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`DEPOSITION OF HENRY HOUH, Ph.D. = 06/24/2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`
`Petitioneru
`
`vs.
`
`EVOLUTIONARY INTELLIGENCE,
`LLC,
`
`Patent Owner.
`______________________________ !
`
`Case IPR2014=
`00086
`Patent No.
`7,010,536
`
`VIDEOTAPED DEPOSITION OF
`
`HENRY HOUH, Ph.D.
`
`Tuesday, June 24, 2014
`
`REPORTED BY:
`
`CAROL H. KUSINITZ, RPR
`
`NOGARA REPORTING SERVICE
`5 Third Street, Suite 415
`San Francisco, CA
`94103
`(415) 398=1889
`
`<< NOGARA REPORTING SERVICE >>
`
`1
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 1
`
`
`
`2
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`DEPOSITION OF HENRY HOUH, Ph.D. = 06/24/2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`
`Petitioneru
`
`vs.
`
`EVOLUTIONARY INTELLIGENCE,
`LLC,
`
`Patent Owner.
`______________________________ !
`
`Case IPR2014=
`00086
`Patent No.
`7,010,536
`
`VIDEOTAPED DEPOSITION OF
`
`HENRY HOUH, Ph.D.
`
`Tuesday, June 24, 2014
`
`REPORTED BY:
`
`CAROL H. KUSINITZ, RPR
`
`NOGARA REPORTING SERVICE
`5 Third Street, Suite 415
`San Francisco, CA
`94103
`(415) 398=1889
`
`<< NOGARA REPORTING SERVICE >>
`
`1
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 1
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`I N D E X
`
`WITNESS
`
`DIRECT CROSS
`
`REDIRECT RECROSS
`
`HENRY HOUH, Ph.D.
`
`BY MR. PATEK
`
`7
`
`AFTERNOON SESSION:
`
`Page 89
`
`E X H I B I T S
`
`DESCRIPTION
`
`PAGE
`
`NO.
`
`A
`
`B
`
`1001
`
`1003
`
`Petition for Inter Partes Review
`
`Decision, Institution of Inter
`Partes Review
`
`United States Patent No. 7,010,536
`B1
`
`Declaration of Henry Houh Regarding
`U.S. Patent No. 7,010,536
`
`17
`
`18
`
`12
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`18
`
`38
`
`1006
`
`United States Patent No. 5,836,529
`
`* * * *
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`<< NOGARA REPORTING SERVICE >>
`
`2
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 2
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`BE IT REMEMBERED THAT, pursuant to Notice of Taking
`
`Deposition and on Tuesday, June 24, 2014, commencing
`
`at the hour of 9~04 a.m. thereof, at the Law Offices
`
`of Sidley Austin LLP, 60 State Street, Boston, MA
`
`02109, before me, Carol H. Kusinitz, Registered
`
`Professional Reporter, personally appeared.
`
`HENRY HOUH, Ph.D.,
`
`called as a witness by the Patent Owner Evolutionary
`
`Intelligence, LLC, having been by me first duly
`
`sworn, was examined and testified as herinafter set
`
`forth.
`
`---oOo---
`
`APPEARANCES OF COUNSEL
`
`FOR APPLE INC.
`
`SIDLEY AUSTIN LLP
`
`One South Dearborn
`
`Chicago, IL 60603,
`
`BY~ DOUGLAS I. LEWIS, ESQ.
`
`312.853.4169
`
`dilewis@sidley.com - and -
`
`(Continued on Page 4)
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`<< NOGARA REPORTING SERVICE >>
`
`3
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 3
`
`
`
`DEPOSITION OF HENRY HOUHu Ph.D. ~ 06/24/2014
`
`FOR APPLE INC.
`
`(Continued)
`
`SIDLEY AUSTIN LLP
`
`1501 K Streetu N.W.
`
`Washington, DC
`
`20005
`
`BY:
`
`THOMAS A. BROUGHANu IIIu ESQ.
