UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DELL, INC., HEWLETT-PACKARD
`COMPANY, AND NETAPP,
` Petitioners,
`VS. CASE NO. IPR2013-00635
`ELECTRONICS AND TELECOMMUNICATIONS
`RESEARCH INSTITUTE
` Patent Owner
` PATENT NO. 6,978,346
`______________________________________
`
`DISCOVERY DEPOSITION
` MELVIN RAY MERCER, PH.D.,
`
` TAKEN ON
` TUESDAY, 2014
` 9:19 A.M.
`
` HAYNES AND BOONE, LLP
` 2505 PLANO ROAD, SUITE 4000
` RICHARDSON, TEXAS 75082
`
`Patent Owner ETRI Ex. 2006
`IPR2013-00635
`Dell, HP & NetApp v. ETRI
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DELL, INC., HEWLETT-PACKARD
`COMPANY, AND NETAPP,
` Petitioners,
`VS. CASE NO. IPR2013-00635
`ELECTRONICS AND TELECOMMUNICATIONS
`RESEARCH INSTITUTE
` Patent Owner
` PATENT NO. 6,978,346
`______________________________________
`
`DISCOVERY DEPOSITION
` MELVIN RAY MERCER, PH.D.,
`
` TAKEN ON
` TUESDAY, 2014
` 9:19 A.M.
`
` HAYNES AND BOONE, LLP
` 2505 PLANO ROAD, SUITE 4000
` RICHARDSON, TEXAS 75082
`
`Patent Owner ETRI Ex. 2006
`IPR2013-00635
`Dell, HP & NetApp v. ETRI
`
`
`
`1
`
`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 2
`APPEARANCES:
`
`2 3
`
`FOR THE PATENT OWNER:
`4 Matthew C. Phillips, Esquire
`5 Derek Meeker, Esquire
`6 RENAISSANCE IP LAW GROUP, LLP
`7 9600 SW Oak Street, Suite 560
`8 Portland, Oregon 97223
`9 (503) 964-1129
`10 (503) 517-9919
`11 matthew.phillips@renaissanceiplaw.com
`12 derek.meeker@renaissanceiplaw.com
`13
`14 FOR THE PETITIONERS:
`15 John Russell Emerson, Esquire
`16 Thomas W. Kelton, Esquire
`17 HAYNES BOONE, LLP
`18 2505 Plano Road, Suite 4000
`19 Richardson, Texas 75082
`20 (972) 739-6900
`21 (214) 651-5000
`22 (201) 200-0884 (Fax)
`23 russell.ermerson.ipr@haynesboone.com
`24 thomas.kelton.ipr@haynesboone.com
`25
`
`Patent Owner ETRI Ex. 2006
`IPR2013-00635
`Dell, HP & NetApp v. ETRI
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 3
`1 INDEX
`2 Page
`
` EXAMINATION BY MR. PHILLIPS 5
`
` EXAMINATION BY MR. EMERSON 166
`
` RE-EXAMINATION BY MR. PHILLIPS 193
`
`3 4
`
`5 6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 4
`1 EXHIBITS
`2 Exhibit Page
`
` REFERRED EXHIBITS
`
` 1006 Exhibit 1006 14
`
` 1005 Exhibit 1005 16
`
`3 4
`
`5 6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 5
`DISCOVERY DEPOSITION
`1
`2 MELVIN RAY MERCER, PH.D.,
`3 TAKEN ON
`4 TUESDAY, 2014
`5 9:19 A.M.
`
`6 7
`
`THE REPORTER: Any agreements?
`MR. EMERSON: No.
`8
`9 MELVIN RAY MERCER, PH.D., having been first duly
`10 sworn, testified as follows:
`11 EXAMINATION
`12 BY MR. PHILLIPS:
`Q. All right. Good morning, Dr. Mercer.
`13
`14 A. Good morning.
`Q. My name is Matthew Phillips. I'm with the
`15
`16 law firm Renaissance IP Law Group, and I represent
`17 the patent owner in this inter parties review. With
`18 me is Derek Meeker; he's also with Renaissance IP
`19 Law Group. And I'm going to ask you some questions
`20 today.
`Let's start with can you please state your
`21
`22 full name for the record.
