Can you tell me what cases that you've
`worked on as an expert in terms of patent law or
`patent cases?
` A. I guess, you know, I -- would be hard for
`me, on the spur of the moment here, to give you the
`exact, you know, names of the cases, so --
` Q. About how many were there?
` A. I believe it has been five -- five or six.
` Q. And in those five or six cases have you
`ever been deposed?
` A. No.
` Q. And I assume you've never been -- or
`you've never testified then, in those cases?
`Page 9
`Pages 6 to 9
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`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:06:44
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` A. No, I have made declarations, but I've
`never, you know, formally testified.
` Q. How did you come to understand the legal
`principles that you applied in your expert report?
` A. Right. So I had the legal principles
`explained to me by Ted Cannon and, you know, I used
`that in -- you know, that explanation -- in
`formulating my opinion on the case.
` Q. I'm going to hand you what's been marked
`as Game Show Network Exhibit 1006.
` (Game Show Network Exhibit Number 1006 was
` presented to the witness.)
`BY MR. LEACH:
` Q. Can you review this document and tell me
`what it is?
` A. This is my curriculum vitae.
` Q. And this was attached to your declaration,
`which was Game Show Network Exhibit 1005; correct?
` A. That is correct, yes.
` Q. In terms of your education, is everything
`on your curriculum vitae or Exhibit 1006?
` A. Yes. Yes, it is.
`
`Page 10
`
` Q. Do you have anything you'd like to add to
`it, such as certifications or other publications?
` A. No, this is correct.
` Q. In terms of your work history, does your
`CV accurately reflect your work history as well?
` A. Yes, it does.
` Q. Is there anything you'd like to add?
` A. No.
` Q. In terms of your work history and your
`education, do you think there's anything that's not
`on your Curriculum Vitae that it -- would be
`relevant and pertinent to this matter?
` A. There are a few things, yes. So one, you
`know, in the context of creating the game design
`program at the University of California, Santa Cruz,
`I was involved in creating our library's collection
`of computer games. And so this involved a
`substantial amount of background research in
`computer games from the, you know, '80s, '90s, and
`2000s, to try and to understand which games would be
`the best ones to include in our collection.
` So I think that kind of background
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`knowledge about computer games in the, you know,
`pre-2000 period is not, I think, as accurately
`reflected on the CV as my knowledge is.
` Q. Okay. And when did you review that
`material or -- or put together this library of
`computer games?
` A. That occurred in the period of 2007 to
`2010, primarily.
` Q. Can you generally tell me the process of
`preparing your declaration?
` A. Sure. So the process of preparing the
`declaration, you know, was contacted by Ted Cannon
`to perform an analysis of the Stephenson patent.
`That -- was asked to perform that analysis with
`respect to the Walker patent.
` I was -- had explained to me the legal
`principles by which to perform my analysis, so I
`then read the Walker patent and the Stephenson
`patent, and then prepared my analysis based on that.
` Ted Cannon and I had some phone
`conversations to go over that analysis. The -- you
`know, the declaration was prepared. You know, there
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`were a few revisions of that, and then the final
`draft was -- was developed, and that's what you see
`before you.
` Q. Who wrote the first draft of the
`declaration? I mean physically wrote it.
` A. Right. The first draft was created
`primarily by Ted Cannon, but there was some
`contribution from myself in that draft as well.
` Q. Okay. Can you tell me what your
`contribution was?
` A. At this point, I know it's long enough ago
`I don't recall exactly which -- which sections were
`my direct contribution and which ones were his.
` Q. So would it be fair to say that Ted
`drafted portions of it that came directly from him,
`and other portions came directly from you, and he
`put those together in one declaration?
` A. Yes.
` Q. And can you tell me about what portions
`came from Mr. Cannon and what portions came from
`you?
` A. You know, again, it was, you know, at this
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`Digital Evidence Group C'rt 2014
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`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:11:49
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`point, many months ago. You know, I just don't
`recall at that level of specificity anymore.
