Kramer, Richard A.
`
`September 3, 2014
`
`IPR2014-00252
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NETFLIX,
`
`INC.,
`
`VS.
`
`OPENTV,
`
`INC.,
`
`Petitioner,
`
`IPR20l4-00252
`
`PATENT 8,107,786
`
`Patent Owner.
`
`
`
`Corllfled Copy
`
`DEPOSITION OF RICHARD A. KRAMER
`
`San Francisco, California
`
`Wednesday, September 3, 2014
`
`Reported by:
`
`SANDRA VANDER POL, CSR #3032
`
`CMR, CRR, CLR, RSA credentialed
`
`202-220-41 5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page'10f60
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`OPENTV EXHIBIT 2005
`
`NETFLIX, INC. v. OPENTV, INC.
`IPR2014~00252
`
`
`
`September 3, 2014
`
`IPR2014-00252
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NETFLIX,
`
`INC.,
`
`VS.
`
`OPENTV,
`
`INC.,
`
`Petitioner,
`
`IPR20l4-00252
`
`PATENT 8,107,786
`
`Patent Owner.
`
`
`
`Corllfled Copy
`
`DEPOSITION OF RICHARD A. KRAMER
`
`San Francisco, California
`
`Wednesday, September 3, 2014
`
`Reported by:
`
`SANDRA VANDER POL, CSR #3032
`
`CMR, CRR, CLR, RSA credentialed
`
`202-220-41 5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page'10f60
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`OPENTV EXHIBIT 2005
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`NETFLIX, INC. v. OPENTV, INC.
`IPR2014~00252
`
`
`
`Kramer, Richard A.
`
`September 3, 2014
`
`IPR2014-00252
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`2
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`Deposition of RICHARD A. KRAMER held at
`
`the offices of:
`
`DURIE TANGRI
`
`217 Leidesdorff Street
`
`San Francisco, California
`
`(415) 362—6666
`
`Pursuant to agreement, before SANDRA M.
`
`VANDER POL, CSR No. 3032, RMR, CRR, CLR, RSA
`
`Credentialed
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.corn
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`202-220-415 8
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`Page 2 of 60
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`
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`Kramer, Richard A.
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`September 3, 2014
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`IPR2014-00252
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`A P P E A R A N C E S
`
`ON BEHALF OF NETFLIX,
`
`INC.:
`
`CLEMENT S. ROBERTS, ESQUIRE
`
`DURIE TANGRI
`
`217 Leidesdorff Street
`
`San Francisco, California 94111
`
`(415) 362-6666
`
`croberts@durietangri.com
`
`SCOTT T.
`
`JARRATT, ESQUIRE
`
`HAYNES BOONE, LLP
`
`2505 N. Plano Road, Suite 4000
`
`Richardson, Texas 75082—4101
`
`(972) 739—8663
`
`scott.jarratt@haynesboone.com
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`202-220—4 1 5 8
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`Page 3 of 60
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`
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`Kramer, Richard A.
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`September 3, 2014
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`IPR2014-00252
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`A P P E A R A N C E S
`
`(Continued)
`
`ON BEHALF OF OPENTV,
`
`INC.:
`
`JOSHUA L. GOLDBERG, ESQUIRE
`
`ALYSSA J. HOLTSLANDER, ESQUIRE
`
`FINNEGAN, HENDERSON, FARABOW, GARRETT &
`
`James.medek@Kirkland.com
`
`DUNNER, LLP
`
`901 New York Avenue, NW
`
`Washington, DC 20001—4413
`
`(202) 408—4000
`
`joshua.goldberg@finnegan.com
`
`alyssa.holtslander@finnegan.com
`
`JAMES B. MEDEK, ESQUIRE
`
`KIRKLAND & ELLIS, LLP
`
`300 North LaSalle Street
`
`Chicago, Illinois 60654
`
`(312) 862—7336
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`202-220—4 1 5 8
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`Page 4 of 60
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`
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`Kramer, Richard A.
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`September 3, 2014
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`IPR2014-00252
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`EXAMINATION OF RICHARD A. KRAMER:
`
`C O N T E N T S
`
`CROSS-EXAMINATION BY MR. GOLDBERG
`
`REDIRECT EXAMINATION BY MR. ROBERTS
`
`——oOo——
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`WWW.hendersonlegalservices.com
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`202-220-415 8
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`
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`Kramer, Richard A.
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`September 3, 2014
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`IPR2014-00252
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`P R O C E E D I N G S
`
`Whereupon, RICHARD A. KRAMER was called
`
`for examination by counsel and, after having
`
`been duly sworn/affirmed, was examined and
`
`testified as follows:
`
`—--oOo-——
`
`CROSS-EXAMINATION
`
`BY MR. GOLDBERG:
`
`Q.