`
`202.736.8314
`
`tbroughan@sidley.com.
`
`FOR EVOLUTIONARY INTELLIGENCEu
`
`INC.
`
`GUTRIDE SAFIER LLP
`
`835 Douglass Street.
`
`San Francisco, CA
`
`94114
`
`BY: ANTHONY J. PATEK, ESQ.
`
`MARIE MCCRARY, ESQ.
`
`425.639.9090
`
`anthony@gutridesafier.comu
`
`marie@gutridesafier.com
`
`(Continued on Page 5)
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`<< NOGARA REPORTING SERVICE >>
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`4
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 4
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`FOR TWITTER, INC., and YELP,
`
`INC.
`
`KILPATRICK TOWNSEND & STOCKTON LLP
`
`Two Embarcadero Center
`
`San Francisco, CA
`
`94111,
`
`BY~ ROBERT TADLOCK, ESQ.
`
`415.273.7585
`
`rtadlock@kilpatricktownsend.com
`
`Also Present~ Corey Shuff, Videographer
`
`National Video Reporters
`
`7 Cedar Drive
`
`Woburn, MA 01801
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`<< NOGARA REPORTING SERVICE >>
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`5
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 5
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`P R 0 C E E D I N G S
`
`THE VIDEOGRAPHER: We are now recording and
`
`on the record. My name is Corey Shuff.
`
`I'm a Legal
`
`Video Specialist on behalf of Nogara Reporting
`
`Services.
`
`Today is June 24th, 2014, and the time is
`
`9:04 a.m. This is the deposition of Henry Houh in
`
`the matter of Apple Inc. versus Evolutionary
`
`Intelligence, LLC, in the United States Patent and
`
`Trademark Office, Case IPR2014~00086. This
`
`deposition is being taken at 60 State Street in
`
`Boston, Massachusetts, on behalf of Evolutionary
`
`Intelligence, LLC. The court reporter is Carol H.
`
`Kusinitz of Doris 0. Wong Associates 1 Incorporated.
`
`Counsel will state their appearances, and
`
`the court reporter will administer the oath.
`
`MR. PATEK: This is Anthony Patek,
`
`appearing on behalf of Evolutionary Intelligence.
`
`MR. LEWIS: Douglas Lewis for Apple.
`
`MR. TADLOCK:
`
`I'm Robert Tadlock for Yelp
`
`and Twitter, who have filed a Petition which is No.
`
`IPR2014~00821, and who have filed a motion to join
`
`this proceeding.
`
`MR. BROUGHAN: Also in the room is Thomas
`
`Broughan of Sidley for Apple.
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`<< NOGARA REPORTING SERVICE >>
`
`6
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 6
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`HENRY HOUH, Ph.D.
`
`a witness called for examination by counsel for the
`
`Patent Owner, having been satisfactorily identified
`
`by the production of his driver's license and being
`
`first duly sworn by the Notary Public, was examined
`
`and testified as follows:
`
`CROSS EXAMINATION
`
`BY MR. PATEK:
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Good morning, Dr. Houh.
`
`Good morning.
`
`Did I pronounce your name correctly?
`
`Yes.
`
`I'm just going to start off explaining
`
`a
`
`little bit about what we're going to do today.
`
`Probably some of this has already been explained to
`
`you by your attorney.
`
`You understand you are under oath.
`
`I'm
`
`going to be asking you a series of questions.
`
`Just
`
`please try to answer them to the best of your
`
`ability. Because you are under oath, you are under
`
`potential penalty of perjury if you make false
`
`testimony.
`
`If at any point during the deposition you
`
`need a break, feel free to let us know. We're happy
`
`to let you free to get a little break. Likewise, if
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`<< NOGARA REPORTING SERVICE >>
`
`7
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 7
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`I ever ask you a question and you feel that you need
`
`some clarification, feel free to ask for
`
`clarification, and I will do the best that I can.