` Q. Going back to the library of computer
`games that you put together in 2007 to 2010, can you
`tell me how you went about doing that, and -- and
`first start with how many people were involved in
`the process? Were you supervising it or were you
`doing the research, pulling information and reading
`it to decide what went into the library, such
`things?
` A. Right. Yeah, the process for that
`involved me working with a small group of
`undergraduate students who had the knowledge about
`computer games, and they helped identify candidate
`games, but the -- sort of the actual purchase
`decisions, you know, those all came from myself.
` So I primarily was, you know,
`investigating a large number of games, primarily by
`looking up entries in Wikipedia, but also on other
`websites, to try and assess the importance and the
`contribution of the game. And then, you know, based
`on that importance and its contribution in the
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`evolution of game design, I decided whether that
`game should be purchased or not.
` Q. Okay. When you say a "library of games"
`is this physical -- like Nintendo, the box and some
`of the games that went with it, or -- tell me what
`is included in this library. I was thinking more a
`traditional library containing books, but --
` A. Right. Sure. Yeah, it's a -- the library
`itself contains a number of kind of examples of the
`game media, whether that's a particular cartridge,
`or a floppy disk, or a CD ROM.
` And the -- the library collection also
`does include some of the game consoles in cases
`where those are -- are harder to get, and the
`physical storage is sort of in a series of cabinets,
`but, you know, they're all cataloged, and they're
`available to be found, and checked out, and taken
`out and played, and then -- then returned.
` Q. About how many different games do you
`have?
` Or let's start with this. How many
`different game consoles or -- or -- I guess what
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`would you call it? How many different formats or
`consoles do you have?
` A. Right. Game consoles in the collection,
`as I recall, it's about six or seven.
` Q. Okay. And then how many different
`games -- are you saying that maybe one console might
`have multiple games?
` A. Right. Sure, yeah. So there are a little
`over 700 distinct titles, although some of those
`titles contain collections of games. So the total
`number of games is, I'm guessing, somewhere in the
`range of 850 to 900 distinct games.
` Q. When you were approached by Mr. Cannon to
`help on this matter, did you discuss this game
`library?
` A. I don't recall having discussed the game
`library particularly, you know, as part of my
`overall qualifications, though there was a
`discussion, when he first called, you know, about my
`qualifications. And, you know, that experience
`along with, you know, many other aspects of my
`background made me feel that I had the
`Page 16
`
`qualifications to serve as an expert in this case.
` Q. At some point did you disclose to
`Mr. Cannon, obviously, that you had this game
`library and you helped put it together?
` A. I cannot recall whether I did or not.
` Q. When did it -- when did you first tell
`Mr. Cannon or anyone at his law firm or GSN and
`WorldWinner, for that matter, about the game
`library?
` A. Again, I -- I do not recall.
` Q. Was it before today?
` A. It would have been in the initial
`discussion of my credentials.
` Q. And when would that have taken place?
` A. That would have been back in, I believe,
`April of 2013.
` Q. Going back to this game library, you said
`you had a small group of people that were
`identifying games. How did they go about
`identifying games?
` A. That was based on their background
`expertise from having played these games or having a
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:16:38
`09:16:43
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`09:19:01
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`familiarity with these games.
` Q. Were these people people that were
`studying game design, or were they people that were
`just gamers and interested in games and had a vast
`knowledge because they played a lot of games what
`type games were out there?
` A. They were students in our computer game
`design major, so they were studying game design
`programming.
` Q. In terms of supervising the collection of
`these games, who did most of the work in terms of
`collecting games, and then deciding whether they'd
`be included in your library?
` A. So I performed the action of identifying
`the games to be acquired. I then gave that list to
`personnel at our science and engineering library.
`They then performed the activity of, you know,
`actually physically acquiring the game and
`cataloging it, putting it on the shelves and
`maintaining the check in/check out records of those
`games.