`
`Good morning again, Mr. Kramer.
`
`Good morning.
`
`
`
`Q.
`
`Could you please, once again, state your
`
`full name and address for the record.
`
`A.
`
`Richard Allen Kramer. My address is
`
`845 Sahalee Court Southeast, Salem, Oregon, 97306.
`
`Q.
`
`And do you understand that,
`
`like
`
`yesterday, you're under oath this morning?
`
`A.
`
`Q.
`
`I do.
`
`And is there anything that will prevent
`
`you from giving me full and truthful answers today?
`
`A.
`
`Q.
`
`Nothing.
`
`So no medication that would prevent you
`
`from giving me full and truthful answers today,
`
`right?
`
`A.
`
`No. Correct. Yes.
`
`Q.
`
`There is nothing that would prevent you?
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`202-220-4158
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`September 3, 2014
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`IPR2014-00252
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`The same as yesterday.
`
`Yes.
`
`Thank you.
`
`I agree with you.
`
`So like yesterday, if you don't understand
`
`any of my questions, please just ask me to clarify,
`
`okay?
`
`A.
`
`Q.
`
`Okay.
`
`Is it fair for me to assume that if I ask
`
`
`
`
`
`you a question and you answer it, you understood
`
`what I asked you?
`
`A.
`
`Q.
`
`Yes.
`
`Like yesterday, we will try to take breaks
`
`every 60 minutes or so. Before we take a break
`
`today,
`
`I would like you to complete your answer to
`
`any question that's pending;
`
`is that fair?
`
`A.
`
`Q.
`
`It's fair.
`
`And also please let me know if you need to
`
`take a break. Again,
`
`I just ask that you complete
`
`your answer to any question that's pending prior to
`
`the break, okay?
`
`A.
`
`Q.
`
`Okay.
`
`And during the break, you may not discuss
`
`the substance of your testimony with Netflix's
`
`counsel, okay?
`
`A.
`
`Okay.
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`Kramer, Richard A.
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`September 3, 2014
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`IPR2014-00252
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`8
`
`Q.
`
`So, Mr. Kramer,
`
`I am handing you a copy of
`
`what's been marked as Netflix Exhibit 1001. This
`
`is a copy of U.S. Patent No. 8,107,786, right?
`
`A.
`
`Q.
`
`Yes, it is.
`
`And I'm also going to hand you what's been
`
`marked as Netflix's Exhibit 1005.
`
`Can you please confirm that this is a
`
`complete copy of your declaration in this
`
`proceeding,
`
`the IPR related to the '786 Patent?
`
`A.
`
`Just glancing through it, it looks
`
`
`
`
`
`complete. Yes.
`
`Q.
`
`Thank you.
`
`So I'd like you to please look at Figure 6
`
`of the '786 Patent.
`
`A.
`
`Q.
`
`Okay.
`
`That Figure 6 illustrates an example
`
`embodiment of the invention, right?
`
`A.
`
`Now, I don't have the entire patent
`
`memorized, but if I may, may I look at ——
`
`Q.
`
`Oh, yes. And I point you to column 10,
`
`lines 11 to 13 may be helpful in this regard.
`
`A.
`
`Q.
`
`I'm sorry. What's that?
`
`Column 10,
`
`lines 11 to 13 may be helpful.
`
`And perhaps lines 10 to 13.
`
`I see that it's a flow chart that
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`IPR2014—00252
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`illustrates method 100.
`
`Q.
`
`So would you agree that Figure 6 is an
`
`example of embodiment in the specification?
`
`A.
`
`It doesn't say an embodiment.
`
`It says
`
`that it's a flow chart illustrating a method.
`
`Q.
`
`Continuing at column 10,
`
`line 10, doesn't
`
`it say Figure 6 is a flow chart illustrating a
`
`method according to an example of embodiment?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes, it does say that.
`
`Okay.
`
`Thank you. All right.
`
`Again, sorry.
`
`I -- it's been --
`
`No problem.
`
`
`
`I will ask you to look at Claim 4 for a
`
`minute in the '786 Patents.
`
`A.
`
`Q.
`
`Okay.
`
`I'm on page 39 of 39.
`
`And comparing Claim 4
`
`to what's shown in
`
`Figure 6,
`
`is it your opinion that Claim 4 would
`
`cover the embodiment shown in Figure 6?
`
`A.
`
`Excuse me. Claim 4 is quite lengthy, so I
`
`am going through it.
`
`Well, I see that there are —- it shows in
`
`column 10 that it's an example of embodiment.
`
`It
`
`doesn't map it directly to Claim 4.
`
`I see
`
`differences. When I read Claim 4, there's not
`
`necessarily given any particular order.