`
`Okay?
`
`A.
`
`Q.
`
`Yes. Thank you.
`
`All right. So, Dr. Houh, did you prepare
`
`for your deposition this morning?
`
`A.
`
`Q.
`
`Yes,
`
`I did.
`
`Okay. And approximately how many hours did
`
`you spend preparing for the deposition this morning?
`
`A.
`
`Q.
`
`Maybe 15. 15, 20 hours maybe.
`
`Okay. Were there any specific documents
`
`that you reviewed as part of your preparation for
`
`this deposition?
`
`Yes, there were.
`
`Can you please identify those documents for
`
`A.
`
`Q.
`
`me.
`
`A.
`
`I reviewed my report.
`
`I reviewed the
`
`Evolutionary Intelligence response ~~ I'm sorry,
`
`it's a Declaration, as I understand it, not a
`
`report.
`
`I reviewed the Institution Decision.
`
`reviewed the patent~in~suit, the '536 patent.
`
`I
`
`I
`
`reviewed the Gibbs patent.
`
`I took a quick scan
`
`through some of the infringement contentions.
`
`I
`
`can't think of anything else right now.
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`<< NOGARA REPORTING SERVICE >>
`
`8
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 8
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`Q.
`
`Did you look at any of the decisions that
`
`were issued in the other Petitions for Inter Partes
`
`Review
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No.
`
`~~ against the '536 patent?
`
`No.
`
`And you said you had reviewed the Decision
`
`that was issued in this particular case, correct?
`
`A.
`
`Q.
`
`Yes, that's correct.
`
`Okay. And did you review the claim
`
`construction positions that were issued by the PTAB
`
`as part of that Decision?
`
`A.
`
`Q.
`
`Yes, I did.
`
`Okay.
`
`In looking those over, did you
`
`notice any differences between the constructions
`
`that they adopted and the ones that you had used in
`
`writing your Declaration?
`
`A.
`
`I believe there were some slight ~~ they
`
`weren't necessarily all literally the same, but
`
`there were some slight word variations, I believe.
`
`Q.
`
`Okay. Are there any particular differences
`
`in the claim construction between your original
`
`Declaration and the Decision that you can remember?
`
`A.
`
`I believe I might have used ~~ proposed a
`
`construction that contained the word "contains," and
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`<< NOGARA REPORTING SERVICE >>
`
`9
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 9
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`the decision, I believe, used -- substituted a word
`
`"encapsulates" or "encapsulated," but I believe it
`
`provided a meaning in the Institution Decision.
`
`Q.
`
`Okay. Any other differences that you can
`
`remember?
`
`A.
`
`I think there was maybe some other slight
`
`differences, but I can't recall the exact nature.
`
`Q.
`
`Okay. Do you have -- I'm sorry. Do you
`
`know whether or not any of the opinions that you
`
`expressed in your Declaration would change based on
`
`the differences between the constructions adopted by
`
`the PTAB and the constructions that were proposed in
`
`your original Declaration?
`
`A.
`
`Based on what was adopted by the PTAB, it
`
`didn't change my opinions.
`
`Q.
`
`Okay.
`
`I'm curious, when you were drafting
`
`your Declaration, was there any prior art that you
`
`looked at that did not end up getting included in
`
`the Declaration in this case or in any of the other
`
`Petitions that were filed on behalf of Apple?
`
`MR. LEWIS: Outside the scope of the
`
`direct.
`
`It's also irrelevant.
`
`A.
`
`I don't know what was filed by the other
`
`Petitioners, so I can't address that specific
`
`question directly.
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`<< NOGARA REPORTING SERVICE >>
`
`10
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 10
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`Q.
`
`Okay. But just limiting it to Petitions
`
`that were filed by Apple, was there any prior art
`
`that you looked at that was not in a petition that
`
`was filed by Apple?