` Q. In terms of the Stephenson patent, do you
`Page 18
`
`believe that, given all the various games you've
`reviewed in assembling this game library that Walker
`is the closest prior art to the Stephenson patent?
` A. So --
` MR. CANNON: Objection. Outside the scope
`of direct.
` THE WITNESS: Okay. So I was not asked to
`perform a broad survey of the existing literature to
`determine which would be the best possible source.
`You know, I was provided Walker and performed my
`analysis based on Walker.
`BY MR. LEACH:
` Q. As you sit here today, can you think of
`any games that you've reviewed, in assembling this
`game library or anywhere else, that would be better
`prior art to the Stephenson patent?
` MR. CANNON: Objection. Outside the
`scope.
` THE WITNESS: Okay. There again, that
`wasn't part of the analysis that I was asked to
`perform. I think if I was to answer that question I
`would really need to go out and -- and perform an
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`analysis of these games.
` Because of the very precise nature of the
`claims, you know, it's hard to provide an answer to
`that just off the cuff.
`BY MR. LEACH:
` Q. Sure, and -- but I'm just asking right now
`can you think of any that would be closer prior art
`to the Stephenson patent than the Walker reference?
` A. So, a clarification. Are you asking
`specifically of the games that are in the library
`collection, or any game in general?
` Q. Any game in general that you think would
`predate the Stephenson patent that would be closer
`prior art than the Walker reference?
` A. So, you know, again, the sort of notion of
`closer or further away would require some detailed
`analysis on my part.
` There are two games which are very similar
`to the Stephenson patent. So there is this game,
`Golden Tee, which is a golf game with built in
`tournament aspects. There is also a game, Buzztime
`which is a Network's trivia game.
`
`Page 20
`
` Q. I apologize, but one thing I forgot to
`tell you is, any time during this deposition you
`need to take a break, just let me know. We can go
`off the record and you can take a break.
` A. Okay.
` Q. The only thing that I would ask that is
`that we don't take a break when there's a pending
`question, so we'll get an answer to the question,
`then we can take a break.
` A. Absolutely.
` Q. So I want to go back to preparing your
`declaration, and -- and I'd really like to
`understand, you know, the contributions that you
`made versus the contributions that the lawyers made.
`Can you tell me any more detail about what you
`contributed versus what the lawyers contributed?
` A. I'm -- nothing is coming to mind that
`would provide additional detail over what I've said
`so far.
` Q. Have you written any papers that relate to
`assessing skill level by game players?
` A. So, yes. There is one paper that -- that
`Page 21
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`202-232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:22:13
`09:22:16
`09:22:23
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`touched upon the subject. That's the paper,
`"Motivational Game Design Patterns of 'Ville Games."
` Q. Can I stop you for a second? Can you tell
`me what paragraph number -- I see you're looking at
`your CV, which is Exhibit 1006, and you're on page
`2, I believe?
` A. Yeah, I'm on page 2 and paper number 2
`under "Peer Reviewed Conference and Workshop
`Publications."
` Q. Can you tell me generally what that paper
`discussed?
` A. That paper is generally about ways of
`designing social network games to make them more
`engaging to players and make players want to
`continue returning to that game. And so my
`recollection is that this paper touches upon skill
`levels as one way to motivate players.
` Q. Does it touch on or discuss ways in which
`you can gauge or find an absolute gauge of a
`player's skill?
` A. No.
` Q. And this paper you published in June of
`Page 22
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`2012; is that correct?
` A. That's when it was published. It was, you
`know, written several months prior to that.
` Q. Are there any other papers that you can
`think of or that are on your CV that deal with
`assessing skill levels in games? Or I should
`rephrase. That assess a player's skill level in a
`game?
` A. Let me see. No. No.
` Q. Have you ever testified as an expert
`before in computer games in any capacity?
` A. Yes, I -- I have served as an expert
`witness on one prior computer game-related ex- --
`patent case, yes.