`
`It says a
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`September 3, 2014
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`IPR2014-00252
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`10
`
`method, and it lists a series of steps.
`
`It doesn't
`
`say what order those steps are in.
`
`I don't see -- perhaps I'm missing trick
`
`mode and some of the other mentions in Figure 6.
`
`It may be an example.
`
`I'm not sure it maps
`
`directly to Figure 4 —— or, I'm sorry, Claim 4.
`
`Q.
`
`Let me ask the question a little bit
`
`differently.
`
`
`
`
`
`In your opinion, are all of the steps in
`
`Claim 4 illustrated in Figure 6?
`
`A.
`
`I don't see any mention of non-derivative
`
`content.
`
`So I don't know how they are related.
`
`Q.
`
`Okay. Moving on.
`
`I am going to ask you
`
`now to compare Claim 7 to that Figure 6. And I
`
`will ask the same —— a similar question.
`
`In your opinion, are all the steps in
`
`Claim 7 illustrated in Figure 6?
`
`A.
`
`I would provide the same answer as I
`
`claim -- provided for Claim 4.
`
`The only difference
`
`is the preamble, which require a legal conclusion.
`
`I don't know if that's limiting or not. But to the
`
`extent that it is, I see that it just says,
`
`"A
`
`tangible machine readable medium storing a set of
`
`instructions that, when executed by a machine,
`
`cause the machine to."
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`IPR2014-00252
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`11
`
`And so that's a different preamble. But,
`
`other than that, it looks like the remainder of
`
`that claim is the same or similar to Claim 4.
`
`Q.
`
`So just to clarify, because of the way you
`
`referred to your previous answer.
`
`Your opinion is that aside from the
`
`preamble of Claim 7 and that you don't see any
`
`mention under non-derivative content in Figure 6,
`
`that all the steps of Claim 7 are shown in
`
`Figure 6?
`
`A.
`
`I didn't say that all the steps are shown.
`
`I think I explicitly said I don't know how they are
`
`related.
`
`Q.
`
`When you say you "don't know how they are
`
`related," are you referring to how the steps are
`
`related to each other or how the steps are related
`
`to the figure?
`
`A.
`
`Q.
`
`The entire claim related to the figure.
`
`Okay. Let's look at your declaration,
`
`Mr. Kramer.
`
`
`
`A.
`
`Q.
`
`Okay.
`
`Could you please turn —— just flip through
`
`pages 20 to 26 of your declaration to refamiliarize
`
`yourself with what's on those pages.
`
`MR. ROBERTS: Did you say 20 to 26?
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`September 3, 2014
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`IPR2014-00252
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`MR. GOLDBERG:
`
`20 to 26.
`
`THE WITNESS:
`
`20 to 26?
`
`MR. GOLDBERG: Yes.
`
`THE WITNESS:
`
`Thank you.
`
`(Witness reviewing document.)
`
`THE WITNESS: Okay.
`
`Thank you.
`
`BY MR. GOLDBERG:
`
`Q.
`
`So you map Claim l's recitation of
`
`associating the primary content to the secondary
`
`information to Plotnick on these pages, correct?
`
`A.
`
`Q.
`
`I -- yeah.
`
`I map it to Claim 1.
`
`So,
`
`in particular,
`
`looking at the first
`
`sentence on page 21 that begins with, "For
`
`example," is it your opinion that Plotnick's
`
`alternative advertisement, Plotnick's ad metadata
`
`and Plotnick's information signals communicated to
`
`the PVR are the claim's secondary information in
`
`Claim 1?
`
`
`
`A.
`
`I'm so sorry. Did you say page 21 in "for
`
`example" on the ——
`
`Yes.
`
`The very first line on the page.
`
`Oh, okay. Buried in —— got it.
`
`In the
`
`Would you like me to repeat the question?
`
`Yes, please.
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`IPR2014-00252
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`13
`
`Q.
`
`Okay.
`
`So looking at that first sentence,
`
`is it your opinion that Plotnick's alternative
`
`advertisement, Plotnick's ad metadata and
`
`Plotnick's information signals communicated to the
`
`PVR are the claim's secondary information in
`
`Claim 1?
`
`A.
`
`I state, "For example, Plotnick discloses
`
`associating each of the following to the primary
`
`content:
`
`an alternative advertisement, metadata
`
`used to access secondary content, and information
`
`signals communicated to the PVR used to generate
`
`secondary content."
`
`Q. Would it be fair to say you have three
`
`mappings to Plotnick for the claim's secondary
`
`information, one for the alternative advertisement,
`
`one for the metadata, and one for the information
`
`signals?
`
`
`
`A.
`
`There are three.