`
`MR. LEWIS: Outside the scope of the
`
`direct. Object to relevance as well.
`
`A.
`
`I looked at a number of prior art
`
`references.
`
`So there were probably prior art
`
`references I looked at that were not written in this
`
`report.
`
`Q.
`
`Can you remember what those references
`
`were?
`
`MR. LEWIS:
`
`I'm going to object on
`
`privilege grounds and instruct the witness not to
`
`answer.
`
`A.
`
`Urn ~~
`
`MR. LEWIS:
`
`I instruct you not to answer.
`
`MR. PATEK:
`
`So is it your position that
`
`your communications with your expert witness are
`
`privileged?
`
`MR. LEWIS: Yes.
`
`MR. PATEK: Okay. I'm just going to go on
`
`the record saying that's not my understanding, but
`
`no point in pushing it here.
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`<< NOGARA REPORTING SERVICE >>
`
`11
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 11
`
`
`
`DEPOSITION OF HENRY HOUHv Ph.D. ~ 06/24/2014
`
`(Document marked as Exhibit 1001
`
`for identification)
`
`Q.
`
`At this point I'm going to hand you what's
`
`marked Exhibit 1001, and do you recognize that
`
`document?
`
`A.
`
`Yes. This looks like a copy of the '536
`
`patent.
`
`Q.
`
`Okay. And this is the patent that's the
`
`subject of this Inter Partes Review, correct?
`
`A.
`
`Q.
`
`Yes.
`
`Can you go ahead and flip to the back where
`
`the claims are listed.
`
`A.
`
`Okay.
`
`I'm there.
`
`Q. All right. And so I would just like to
`
`direct you to Claim 2.
`
`A.
`
`Q.
`
`Okay.
`
`All right. Sirv are you familiar with the
`
`term "preamble"?
`
`A.
`
`Q.
`
`Yes.
`
`So you understand what I'm talking about
`
`when I refer to the preamble of the claim, yes?
`
`A.
`
`Q.
`
`Yes.
`
`Okay.
`
`So do you see in the preamble where
`
`it has the phrase, "the apparatus including a
`
`plurality of containers"?
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`<< NOGARA REPORTING SERVICE >>
`
`12
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 12
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`A.
`
`Q.
`
`Yes, I see that.
`
`Okay. And can you just explain to me what
`
`your understanding is of what that phrase refers to.
`
`A.
`
`That's describing the apparatus that
`
`includes a plurality of containers, where plurality
`
`is, I believe, two or more, as one would commonly
`
`understand that word.
`
`Q.
`
`Okay. And do you see, then, the following
`
`phrase, "each container being a logically defined
`
`data enclosure and comprising"?
`
`A.
`
`Q.
`
`Yes.
`
`Okay. And do you have an understanding as
`
`to what the word "comprising" means?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`And what is your understanding?
`
`My understanding is that it means that that
`
`would consist of the elements listed, but it could
`
`include more than that.
`
`Q.
`
`And do you have any understanding of what
`
`the phrase "each container being a logically defined
`
`data enclosure and comprising" modifies; that is,
`
`which part of the prior part of the preamble does
`
`that phrase modify?
`
`A. Well, the use of "container" previously is
`
`what I would read that, and I believe one of
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`13
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 13
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`ordinary skill in the art would see that as well.
`
`Q.
`
`Okay. And so with respect to the word
`
`ncomprising," what is your understanding of what
`
`each container must comprise?
`
`A.
`
`There are some elements that are listed
`
`here in Claim 2, and my understanding is that, with
`
`respect to the relevant items, that these all must
`
`be ~~ the invention declares that those items listed
`
`are what each container comprises.
`
`Q.
`
`Okay.
`
`So I just want to make sure that
`
`we're all on the same page. So then it's your
`
`understanding that each container that is alleged to
`
`be part of the plurality of containers must contain
`
`every one of the limitations that is listed after
`
`''comprising"?
`
`A.