`23 A. My full name is Melvin Ray Mercer.
`Q. And, Dr. Mercer, have you ever been
`24
`25 deposed?
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 6
`1 A. Yes, I have.
`Q. Approximately how many times?
`2
`3 A. Many times. Since 1984.
`Q. More than 50?
`4
`5 A. I don't keep a record, but it wouldn't
`6 surprise me.
`Q. Okay. Then you're probably familiar with
`7
`8 the procedures. I will just go over them very
`9 briefly, if that's okay.
`So you have been placed under oath by the
`10
`11 court reporter, Ms. Baker, which means you must give
`12 truthful and complete answers to my questions.
`13 A. Uh-huh.
`Q. You're testifying under the penalty of
`14
`15 perjury today.
`16 A. Yes.
`Q. I will ask you a series of questions. If
`17
`18 my questions are not clear, please let me know, and
`19 I will do my best to try to rephrase them. I'm not
`20 trying to ask you trick questions. Just trying to
`21 understand what you know about this case.
`Counsel for the petitioners may object to
`22
`23 some of my questions, and they're doing that to
`24 preserve objections for the record for the lawyers
`25 to deal with later. Even if counsel objects to a
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 7
`1 question I ask, you still have to answer it.
`Do you understand that?
`2
`3 A. I do.
`Q. Okay. Ms. Baker will be -- she's the
`4
`5 court reporter. She will be taking down everything
`6 we say on the record to make a transcript. That
`7 means we need to answer and speak audibly. So
`8 please say yes or no to questions that call for a
`9 yes or no answer.
`And that also means only one of us can
`10
`11 speak at a time. So I will do my best not to
`12 interrupt you, and I would ask you also let me
`13 finish the question before you answer.
`14 A. I understand.
`Q. Is there any reason you cannot competently
`15
`16 testify today?
`17 A. No reason I'm aware of.
`Q. Okay. No mental or physical condition
`18
`19 that would limit your ability to testify today?
`20 A. Not to my knowledge.
`Q. Okay. Have you recently taken any
`21
`22 medication drugs or alcohol that would limit your
`23 ability to testify today?
`24 A. I don't think so.
`Q. Okay. If at any time you would like to
`25
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 8
`1 take a break, just say so, and we'll take a break.
`2 It is important to take breaks, and the reporter and
`3 I will need a break every once in a while anyway.
`4 The only thing I would ask is that if I have a
`5 question outstanding to you, please answer that
`6 question before you ask for a break.
`And I also wanted to mention that during
`7
`8 the breaks you should not talk to counsel for the
`9 petitioner about your testimony today and that
`10 includes during our lunch break.
`11 A. I understand.
`Q. Dr. Mercer, you have submitted a
`12
`13 declaration in this review, which is IPR Number
`14 2013-00635. Are you familiar with that declaration?
`15 A. I am familiar with my declaration. I
`16 could not certify the number that you gave.
`Q. Okay.
`17
`18 A. But I'm familiar with the declaration that
`19 I wrote.
`Q. Okay. Do you have a copy of that with you
`20
`21 today?
`22 A. I did not bring a copy with me.
`Q. No problem. I do have a copy, which I may
`23
`24 show you later. You don't need a copy at this point
`25 to answer the next few questions that I have.
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 9
`I believe in paragraph 2 of your
`1
`2 declaration you state that you're being compensated
`3 for your work in this matter at your standard hourly
`4 rate.
`What is that standard hourly rate?
`5
`6 A. My standard rate is $650 per hour for all
`7 work done.
`Q. Okay. And does that include your time
`8
`9 testifying here today?
`10 A. It does.
`Q. Who exactly is paying you for your work on
`11
`12 this case?
`13 A. I never know the answer to that question.
`14 I submit my invoices to Haynes and Boone, and what
`15 happens after that is sort of a mystery to me. I
`16 don't know.
`Q. When you are paid for the invoices you
`17
`18 submit, is the payment received from Haynes and
`19 Boone?
`20 A. To the best of my recollection, that's
`21 always been the situation.
`Q. Okay. Dr. Mercer, do you own stock in any
`22
`23 of the defendants that are been sued by Safe
`24 Storage, LLC?