`
`They are with respects
`
`to the secondary content.
`
`The secondary
`
`information being metadata and secondary
`
`information being -- for instance, with respects to
`
`information signals, there's a description that ——
`
`that's a high-level summary, and there's a
`
`description for each of those.
`
`Q.
`
`Okay.
`
`So just -- you mentioned the
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`September 3, 2014
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`IPR2014—00252
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`secondary information being metadata and the
`
`secondary information being,
`
`for example, with
`
`respect to information signals.
`
`You also look at the secondary information
`
`as being alternative advertisement, don't you?
`
`A. With respects to alternative
`
`advertisement,
`
`there is a description of that.
`
`It's on page 21.
`
`Q.
`
`Thank you.
`
`I will ask you to please turn to pages 44
`
`to 49 of your declaration. And if you could just
`
`please flip through those pages to refamiliarize
`
`
`
`yourself with them.
`
`A.
`
`Okay.
`
`Thank you.
`
`(Witness reviewing document.)
`
`Okay.
`
`Thank you.
`
`Q.
`
`On pages 44 to 49 of your declaration, you
`
`map Claim 4's recitation of associating the primary
`
`content to the secondary information to Plotnick,
`
`correct?
`
`A.
`
`For pages 44 through 49, I -- I map the
`
`claim element, associate the primary content to
`
`secondary information.
`
`Q.
`
`And calling your attention to the last
`
`paragraph on page 44.
`
`Is it —— is it your opinion
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`September 3, 2014
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`IPR201'4-00252
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`that the secondary information in the claim
`
`corresponds to alternative advertisement, ad
`
`metadata and information signals in Plotnick?
`
`A.
`
`The same answer as before.
`
`I can -- we
`
`can read that back.
`
`It maps to what I disclose here on these
`
`pages, is a mapping of secondary information which
`
`relates to -— on page 45, with respects to an
`
`alternative advertisement, with respects to
`
`metadata, and on page 47 with respects to
`
`information signals.
`
`Q.
`
`Thank you.
`
`
`
`Now I'll turn to pages 72 to 77 of your
`
`declaration. And if you could, again,
`
`just take a
`
`minute to flip through and refamiliarize yourself
`
`with those pages.
`
`(Witness reviewing document.)
`
`Okay.
`
`I have concluded.
`
`Thank you.
`
`On pages 72 to 77 of your declaration, you
`
`A.
`
`Q.
`
`map Claim 7's recitation of associating the primary
`
`content to the secondary information to Plotnick,
`
`correct?
`
`A.
`
`On pages 72 to 78, I map the claim
`
`element, associate the primary content to the
`
`secondary information.
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`September 3, 2014
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`IPR2014-00252
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`On page 73 I cite with respects to
`
`alternative —- excuse me. Let me restate that ——
`
`with respect to an alternative advertisement; on
`
`page 73 with respects to metadata; and on page 75
`
`with respect to information signals.
`
`Q.
`
`Thank you.
`
`So for Claims 1,
`
`4 and 7, you are mapping
`
`the secondary information to Plotnick's alternative
`
`advertisement, ad metadata and information signals,
`
`correct?
`
`A.
`
`I disclose that claim element —— the claim
`
`element associated with primary content to
`
`secondary information within those three elements:
`
`With respects to alternative advertisement; with
`
`respects to metadata; and with respects to
`
`information signals.
`
`Q.
`
`Thank you.
`
`"With respect to the alternative
`
`So let's spend a little time discussing
`
`the alternative advertisement scenario in Plotnick.
`
`A.
`
`Q.
`
`Okay.
`
`Please turn back to page 28 of your
`
`declaration.
`
`A.
`
`Q.
`
`that,
`
`Okay.
`
`I'm there.
`
`And do you see on page 28 where you say
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`IPR2014-00252
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`advertisement of the secondary information,
`
`Plotnick teaches that its PVR utilizes the
`
`alternative advertisement when it renders the
`
`alternative advertisement"?
`
`A.
`
`Q.
`
`I do see that.
`
`In this mapping you contend that
`
`Plotnick's alternative advertisement is both the
`
`claim's secondary information and the claim's
`
`secondary non—derivative content, correct?
`
`A.
`
`Q.
`
`Repeat the question, please.
`
`In this mapping you contend that
`
`Plotnick's alternative advertisement is both the
`
`
`
`
`
`claim's secondary information and the claim's
`
`secondary non-derivative content, correct?
`
`A.
`
`I'm not sure what you mean by "this
`
`mapping."
`
`With respects to the alternative
`
`advertisement,
`
`the secondary information, Plotnick
`
`teaches that its PVR utilizes the alternative
`
`advertisement when it renders alternative -- when
`
`it renders the alternative advertisement.