`
`Yes, and I think there are some
`
`sub~elements as well. But the elements listed must
`
`be -~ are what the invention is for Claim 2.
`
`Q.
`
`A.
`
`Q.
`
`Okay.
`
`What is claimed for Claim 2.
`
`All right. But ~~ so I guess what I'm
`
`trying to get at is, every container that you're
`
`asserting for the purposes of your allegation that
`
`the '536 patent is anticipated by Gibbs must contain
`
`every single one of the limitations that's in that
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`14
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 14
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`list, correct?
`
`A.
`
`Yes.
`
`So it says that 0 each container,n of
`
`the plurality of containers, 0 being a logically
`
`defined data enclosure and comprising,n and then
`
`these items listed, are what the invention claimed
`
`in Claim 2 comprise.
`
`Q.
`
`Okay.
`
`So if you looked at something that
`
`was a, quote-unquote, container, and it only had
`
`half of the limitations that were in that list, is
`
`it your understanding -- I'm sorry, or do you have
`
`an understanding as to whether or not that
`
`particular container would establish anticipation of
`
`the '536 patent by Gibbs?
`
`A. Well, as long as there's at least -- as
`
`long as there's at least a plurality of containers,
`
`and that each container being a logically defined
`
`data enclosure that comprises these elements, if at
`
`least that's met, then it would be anticipating -(cid:173)
`
`an anticipating reference if I'm looking for that in
`
`the prior art.
`
`Q.
`
`Okay.
`
`So let me phrase it a little bit
`
`differently. Let's assume for the moment that
`
`you're looking at two containers, and one of them
`
`had three of the limitations that were listed here,
`
`and the other container had a different three
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`15
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 15
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`limitations.
`
`Is it your understanding that that
`
`would establish anticipation?
`
`A.
`
`Sorry. Could you tell me what was in those
`
`two different containers again, please.
`
`Q. Well, just if you had one container that
`
`only had some of the elements listed, and then you
`
`had a second container that also only had some of
`
`the elements listed, but perhaps between the two of
`
`them they had all of the elements that were listed.
`
`MR. LEWIS~ Objection. Form.
`
`A.
`
`My understanding is I would look for a
`
`container, a plurality of containers, and show a
`
`plurality of containers, each container listing all
`
`the elements, and that would be an anticipating
`
`reference.
`
`Q.
`
`Okay. Sir, what is your understanding of
`
`the phrase "logically defined data enclosure"?
`
`A.
`
`So I believe someone of ordinary skill in
`
`the art would understand that there would be some
`
`data.
`
`It's a defined
`
`it's logically defined and
`
`that it has data.
`
`Q.
`
`A.
`
`Q.
`
`Okay.
`
`At least.
`
`I mean ...
`
`So I guess what I'm-- can you explain the
`
`phrase "logically defined data" without using the
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`16
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 16
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`phrase "logically defined data" as part of the
`
`definition?
`
`MR. LEWIS: Objection. Form.
`
`A.
`
`So there might be some data somewhere, but
`
`one would have to have some -- it's just a bunch of
`
`bits somewhere.
`
`I wouldn't say-- it's just a bunch
`
`of data. But if one has a structure that one
`
`applies to it and can parse out different elements
`
`of the data that are different parts of a defined
`
`structure, I would say that's an example.
`
`Q.
`
`Okay. Thank you.
`
`MR. PATEK:
`
`I'll give that to you. This
`
`has a docket number within the case, but let's mark
`
`it Exhibit A just for the purposes of keeping track.
`
`MR. LEWIS:
`
`I'm sorry.
`
`I didn't hear.
`
`MR. PATEK:
`
`I'm having her mark it Exhibit
`
`A.
`
`I'm assuming-- I don't remember.
`
`It's Paper
`
`No. 1 from within the docket.
`
`It's just a Petition
`
`for Inter Partes Review.
`
`MR. LEWIS: Fair enough.