`25 A. Not to my knowledge.
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 10
`Q. Do you know all the defendants who have
`1
`2 been sued by Safe Storage?
`3 A. I'm not sure I do. There are three that I
`4 remember on the documents that I have looked at.
`Q. Okay. Let's start with them.
`5
`Do you own any stock in Dell,
`6
`7 Incorporated?
`8 A. No.
`Q. How about Hewlett-Packard Company?
`9
`10 A. No.
`Q. How about NetApp?
`11
`12 A. No.
`Q. How about Dot Hill Systems?
`13
`14 A. No, but I do want to make one
`15 clarification, and that is, I have retirement funds
`16 that are administered by Briaud Financial. I don't
`17 really know. And they invest in Fidelity, and I
`18 never follow -- do you understand what I'm saying --
`19 I never follow the fine details. So when I answer
`20 these questions they're to my knowledge. But what
`21 happens to those funds, I don't really follow.
`22 But to answer your question, no, I do not
`23 own stock in the company that you just asked me
`24 about.
`Q. I appreciate that. Thank you.
`25
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 11
`Do you own stock in any individual company
`1
`2 that is not -- you know, I'm not asking about
`3 whether it's managed through a fund or the situation
`4 you described.
`5 A. Any stock at all? That I now own any
`6 stock at all?
`Q. Yes, that's my question.
`7
`8 A. I believe the answer to that question is
`9 no, but I'm not sure. I listed my assets a year-
`10 and-a-half ago, and I don't remember. Oh, I do have
`11 to correct that. When my father passed away -- no, I
`12 don't think it was stock; I think it's all bonds. I
`13 don't think there were any stocks that he had.
`14 Do you understand what I'm saying? A part
`15 of his estate came to me. It came through Briaud
`16 Financial again. And he had some portfolio, and I
`17 believe those were all bonds.
`Q. Okay. I appreciate that explanation. I'm
`18
`19 just going to run through a few more of these
`20 defendants. Do you have any stocks or bonds in
`21 Hitachi?
`22 A. Not to my knowledge.
`Q. Silicone Graphics International?
`23
`24 A. Not to my knowledge.
`Q. Cisco?
`25
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 12
`1 A. Not to my knowledge.
`Q. VMwear?
`2
`3 A. Not to my knowledge.
`Q. Infotrend?
`4
`5 A. Not to my knowledge.
`Q. Nexsan?
`6
`7 A. Not to my knowledge.
`Q. Overland Storage?
`8
`9 A. Not to my knowledge.
`Q. Oracle America?
`10
`11 A. Not to my knowledge.
`Q. ATTO Technologies?
`12
`13 A. Not to my knowledge.
`Q. Huawei. That's H-U-A-W-E-I Enterprise?
`14
`15 A. Not to my knowledge.
`Q. Just a couple of more.
`16
`Emulex?
`17
`18 A. Not to my knowledge.
`Q. And last, International Business Machines?
`19
`20 A. Not to my knowledge.
`Q. Okay. Thank you. Actually, I have four
`21
`22 more to ask you about.
`Promise Technology?
`23
`24 A. Not to my knowledge.
`Q. IQSS?
`25
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 13
`1 A. Not to my knowledge.
`Q. 3PAR?
`2
`3 A. Not to my knowledge.
`Q. StoneFly?
`4
`5 A. Not to my knowledge.
`Q. Thank you.
`6
`How much of your work these days is
`7
`8 consulting on patent cases?
`9 A. The vast majority.
`Q. If you could estimate the percentage of
`10
`11 your income that is attributable to consulting on
`12 patent cases, what would you say that percent is?
`13 A. It's probably over 90 percent.
`Q. Have you ever worked with the law firm
`14
`15 Haynes and Boone, other than in this case?
`16 A. Yes.
`Q. Approximately how many cases?
`17
`18 A. I don't have a specific recollection, but
`19 probably three to six; that's my estimate.
`Q. Have you ever worked on a patent case
`20
`21 before for any of the petitioners in this case?
`22 A. And by "the petitioners," you're talking
`23 about the three that were named?
`Q. Yes. Dell, HP and NetApp.
`24
`25 A. Okay. So I have worked before for Dell.