`
`Q.
`
`Is it your opinion that the alternative
`
`advertisement
`
`in Plotnick corresponds to the
`
`secondary information in Claim 1?
`
`A.
`
`It's my opinion that the alternative
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`18
`
`advertisement is a form of secondary information,
`
`as defined on page 27,
`
`to the extent of secondary
`
`content is the first example.
`
`Q.
`
`Still on page 21 of your declaration, do
`
`you see at the bottom of page 21 and continuing on
`
`to page 22 that you state that, "Plotnick teaches
`
`'associating the primary content to secondary
`
`information' when it teaches associating the
`
`default advertisement with ad metadata used to
`
`access the alternative advertisement"?
`
`A.
`
`I'm uncertain --
`
`MR. ROBERTS:
`
`I'm sorry. Where is that
`
`
`
`MR. GOLDBERG:
`
`The very bottom of page 21,
`
`going on to page 22.
`
`THE WITNESS:
`
`I see on the bottom of
`
`page 21 where I state,
`
`"With respect to metadata,
`
`Plotnick teaches 'associating the primary content
`
`to secondary information' when it teaches
`
`associating the default advertisement with metadata
`
`used to access the alternative advertisement." And
`
`I cite a series of examples and citations.
`
`BY MR . GOLDBERG:
`
`Q.
`
`The series of examples and citations
`
`you‘re referring to, are those on page 22,
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`correct?
`
`A.
`
`That discussion continues through page 23.
`
`So, no, it includes also -- it continues on,
`
`includes 164 and 167. And then a summary on
`
`page 23.
`
`Q.
`
`But it doesn't —— it does include
`
`paragraphs 159 and 160 of Plotnick, correct?
`
`A.
`
`It does include one -— the citations
`
`provided include 159 and 160 but are not limited
`
`only to 159 and 160.
`
`Q.
`
`Thank you.
`
`So, Mr. Kramer,
`
`I'm handing you what has
`
`been marked as Netflix's Exhibit 1003.
`
`25 specifically paragraphs 159 and 160 of Plotnick,
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Thank you.
`
`This is a copy of Plotnick, correct?
`
`, It appears to be, yes.
`
`Turn to paragraph 159 of Plotnick.
`
`Okay.
`
`I believe I'm there.
`
`Q.
`
`Paragraph 159 describes Figure 11 of
`
`Plotnick, correct?
`
`A.
`
`It —— yes, it illustrates —- Figure 11
`
`illustrates an exemplary data flow of an ad
`
`management system designed for delivery and target
`
`advertising. That's the description of this
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`20
`
`paragraph, or the start of this paragraph.
`
`Q.
`
`And paragraph 159 further states that the
`
`ad management system of Plotnick includes different
`
`head-end servers that are used to do a variety of
`
`things,
`
`like deliver content and metadata to the
`
`set—top boxes, correct?
`
`A.
`
`Q.
`
`A.
`
`May I read it?
`
`Yes.
`
`There is a sentence in 159 that states,
`
`
`
`"This system includes different head-end servers
`
`that are used to segment the subscriber, deliver
`
`content and metadata to the set-top boxes, collect
`
`ad insertion results, and collect privacy protected
`
`summary data about the subscriber's viewing
`
`habits."
`
`Q.
`
`Let's turn to Figure 11 of Plotnick.
`
`Okay.
`
`I'm there.
`
`Do you see STB data server 1112?
`
`I do.
`
`And do you see ad server 716?
`
`I do.
`
`And do you see VoD server 1172?
`
`I do.
`
`Q.
`
`Let's go back to paragraph 160 of
`
`Plotnick.
`
`Toward the end of paragraph 160,
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`21
`
`Plotnick states,
`
`"The formatted program metadata
`
`1124 is sent to the STB data server 1112, which
`
`transmits it to the appropriate set—top boxes,"
`
`right?
`
`A.
`
`The last sentence of 160 reads, "The
`
`formatted program metadata 124 is sent to the
`
`set—top box —- STB," excuse me -- "data server
`
`1112, which transmits it to the appropriate set—top
`
`boxes."
`
`
`
`Q.
`
`So STB data server 1112 transmits program
`
`data to set-top boxes, right?
`
`MR. ROBERTS: Objection.
`
`Form.
`
`THE WITNESS:
`
`It reads,
`
`"The formatted
`
`program metadata 1124 is sent to the set-top box
`
`data server 1112, which transmits it to the
`
`appropriate set-top boxes."
`
`I'm sorry.
`
`I didn't follow your question.
`
`BY MR. GOLDBERG:
`
`Q.
`
`Let's go to paragraph 164 of Plotnick.