`
`I just didn't
`
`hear what you said.
`
`(Document marked as
`
`Exhibit A
`
`MR. PATEK: This is just
`
`for identification)
`a copy of -- I'm
`Paper No. 8 from
`
`now handing the witness a copy of
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`17
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 17
`
`
`
`DEPOSITION OF HENRY HOUH 9 Ph.D. ~ 06/24/2014
`
`the Inter Partes Review. This is the Decision
`
`instituting the Inter Partes Review. Maybe we can
`
`just mark that Exhibit B.
`
`MR. LEWIS: This makes me optimistic you're
`
`not going to have more than 26 of these.
`
`MR. PATEK: No.
`
`(Document marked as Exhibit B
`
`for identification)
`
`MR. PATEK: And this last one is previously
`
`marked as Exhibit 1003.
`
`It's just a copy of Dr.
`
`Houh's Declaration.
`
`(Document marked as Exhibit 1003
`
`for identification)
`
`BY MR. PATEK:
`
`Q.
`
`If I could direct you to Page 8 of the
`
`Decision 9 which should be the discussion of the
`
`construction of the term "container."
`
`A.
`
`Q.
`
`Yes, I'm here.
`
`And then you might ~~ can you also please
`
`open your Declaration to its discussion of the word
`
`"container," which should begin at Page 20.
`
`A.
`
`Q.
`
`Okay 9 I'm here as well.
`
`So, directing you to Paragraph 55 of your
`
`Declaration, do you see where it says, quoteu "I
`
`believe the broadest reasonable construction of
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`18
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 18
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`'container' therefore encompasses a logically
`
`defined data structure that contains a whole or
`
`partial digital element (e.g. text, graphic,
`
`photograph, audio, video, or other) or set of
`
`digital segments, or any system component or
`
`process, or other containers or sets of containers."
`
`A.
`
`Q.
`
`Yes, I see that.
`
`All right. And so this was your proposed
`
`construction of the word 0 container, 0 correct?
`
`A.
`
`Q.
`
`Yes.
`
`Okay.
`
`So now looking at the Decision at
`
`Page ~~ and it's actually on Page 9. There's a
`
`paragraph in the middle of the page which states,
`
`quote, "Accordingly, based on the proposed
`
`construction of 'container' by both Petitioner and
`
`Patent Owner, and for the purposes of this decision,
`
`we construe 'container' to mean, quote,
`
`'a logically
`
`defined data enclosure which encapsulates any
`
`element or digital segment (text, graphic,
`
`photograph, audio, video, or other), or set of
`
`digital elements, 10 and then close parentheses
`
`I'm sorry, end quote, not close parentheses.
`
`A.
`
`Q.
`
`Yes, I see that.
`
`Okay.
`
`So I'd like you to compare those two
`
`proposed constructions, and in particular, I would
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`19
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 19
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`like to direct you to the last phrase in your
`
`proposed construction, the phrase that is, quote,
`
`"or any system component or process, or other
`
`containers or sets of containers," end quote.
`
`A.
`
`I see that.
`
`Q. All right. And do you see that that was
`
`not included in the construction proposed by the
`
`Patent Trial and Appeal Board?
`
`A.
`
`I see those "or" phrases were not part of
`
`it, but the other parts of it, the digital elements
`
`remained.
`
`Q.
`
`Right 8 but what I'm saying is -- but the
`
`phrase "any system component or process, or other
`
`containers or sets of containers," that's not in the
`
`proposed construction from the PTAB, correct?
`
`MR. LEWIS~ Objection. Form.
`
`A.
`
`It's not in those quotes.
`
`It defines -(cid:173)
`
`it's not literally in the quotation of the PTAB's
`
`adoption of "container."
`
`Q.
`
`Is it your understanding that it's there in
`
`a nonliteral manner?
`
`MR. LEWIS~ Objection. Form.