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 14
`1 I believe that I have worked before for HP. To my
`2 knowledge, I have never worked before for NetApp.
`Q. Okay. Dr. Mercer, I'm going to hand you a
`3
`4 copy of the declaration that you have submitted in
`5 this case. This is not a complete copy. It does not
`6 include pages that relate only to challenges for
`7 which trial was not instituted. But it does
`8 include, just for the record, pages 1 through 23 and
`9 then pages 130 through 163.
`I am going to hand this document to you.
`10
`11 And it's already been assigned an exhibit number in
`12 this case, which is Exhibit 1006. So we're not
`13 going to mark this as an exhibit right now.
`MR. EMERSON: Do you happen to have any
`14
`15 extra copies or should I --
`MR. PHILLIPS: I do not. I'm sorry.
`16
`MR. EMERSON: -- make one? Okay. Well,
`17
`18 I'll share with you guys.
`Q. (BY MR. PHILLIPS) Do you recognize this
`19
`20 as your declaration, Dr. Mercer?
`21 A. I believe that's true, yeah. I recognize
`22 it as a part of my declaration. And I have a
`23 specific recollection that Page 23 was the last
`24 relevant, what I call front matter, prior to
`25 challenges that were not important in this
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 15
`1 proceeding.
`Q. Okay. Can you tell me what the process
`2
`3 was that you went through to prepare this
`4 declaration?
`5 A. As usual, I was contacted by an attorney
`6 and asked to work on it. I looked at the material
`7 to see if I thought I had expertise to participate.
`8 And eventually the decision was that I did have
`9 expertise, and I signed a letter of agreement with,
`10 I believe with Haynes and Boone.
`11 The first thing I did, of course, is to
`12 read the '346, the patent material. I looked at the
`13 file history. And among other things, I looked at
`14 prior art that was produced, and I also was asked to
`15 produce new prior art.
`16 Is that the kind of question that you had,
`17 and did I give you the kind of answer that you
`18 needed?
`Q. Yes. Thank you.
`19
`Then did you search for prior art to the
`20
`21 '346 patent?
`22 A. I did.
`Q. You did. And what did you find?
`23
`24 A. Well, among other things, I think it would
`25 only be fair to say that one of my colleagues
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 16
`1 suggested the '950. So I made the suggestion to
`2 Haynes and Boone that the '950 be considered. That
`3 is, I think, the most germane piece of information
`4 that I can give you as an answer.
`Q. And by "the '950," are you referring to
`5
`6 the patent that is U.S. Patent Number 5,574,950 in
`7 which the first named inventor is Roger Hathorn?
`8 A. I didn't bother to memorize the first four
`9 digits of the '950, but I will accept your
`10 representation that those are the first four digits.
`Q. Maybe this will help, Dr. Mercer. I am
`11
`12 going to hand you a copy of the '950 patent. It's
`13 been labeled as Exhibit 1005 in this proceeding.
`Please take a look at that and tell me if
`14
`15 that is what you understand the '950 patent to be.
`16 A. Yes. There's only one point of confusion,
`17 and that is either the '346 or the '940 had a
`18 correction certificate. And the first thing I did
`19 was to go through one of those two and instantiate
`20 those corrections into the body of the document.
`21 But I don't honestly remember whether it was the
`22 '950 or the '346.
`23 So if there no correction certificate
`24 associated with '950, then this is exactly what I
`25 recognize as the '950 patent.
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 17
`Q. Okay. Thank you.
`1
`And did you find any other prior art
`2
`3 besides the '950 patent?
`4 A. Yes, I did.
`Q. And did any of that prior art make its way
`5
`6 into the petitioner for inter parties review that
`7 was filed under this Case Number IPR 2013-00635?
`8 A. None that I remember -- recall at this
`9 particular time.
`Q. Okay. What do you remember about the
`10
`11 other prior art that you found?
`12 A. Well, the first thing is I had two
`13 declarations and there were two -- there were two
`14 things that came as separate requests for re-exam to
`15 the -- if it's okay, I'll just say the board. I'm
`16 talking about the PTO board that is responsible for
`17 this investigation.