`
`Looking approximately two—thirds of the way down
`
`the paragraph, do you see that it says,
`
`"The ad
`
`serVer 716 transmits available ads and ad metadata
`
`to set—top boxes based on the ad schedule 1154"?
`
`A.
`
`Forgive me.
`
`I was trying to link that to
`
`my —— what portion I cited in my report. Can you
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`repeat that again, please.
`
`Q.
`
`Yes.
`
`Approximately two—thirds of the way down
`
`the paragraph 164, Plotnick states,
`
`"The ad server
`
`716 transmits available ads and ad metadata to
`
`set-top boxes based on the schedule 1154," correct?
`
`A.
`
`It states,
`
`"The ad server 716 transmits
`
`available ads and ad metadata to set-top boxes
`
`based on the ad schedule 1154."
`
`Q.
`
`Given these portions of paragraphs 160 and
`
`164 in Plotnick,
`
`that we have just discussed,
`
`is it
`
`your opinion that Plotnick teaches an STB —— STP ——
`
`sorry. Let me start that one over.
`
`A.
`
`Q.
`
`Tongue twister.
`
`Given portions of paragraph 160 and 164 in
`
`Plotnick,
`
`that we have just discussed,
`
`is it your
`
`opinion that Plotnick teaches an STB data server
`
`1112 that transmits program metadata to set—top
`
`boxes and a different ad server 716 that separately
`
`transmits ad metadata to the set—top boxes?
`
`
`
`MR. ROBERTS: Objection.
`
`Form.
`
`THE WITNESS: There is a statement that
`
`says,
`
`"A formatted program metadata 1124 is sent to
`
`the set—top box data server 1112, which transmits
`
`it to the appropriate set—top boxes." And there is
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`23
`
`an —— also a description of —— if I can find that
`
`line again —— "The ad server 716 transmits
`
`available ads and ad metadata to set-top boxes
`
`based on the ad schedule 1154."
`
`BY MR. GOLDBERG:
`
`Q.
`
`Does STB data server 1112 have anything to
`
`do with transmitting ad metadata to the set—top
`
`boxes?
`
`A.
`
`It says the ad server -- I'm sorry. Which
`
`one?
`
`Q.
`
`Does STB data server 1112 have anything to
`
`do with transmitting ad metadata to the set—top
`
`boxes?
`
`A.
`
`It says, "The formatted program metadata
`
`1124 is sent to the set-top box data server 1112,
`
`which transmits it to the appropriate set-top
`
`boxes."
`
`Q.
`
`Is that your answer? Are you still
`
`
`
`reading?
`
`A.
`
`Yeah.
`
`I'm sorry.
`
`Yes, that's my understanding of what the
`
`set—top box data server 1112 does. There's other
`
`descriptions that provide further description. But
`
`from this one sentence, that's the least of which
`
`it does.
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`IPR2014-00252
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`Q.
`
`Aside from this one sentence, you did
`
`spend time reviewing Plotnick in preparing your
`
`declaration and preparing to testify today, right?
`
`A.
`
`Q.
`
`Of course.
`
`Is there anywhere in Plotnick where STB
`
`data server 1112 is described as having anything to
`
`do with transmitting ad metadata to set—top boxes?
`
`A.
`
`This provides -- this whole discussion
`
`provides an overview of what metadata is. That was
`
`the whole intent of this inclusion.
`
`Metadata includes ad metadata. MEtadata
`
`includes information about program campaigns and
`
`data. That was the intent.
`
`As to whether or not it transmits —— it
`
`transmits formatted program metadata. This whole
`
`paragraph 160 in context gives an overview of what
`
`types of metadata exist, which includes program
`
`content,
`
`language information ratings, encoding
`
`attributes, network air times, delivery
`
`requirements and pricing, which I further discuss
`
`
`
`ad schedules in other places.
`
`Q.
`
`Okay.
`
`Thank you, Mr. Kramer.
`
`Let's turn to pages 27 to 31 of your
`
`declaration. And just let me know when you're done
`
`reviewing them.
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`(Witness reviewing document.)
`
`Okay.
`
`Thank you.
`
`
`
`Q.
`
`On pages 27 to 31 of your declaration, you
`
`map the recitation of the receiving device to
`
`utilize the secondary information to render
`
`secondary non—derivative content to the output
`
`device instead of the primary content of Claim 1 to
`
`Plotnick, right?
`
`A. Well, actually, there's a follow-up.
`
`So
`
`in completeness on page 27,
`
`the claim element
`
`reads, "The receiving device to utilize the
`
`secondary information to render secondary
`
`non—derivative content to the output device instead
`
`of primary content,
`
`the secondary non—derivative
`
`content not being derived from the primary
`
`content."
`
`So I would only add that last part.
`
`Q.