`
`(Reviewing documents)
`
`I'm sorry, Dr. Houh, I've given you a few
`
`A.
`
`Q.
`
`minutes to look over the papers, but I still don't
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`20
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 20
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`have an answer.
`
`A.
`
`I'm trying -- I was just looking at the
`
`Court's decision.
`
`Q.
`
`The question is -- it's a yes-or-no
`
`question. Either you have an understanding or you
`
`don't.
`
`I mean, that's --you don't need to look at
`
`the Decision to know whether or not you have an
`
`understanding on the matter.
`
`So I'm just wondering, do you have an
`
`understanding one way or another as to whether or
`
`not the phrase "or any system component or process,
`
`or other containers or sets of containers," which
`
`was not adopted from your proposed construction, has
`
`been adopted by the PTAB in a nonliteral form?
`
`MR. LEWIS~ I'm going to object. Form.
`
`Argumentative.
`
`A. Well, what the PTAB said was that a
`
`container had to at least contain these items
`
`listed. And so, to the extent that anything else
`
`contained by the container contains the things that
`
`are required by the PTAB, which is encapsulating
`
`"any element or digital segment (text, graphic,
`
`photograph, audio, video, or other)," then to that
`
`extent at least it would encapsulate -- all it says
`
`is it has to contain those things, encapsulate these
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`21
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 21
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`things, in the Patent Board's decision.
`
`Q.
`
`So when you say "these things," you are
`
`referring to the actual items that are listed in the
`
`PTAB's proposed construction; to wit, "any element
`
`or digital segment ... or set of digital segments,"
`
`and I would include in there the list that's in the
`
`parentheses, but I'm just trying to make it a little
`
`easier to understand.
`
`MR. LEWIS: Objection to form.
`
`A.
`
`Yes, it has to include text, graphic,
`
`photograph, audio, video, or other.
`
`I mean, there
`
`may be other specific things that actually contain
`
`those things, and those would meet the Court's
`
`construction.
`
`Q.
`
`Okay. But to the extent that something was
`
`a system component without falling within the scope
`
`of one of the items that's actually listed in the
`
`PTAB's construction, is it your opinion that that
`
`would satisfy the PTAB's adopted construction of
`
`"container"?
`
`MR. LEWIS: Objection. Form.
`
`A.
`
`I think I heard a double negative in there.
`
`Could you ~~ or the sense of the question.
`
`I wasn't
`
`sure if it was -- could you repeat that, please.
`
`Q.
`
`So, to the extent that something is a
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`22
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 22
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`system component, as you put in your proposed
`
`construction in your Declaration, but does not fall
`
`within the scope of the items that were listed in
`
`the PTAB's proposed construction of "container,"
`
`specifically any element or digital segment,
`
`including text, graphic, photograph, audio, video or
`
`other, or set of digital elements, to the extent
`
`that something fell within the definition of "system
`
`component," without satisfying the definition of any
`
`of the PTAB's proposed terms, is it your
`
`understanding that that component or that thing
`
`would satisfy the definition or could satisfy the
`
`definition of a container?
`
`MR. LEWIS: Objection to form.
`
`A.
`
`Are you saying if the system component is
`
`one of these things or contains one of these things?
`
`Q.
`
`I'm saying the system component is not any
`
`of those things. Would the thing that had the
`
`system component be a container, based simply on the
`
`fact that it's a system component?
`
`MR. LEWIS: Objection to form.
`
`A. Well, as long as it met this definition, if
`
`it
`
`Q.
`
`I'm sorry, when you say "this definition,"
`
`which definition are you referring to?
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`23
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 23
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`A.
`
`Sorry.
`
`I'm referring to the Court's
`
`definition.
`
`If it had any element of digital
`
`segment, text, graphic, photograph, audio, video or
`
`other, whatever -- whatever has that contained
`
`within it and is a logically defined data enclosure
`
`which encapsulates those things, including a set of
`
`them, those things being any element or digital
`
`segment or set of digital segments, then my
`
`understanding is that Court's definition would
`
`capture that.