`18 So there were two. And those are a little
`19 hard for me to separate into this one, which I
`20 considered to be number one, and the other one,
`21 which I considered to be number two.
`Q. Okay.
`22
`23 A. But my recollection is that Weygant is one
`24 of the things that I looked at. My recollection is
`25 the proposal was that Weygant anticipated some of
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 18
`1 the claims. But other claims may have been 103, and
`2 there might have been Mylex, I think, is one of the
`3 pieces of secondary art. And then there were
`4 others, too. I don't have a specific recollection
`5 of the names of those pieces of art.
`Q. Do you have an opinion about what is the
`6
`7 most relevant piece of prior art that you found for
`8 the '346 patent?
`9 A. No. I don't make those kinds of
`10 judgments. I'm just asked to say, Are the
`11 teachings, as understood by one of the skill of the
`12 art, sufficient to meet the limitations of an
`13 asserted claim? That's the kind of things I do.
`Q. Okay. So you said that you were contacted
`14
`15 by Haynes and Boone; you searched for prior art; you
`16 located the Hathorn '950 patent. Then what
`17 happened?
`18 A. Well, I didn't necessarily mean that it
`19 was in this order, but among other things that's
`20 what happened.
`21 Obviously, eventually, there was a
`22 decision that I would write a declaration. It would
`23 be in support of a petition, and I coordinated with
`24 the lawyers at Haynes and Boone. And I also, in
`25 some sense, I talked with, but didn't actively work
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 19
`1 with, a colleague who was also involved in this in
`2 sort of a consulting way.
`Q. What was that colleague?
`3
`MR. EMERSON: You can answer.
`4
`THE WITNESS: Okay.
`5
`6 A. Dr. Reddy, R-E-D-D-Y.
`Q. (BY MR. PHILLIPS) And what is Dr.
`7
`8 Reddy's first name?
`9 A. I don't know, but he goes by his third
`10 name, I think, which is Narasimha. I can spell
`11 that.
`Q. Please.
`12
`13 A. N-A-R-A-S-I-M-H-A.
`Q. And what was Dr. Reddy's involvement in
`14
`15 this process in preparing your declaration?
`16 A. Well, as I indicated before, Dr. Reddy,
`17 before he became a professor, worked at IBM
`18 Research, TJ Watson Research. So my recollection
`19 was that IBM was doing these sorts of things very,
`20 very early. And among other things, I asked him if
`21 he was familiar with that sort of art, and, if so,
`22 if he could suggest to me pieces of prior art. And
`23 the '950 is one of the things that he brought to my
`24 attention.
`Q. Okay. Did you have any written
`25
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 20
`1 communications with Dr. Reddy?
`2 A. I think the chances of that are very slim.
`Q. How did you communicate with him?
`3
`4 A. Usually by telephone; sometimes, perhaps,
`5 in person.
`Q. Does he reside in Texas?
`6
`7 A. Yes.
`Q. You don't recall having any e-mails with
`8
`9 him?
`10 A. As I said, it's very unlikely. If there
`11 were e-mails, they would have had to do with
`12 scheduling or something like that. But they would
`13 not have technical content because that is not my
`14 customary and normal procedure in these kind of
`15 activities because I know that's not privileged
`16 information.
`Q. Right. Did you have any written
`17
`18 communications with the lawyers at Haynes and Boone
`19 about your declaration?
`20 A. Well, clearly they read the declaration
`21 itself. Are you talking about -- I believe you --
`22 you restricted it to written communications?
`Q. Yes.
`23
`24 A. I think it would be fair to say that the
`25 only written communications were the documents that
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 21
`1 you see here; the documents that I would call
`2 declaration number two and the drafts associated
`3 with those prior to the production of filing the
`4 document. That's what I would remember and that
`5 would be my customary and normal procedure.
`6 I might have provided supporting
`7 information like, for example, a definition out of
`8 the dictionary.
`Q. So you did exchange drafts of your
`9
`10 declaration with Haynes and Boone; is that right?
`11 A. Yes.
`Q. Approximately how many drafts do you
`12
`13 recall you exchanged with Haynes and Boone?
`14 A. I really couldn't say. It may be -- I
`15 mean, I would just be guessing. If you want me to
`16 guess, I will.