` Q. Okay. And what case was that?
` A. I can't remember the exact name, but it
`was -- it was a particular individual versus, I
`think it was Game -- Game Truck, I believe was the
`-- was the name of one of the parties.
` Q. And when was that?
` A. That was earlier this year.
` Q. 2013 or 2014?
`
`Page 23
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` A. I'm sorry. Yes.
` Q. It's okay.
` A. Yeah, earlier in -- in 2013. I can't
`remember exactly. It was either late summer or --
`or early fall.
` Q. And how was that case resolved?
` A. It was settled, I believe.
` Q. Okay. And so you're no longer acting as
`an expert for --
` A. No. No, that case is inactive.
` Q. Who were you representing in that case?
` A. Um --
` Q. Let me rephrase that. Were you
`representing the individual, the plaintiff, or the,
`I believe, Game Truck, was that the defendant?
` A. Sorry. I'm trying to recall. It was --
`was a -- somewhat unusual.
` So -- so I -- so I can't remember which
`party was which at this point. My recollection is
`the patent holder was asserting against another
`company that provided mobile, you know -- you know,
`network online game play trucks, essentially a -- a
`Page 24
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`game party truck, and I was representing the company
`that did not own the patent that was being asserted
`against.
` Q. So you represented the defendant in that
`case?
` A. Yes.
` Q. And you believe that was the company Game
`Truck or the company that --
` A. I can't recall whether that was Game Truck
`or the other -- other company. They sort of had
`somewhat -- the names are very similar and I can't
`remember the two names at this point. I'm sorry.
` Q. Okay. But in any event you recall
`representing the defendant, not the patent owner?
` A. That's correct.
` Q. And you were retained by the defendant to
`act as an expert in computer games?
` A. That's correct.
` Q. Did -- did a court -- so you -- you were
`never deposed in that matter?
` A. No.
` Q. And you never testified in court in that
`Page 25
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`202-232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`1d62c6cf-633d-44c5-b7db-50101eaa33fa
`
`

`

`1/10/2014
`
`GSN v. Stephenson
`
`E. James Whitehead
`
`09:27:39
`09:27:40
`09:27:41
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`matter?
` A. No.
` Q. Have you ever acted as an expect in
`designing tournaments?
` A. No.
` Q. Have you ever acted as an expert in
`computer game tournaments?
` A. No.
` Q. So would be it be fair to say that before
`this case you have never been considered an expert
`in computer games and game tournaments?
` A. It would not be fair to say that I am not
`an expert in computer games. Uh -- (Nods head.)
` Q. Would it be fair to say that you're not an
`expert in computer game tournaments?
` A. Yes.
` Q. Have you ever published any articles
`regarding computer game tournaments?
` A. I myself have not published articles on
`computer game tournaments. There have been several,
`you know -- there's been at least one research
`project at UC Santa Cruz involving computer game
`Page 26
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`tournaments, a particular research project where a
`student created an artificial intelligence player
`for the game Starcraft, then entered that into
`Starcraft tournaments.
` Q. I take it you weren't involved in that
`project?
` A. I was not the lead investigator on that
`project. I had a -- an awareness of -- of the
`project, however.
` Q. I want to understand. When you say
`"awareness," were you involved in it like studying
`it, helping with it, or were you just knowledgeable
`that that was going on?
` A. The latter. I was knowledgeable that that
`was going on.
` Q. In your declaration, which is Game Show
`Network Exhibit 1005, you list a few papers that you
`wrote on game design; correct?
` A. Correct.
` Q. And I believe the earliest one was in
`2008; correct?
` A. Correct.
`
`Page 27
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` Q. So looking at your CV, which is Game Show
`Network Exhibit 1006, you focused on networks and
`web architectures up to the year 2000; correct?
` A. Partially correct. So, you know, my
`research activities, you know, in grad school -- so
`from 1992 to 2000 -- involved both the study of
`software engin