`
`Q.
`
`Okay.
`
`So is there anything that you
`
`remember having referred to in your Declaration
`
`strike that.
`
`Is there anything -~ sorry 8 strike
`
`that.
`
`Is there any disclosure in Gibbs that you
`
`asserted in your Declaration was evidence of
`
`anticipation of the '536 patent by Gibbs where that
`
`assertion depended on it being a system component
`
`that was not either a whole or partial -- I'm
`
`sorry ~- that was not an element or digital segment
`
`or set of digital elements?
`
`MR. LEWIS~ Objection to form.
`
`(Reviewing document)
`
`So, Dr. Houh, I see you're looking through
`
`A.
`
`Q.
`
`your Declaration.
`
`I take it there's nothing that
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`<< NOGARA REPORTING SERVICE >>
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 24
`
`
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`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`you remember off the top of your head that relied
`
`particularly on the "system component" part of your
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`proposed construction?
`
`A.
`
`I just ~~ I would like ~~ I don't
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`believe
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`I would just like to take a quick look.
`
`Thank you.
`
`Q.
`
`A.
`
`Sure.
`
`(Reviewing document)
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`So, no, I don't
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`believe I relied exclusively on only that element in
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`my definition. As I mentioned before, in reviewing
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`the Court's adopted constructions, it really didn't
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`change my opinions.
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`Q.
`
`Okay.
`
`So I take it it's also the case that
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`there is nothing that you can think of that
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`specifically relied on the word "process" in your
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`proposed construction?
`
`A. Well, there are cases where the word
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`"process" is explicitly called out in the claim
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`itself, the language of the claim itself.
`
`Q.
`
`A.
`
`The language of which claim? Claim 2?
`
`Claim 2. But in terms of relying on that
`
`particular part for the definition or the
`
`construction of "container," I don't believe I
`
`relied on anything that exclusively, to the
`
`exception of everything else listed, relied on that
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`<< NOGARA REPORTING SERVICE >>
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`25
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`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 25
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. ~ 06/24/2014
`
`in my opinion, which is why I don't believe it
`
`changed my opinions when the Court adopted this
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`construction.
`
`Q.
`
`Okay. So, prior to your engagement in this
`
`case as an expert, had you ever come across the term
`
`Hencapsulate" in relation to computer science?
`
`A.
`
`Q.
`
`Yes, I had.
`
`Okay. And what was your -- when you came
`
`across it, what did it mean to you? What was your
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`understanding of what "encapsulate" means within the
`
`field of computer science, prior to your engagement
`
`in this case?
`
`A.
`
`So, generally speaking, I came out of the
`
`world of networking, and so HencapsulateH is a
`
`commonly used term in the field of networking. And
`
`it generally means that -~ well, for example, when
`
`used in a network, a packet is maybe encapsulated by
`
`a higher layer protocol, in which case it contains
`
`data from the lower layer protocol.
`
`Q.
`
`Okay. And were there any other definitions
`
`that you associated with the word 0 encapsulate 0 that
`
`would have been specific to the field of computer
`
`science?
`
`A.
`
`I mean, in terms ~- I spent a lot of time
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`in the networking field, and so to me that's in the
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`<< NOGARA REPORTING SERVICE >>
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`26
`
`Apple v. Evolutionary Intelligence
`IPR2014-00086
`Petitioner Apple - Ex. 1008, p. 26
`
`
`
`DEPOSITION OF HENRY HOUH, Ph.D. - 06/24/2014
`
`networking field what I understood that to mean.
`
`Q.
`
`And I appreciate that. But I'm just
`
`askingv so if somebody was in the computer science
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`field, but perhaps not somebody who focused on
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`networking, would there have been any different
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`definitions of "encapsulate" that they might have
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`understood?
`
`MR. LEWIS~ Objection.
`
`
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