`Q. Please.
`17
`18 A. I think --
`MR. EMERSON: Objection, form.
`19
`20 A. -- I have a specific recollection of --
`21 well, again, there is a real confusion between
`22 declaration one and declaration two. So I'm
`23 separating those out.
`Q. (BY MR. PHILLIPS) Okay.
`24
`25 A. But my conjecture would be four or five.
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
`Dell, HP & NetApp v. ETRI
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 22
`Q. Dr. Mercer, do you recall that your
`1
`2 opinions, as expressed in any draft of the
`3 declaration, changed from version to version?
`4 A. Well, clearly the draft is -- the drafts
`5 are probably different than the final. Usually
`6 drafts are augmented as they grow. There are new
`7 ideas and new pieces of information and new ways of
`8 doing things. There are corrections. But I think
`9 you're asking about fundamental opinions. And I
`10 don't believe there were any changes in the
`11 fundamental opinions, except maybe if I found new
`12 support. Then the opinion was -- I considered to be
`13 more bolstered by that new piece of information.
`Q. Did anyone else besides you draft any
`14
`15 section of your declaration?
`16 A. Yes. I'm sure that Mr. Kelton did the
`17 legal section because I never do the legal section.
`18 I ask the attorneys to do that.
`Q. Okay. Can you tell me which sections are
`19
`20 the legal sections that you're referring to?
`21 A. If you look at the very bottom of Page 5
`22 you will see a heading, "Relevant Legal Standards."
`23 And all of page 6 and the top part of page 7 to the
`24 section that begins, "Background of the '346
`25 Patent."
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`Patent Owner ETRI Ex. 2006
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 23
`Q. Okay. Other than this section that you
`1
`2 just referred to under the heading "Relevant Legal
`3 Standards," did anyone else besides you draft any
`4 other part of your declaration?
`5 A. Can you explain what you mean by "draft"?
`Q. Write the words that appear in the
`6
`7 declaration.
`8 A. I think there's a good chance that other
`9 people put words in this declaration, but I don't
`10 have a specific recollection one way or the other.
`11 I mean, we're always -- in the process of reviewing,
`12 for example, you're always making corrections and
`13 changes and updates and those sorts of things.
`14 But I don't keep a record of that. And,
`15 ultimately, every single word that's in here was, as
`16 far as I'm concerned, is my work even if the
`17 original words were written by someone else.
`Q. Okay. I'm going to ask you some questions
`18
`19 about your qualifications.
`Can you tell me about your experience with
`20
`21 RAID systems?
`22 A. The first piece of experience that I think
`23 was most germane is in 1984 my wife formed a
`24 company, and it had the objective of online data-
`25 based management technical conferences. So I helped
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 24
`1 her to design that online system. And I
`2 specifically remember we bought a Dell RAID. And
`3 curiously enough, it didn't work. It failed. Not -
`4 - I mean, almost immediately.
`5 So, obviously, I was familiar with RAIDs
`6 from years and years ago. I have been familiar with
`7 the architecture of computers back into 1964, though
`8 I'm not saying that I studied RAIDs in 1964. But,
`9 at any rate, it struck me as kind of funny that we
`10 got this super reliable storage device and it -- the
`11 next one worked fine as far as I know, and it's
`12 working until today .
`13 But, at any rate, I think -- I have
`14 certainly done a lot of consulting work. I can, if
`15 you like, go through and see if there is any of that
`16 consulting work that was specifically targeted
`17 towards RAIDs.
`18 I have taught courses. Some of those
`19 courses, the computer architecture courses, involve
`20 RAIDs. And, obviously, just as a professional,
`21 that's one of the things that you normally acquire
`22 information about in the course of your activities.
`Q. Okay. Now, Dr. Mercer, in your CV, which
`23
`24 you attached to your declaration, you have an
`25 extensive list of courses that you have taught. I
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 25
`1 am going to hand this to you and ask you if you can
`2 identify which of the courses on this list involved
`3 your teaching of RAID or RAID technology?
`So this is a part of also your
`4
`5 declaration, which has been given Exhibit Number
`6 1006. It's pages 165 through 185, and I believe it
`7 is your CV.
`8 A. Yes. Okay.