`
`Now, do you see on page 28 you start
`
`addressing metadata as the secondary information in
`
`the claim?
`
`MR. ROBERTS: Objection to form.
`
`THE WITNESS:
`
`On page 28 I say the words,
`
`"With respects to the metadata as the associated
`
`information, Plotnick teaches its PVR utilizes the
`
`
`
`metadata when it renders the alternative
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`Kramer, Richard A.
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`IPR2014-00252
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`advertisement."
`
`BY MR. GOLDBERG:
`
`Q.
`
`What paragraphs of Plotnick do you cite in
`
`support of your statement on page 28,
`
`that "With
`
`respect to the metadata as the secondary
`
`information, Plotnick teaches that its PVR utilizes
`
`the metadata when it renders the alternative
`
`advertisement"?
`
`
`
`A.
`
`On pages 28 to 29, I cite paragraph 164.
`
`I also, on page 29, cite paragraph 105.
`
`On page 30
`
`I cite paragraph 107.
`
`On page 30 I cite paragraph
`
`169. All these having different aspects of the
`
`claim element.
`
`On page 30 I cite paragraph 107.
`
`On page
`
`31 I cite paragraph 163. And then on page 31 I
`
`cite paragraph 172.
`
`Q.
`
`A.
`
`Q.
`
`Let's turn to paragraph 105 in Plotnick.
`
`Okay.
`
`I'm there.
`
`Now,
`
`looking at paragraph 105 and also the
`
`heading paragraph 104 directly above paragraph 105.
`
`Do you agree that paragraph 105 of Plotnick
`
`describes a PVR—enabled set-top box that would be
`
`in a subscriber's home?
`
`A.
`
`The first sentence reads, "Figure 3
`
`illustrates an exemplary system overview of a
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`September 3, 2014
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`IPR2014-00252
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`27
`
`PVR-enabled set-top box," in parentheses,
`
`"STB PVR,
`
`or residential gateway," in parentheses,
`
`"RG that
`
`contains the basic functionality necessary to
`
`support upstream and downstream data transmissions,
`
`digital television reception and presentation, and
`
`storage of digital video programming."
`
`Q.
`
`Given that paragraph 104 is entitled,
`
`"Residential PVR," and that the sentence you just
`
`read ——
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`It says -—
`
`—- ends with "residential gateway" -—
`
`It says "residential PVR."
`
`—- would you agree that the PVR being
`
`
`
`
`
`described in paragraph 105 would be found in a
`
`subscriber's home?
`
`A.
`
`It could be found in -- it could be found
`
`in a subscriber's home.
`
`It says, "an exemplary
`
`system overview."
`
`Q.
`
`Continuing through paragraph 105.
`
`Plotnick explains that the set—top box has the
`
`tuner/demod 304, right?
`
`A.
`
`Q.
`
`Can you show me where you're at, please.
`
`Approximately a third of the way through
`
`the paragraph.
`
`A.
`
`And what paragraph again, please.
`
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`IPR2014-00252
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`Q.
`
`A.
`
`105.
`
`Did you say this —— I'm looking at a
`
`sentence that says, "The system contains a tuner,
`
`slash, demod 304."
`
`Is that what you're talking
`
`about?
`
`Q.
`
`A.
`
`Yes.
`
`It continues on, "That provides for the
`
`reception of programming and data."
`
`Q.
`
`In your opinion,
`
`is the system that
`
`contains a tuner and demod 304 the PVR—enabled
`
`set—top box?
`
`A.
`
`It may be part of it.
`
`It -— it would
`
`contain a tuner and demod.
`
`Q.
`
`A.
`
`Q.
`
`The PVR would contain a tuner and demod?
`
`As one exemplary system example, it could.
`
`Does the PVR—enabled set-top box of
`
`paragraph 105 include a data tagging unit 308?
`
`A.
`
`In paragraph 105 there is a sentence that
`
`states,
`
`"A data tagging unit 308 adds metadata
`
`descriptors to video to be recorded."
`
`Q.
`
`So is it your opinion that the data
`
`tagging unit is part of the PVR—enabled set-top
`
`
`
`box?
`
`A.
`
`Q.
`
`It is one exemplary example.
`
`It could be.
`
`In an example, as you just described,
`
`in
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`IPR2014-00252
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`which the data tagging unit 308 is part of the
`
`PVR—enabled set—top box,
`
`the set-top box would
`
`associate metadata to the programs it receives,
`
`right?
`
`A.
`
`I'm not sure I follow that question.
`
`Could you repeat it.
`
`Q.
`
`In an example in which the data tagging
`
`unit 308 is part of the PVR-enabled set—top box,
`
`the set—top box would associate metadata to the
`
`programs it receives, right?