`Q. And if -- do you recognize this as your
`9
`10 CV?
`11 A. I do.
`Q. Great. And if you would turn to Page 182,
`12
`13 that is where a list of courses at Texas A&M
`14 University begins --
`15 A. Right.
`Q. -- and continues on to the next page.
`16
`17 Which of those courses involved RAID technology?
`18 A. Just so your record is exactly correct,
`19 182 contains courses at Texas A&M, but the top of 19
`20 involves courses at University of Texas at Austin.
`Q. Thank you.
`21
`22 A. Just for the record.
`23 Okay. So the first -- the top course that
`24 you see there is the fall of 2004, Testing and
`25 Diagnosis of Digital Systems. That course is really
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 26
`1 focused on enforcing reliability in digital systems.
`2 It's a graduate-level course. And I don't -- I
`3 mean, I don't have a specific recollection of
`4 everything I said about RAIDs, but certainly RAIDs
`5 were in the class of things that I would talk about
`6 with respect to reliability in terms of
`7 architectural aspects.
`8 You will see a number of classes that are
`9 titled, EE2498, Introduction to Digital Logic
`10 Design. And that is an introductory-level course
`11 and it's focused on logic design. So I would not
`12 have taught RAIDs from the architectural point of
`13 view, but I could certainly have used RAIDs as an
`14 example where reliability was important. Because the
`15 digital logic students need to understand that you
`16 don't just build these things, but that there's a
`17 very high expectation that when they're used,
`18 they're reliable.
`Q. Okay. Let's switch a little bit here.
`19
`20 Have you ever designed a RAIDs system, Dr. Mercer?
`21 A. Not that I remember.
`Q. In your CV you also have quite an
`22
`23 extensive list of papers that you have written. Can
`24 you tell me if any of these papers relate to RAID
`25 technology?
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 27
`1 A. Well, I think there is almost no doubt
`2 that the vast majority of these papers involve the
`3 development of software; mostly computer-aided
`4 design software. The systems on which that software
`5 is designed certainly would logically use RAID
`6 technology. There is not much doubt about that.
`7 I don't believe that any of the these
`8 papers have RAID technology as their central focus
`9 because my area of research at the university had to
`10 be very narrowly focused, and most of these papers
`11 are focused on a narrow area of research. And my
`12 primary area of research was not RAID technology.
`Q. What was your primary area of research?
`13
`14 A. So I was named -- actually, I was named an
`15 IEEE fellow, and I was asked to give a title for how
`16 I received that award. And I think I said for
`17 contributions to the testing -- to the art and
`18 science of testing and validating logic systems.
`Q. Well, congratulations. I know it's quite
`19
`20 an honor to be an IEEE fellow.
`21 A. I was just -- I was just trying to -- I
`22 mean, that was a case where I had a really short --
`23 and I think that's what you want, something kind of
`24 short. It's a synopsis.
`Q. And is that a fair characterization of the
`25
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
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`Melvin Mercer, PhD June 3, 2014 NDT Assign # 18272-1 Page 28
`1 research that you performed as a professor?
`2 A. Well, as a synopsis, it is. Obviously,
`3 there are many, many other topics that are
`4 tangential. And there are many, many other topics
`5 that require a fairly deep understanding in order to
`6 be successful in this research. So, obviously,
`7 they're not the only things that I was involved
`8 with.
`Q. Okay. If you can turn to the body of your
`9
`10 declaration, and please turn to paragraph 10. I
`11 believe it's on pages 4 and 5.
`12 A. Oh, paragraph 10. Okay, I have that.
`Q. Okay. The second-to-the-last sentence of
`13
`14 that paragraph says, quote, "I am the inventor on
`15 United States patents that relate to the design of
`16 integrated circuits."
`How many patents did you obtain as an
`17
`18 inventor?
`19 A. Two.
`Q. Do you recall the numbers of those
`20
`21 patents?
`22 A. I suspect you'd probably find them in my
`23 vitae. Would you like me to find that for you?
`Q. If you could point that out, I would very
`24
`25 much appreciate it. Thank you.
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`Patent Owner ETRI Ex. 2006
`IPR2013-00635
`Dell, HP & NetApp v.
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