`
`A.
`
`It says here --
`
`MR. ROBERTS: Hold on a minute. Objection
`
`to form. Hypothetical.
`
`THE WITNESS:
`
`To clarify, it says,
`
`"A data
`
`tagging unit 308 adds metadata descriptors to video
`
`to be recorded.
`
`The metadata is used by the PVR to
`
`identify and characterize programs."
`
`BY MR. GOLDBERG:
`
`Q. Well, let's go back to your declaration,
`
`page 26 —— no, scratch that. We will take a short
`
`break now.
`
`A.
`
`Okay.
`
`Thank you.
`
`
`
`MR. GOLDBERG: Maybe ten minutes, okay?
`
`MR. ROBERTS: Great.
`
`(Recess taken at 9:53 a.m. Back on the
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`record at 10:05 a.m.)
`
`BY MR. GOLDBERG:
`
`Q.
`
`Did you discuss anything with counsel for
`
`Netflix during the break?
`
`A.
`
`Q.
`
`Not pertaining to the case.
`
`And you understand that you're still under
`
`oath, right?
`
`A.
`
`Q.
`
`Yes, I do.
`
`Let's turn to paragraph 24 of your
`
`
`
`
`
`declaration.
`
`A.
`
`Okay.
`
`MR. ROBERTS:
`
`I'm sorry. What page?
`
`MR. GOLDBERG:
`
`Paragraph 24, page 10.
`
`MR. ROBERTS:
`
`Thank you.
`
`THE WITNESS:
`
`I'm there.
`
`BY MR. GOLDBERG:
`
`Q.
`
`In the last line of the paragraph you
`
`state that "Any claim term not construed in the
`
`patents or discussed below should be given its
`
`ordinary and customary meaning."
`
`Aside from the term identified on pages 11
`
`and 12, secondary non—derivative content, did you
`
`find any other claim term that should be given a
`
`specific meaning other than its ordinary and
`
`customary meaning?
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`31
`
`A.
`
`The answer to that is -- is, yes,
`
`there is
`
`a section called -- in the patent at issue,
`
`starting in column 3,
`
`there is a section called,
`
`"Definitions." And so within that,
`
`there is a
`
`series of definitions provided.
`
`Q.
`
`Aside from those definitions in column 3
`
`and the term identified on pages 11 and 12 of your
`
`declaration, secondary non—derivative content, did
`
`you find any other claim term that should be given
`
`a specific meaning other than its ordinary and
`
`customary meaning?
`
`MR. ROBERTS: Object to the form of the
`
`question.
`
`
`
`THE WITNESS:
`
`So I state,
`
`"Any claim term
`
`not construed in the patent nor discussed below
`
`should be given its ordinary meaning."
`
`I find that
`
`there is claim terms on definition that have -— the
`
`patentee went through great lengths to define. And
`
`I find that there was a mistake,
`
`I feel, related to
`
`secondary non—derivative Content.
`
`So I called out‘
`
`that mistake in the patent at issue, and I list
`
`that on page 11.
`
`If it's not defined in those sections,
`
`then I give it its customary and ordinary meaning.
`
`///
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`September 3, 2014
`
`IPR2014-00252
`
`BY MR. GOLDBERG:
`
`Q.
`
`You View yourself as one skilled in the
`
`art of the '786 Patent, correct?
`
`A.
`
`I do. And then also —— as I discuss on
`
`page 23,
`
`I am very astutely aware of what one
`
`skilled in the art's capabilities were at the time
`
`of this alleged invention.
`
`Q.
`
`And do you understand the claims of the
`
`'786 Patent?
`
`A.
`
`Q.
`
`I do.
`
`Do you understand with reasonable
`
`certainty all of the terms and the claims of the
`
`'786 Patent?
`
`MR. ROBERTS: Objection.
`
`Scope.
`
`THE WITNESS:
`
`I —- yes,
`
`I do.
`
`BY MR. GOLDBERG:
`
`
`
`Q.
`
`And did you understand with reasonable
`
`certainty all of the terms in the claims of the
`
`'786 Patent when you rendered your opinion?
`
`MR. ROBERTS:
`
`Same objection. Also calls
`
`for a legal conclusion.
`
`THE WITNESS:
`
`On the basis that I outline
`
`on pages 10 and 11, yes.
`
`BY MR. GOLDBERG:
`
`Q.
`
`Were there any terms of the '786 Patent
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`202-220-415 8
`
`Page320f60
`
`
`
`Kramer, Richard A.
`
`September 3, 2014
`
`IPR2014-00252
`
`that you did not understand with reasonable
`
`certainty in rendering your opinion?
`
`MR. ROBERTS:
`
`Same objections.
`
`
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