In The Matter Of:
`
`GOOGLE INC.
`v.
` MICROGRAFX, LLC
`
` ___________________________________________________
`
`KITCHEN, GARRY ‐ Vol. 1
`February 4, 2015
`
` ___________________________________________________
`
`
`1
`
`GOOGLE-1012
`Google Inc. v. Micrografx LLC
`IPR2014-00532
`
`
`
`GOOGLE INC.
`v.
` MICROGRAFX, LLC
`
` ___________________________________________________
`
`KITCHEN, GARRY ‐ Vol. 1
`February 4, 2015
`
` ___________________________________________________
`
`
`1
`
`GOOGLE-1012
`Google Inc. v. Micrografx LLC
`IPR2014-00532
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC., SAMSUNG
`TELECOMMUNICATIONS AMERICA, LLC,
`SAMSUNG ELECTRONICS AMERICA,
`INC., AND SAMSUNG ELECTRONICS
`COL., LTD.,
` Petitioners,
` -vs- CASE IPR2014-00532
` Patent 5,959,633
`MICROGRAFX, LLC,
` Respondent.
` /
`
` DEPOSITION OF
` GARRY KITCHEN
` February 4, 2015
`
`Reported by: WENDY E. ARLEN, CSR #4355, RMR, CRR
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`2
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 2
`
` INDEX OF EXAMINATIONS
`
` EXAMINATION BY: Page
` MR. ALMELING 5
` MR. WILSON 73
` MR. ALMELING 77
`
` --oOo--
`
` INDEX OF EXHIBITS
`
` EXHIBIT NO. DESCRIPTION PAGE
`Exhibit 1023 Patent Owner's Response Under 37 CFR 20
` § 42.120 to Petition for Inter
` Partes Review of United States
` Patent No. 5,959,633 (Not attached
` to the transcript)
`
` --oOo--
`
`1
`
`2 3
`
`4
`5
`6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`3
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 3
`
` Deposition of GARRY KITCHEN, taken by the
` respondent, at O'MELVENY & MYERS LLP, Two Embarcadero
` Center, 28th Floor, San Francisco, California,
` commencing at 10:00 a.m., Wednesday, February 4, 2015
` before me, WENDY E. ARLEN, CSR, RMR, CRR.
` A P P E A R A N C E S
`
` FOR THE PETITIONERS:
` O'MELVENY & MYERS LLP
` Attorneys at Law
` DAVID S. ALMELING, Esq.
` Two Embarcadero Center, 28th Floor
` San Francisco, California 94111-3823
` 415.984.8959
` dalmeling@omm.com
` FISH & RICHARDSON
` Attorneys at Law
` MICHAEL T. HAWKINS, Esq.
` RICK BISENIUS, Esq.
` 60 South Sixth Street, 3200 RBC Plaza
` Minneapolis, Minnesota 55402
` 612.237.2569
` hawkins@fr.com
`
` FOR THE RESPONDENT:
` HEIM PAYNE + CHORUSH LLP
` Attorneys at Law
` DOUGLAS WILSON, Esq.
` 9442 Capital of Texas Highway North
` Plaza One, Suite 500-146
` Austin, Texas 78759
` 512.313.3622
` dwilson@hpcllp.com
`
` ALSO PRESENT:
` Nevin Kapur, Google Inc.
`
`1
`2
`3
`4
`5
`6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`4
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` San Francisco, California
` Wednesday, February 4, 2015
` 10:00 a.m.
` --oOo--
` GARRY KITCHEN,
` having been first duly sworn, was
` examined and testified as follows:
` --oOo--
` MR. ALMELING: Let's make appearances. My name
` is David Almeling of O'Melveny & Myers. I represent the
` petitioners in these IPR's, that is, Google, Inc.,
` Samsung Telecommunications America, LLC and Samsung
` Electronics America, Inc.
` With me from Google, Inc., is Nevin Kapur.
` MR. HAWKINS: My name is Michael Hawkins from
` the law firm of Fish & Richardson also representing
` petitioners in these IPR proceedings.
` MR. BISENIUS: My name is Patrick Bisenius,
` also from Fish & Richardson and representing
` petitioners.
` MR. WILSON: Douglas Wilson of Heim Payne +
` Chorush representing patent owner and the witness.
` THE WITNESS: Garry, G-a-r-r-y, Kitchen,
` K-i-t-c-h-e-n, consultant expert hired by the patent
` owners.
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`5
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` MR. ALMELING: For clarity, this deposition is
` regarding case IPR 2014-532. This is regarding the U.S.
` Patent No. 5,959.633.
` EXAMINATION BY MR. ALMELING
` Q. Mr. Kitchen, please state your home address.
` A. Home address is 1313 Still Creek Place in
` Danville, California.
` Q. Do you understand that you're under oath?
` A. Yes, I do.
` Q. Is there any reason that you cannot give
` truthful and accurate testimony today?
` A. No.
` Q. To ensure clarity, I want to define several
` terms that we're going to use throughout the deposition.
` When I use Google, I'm referring to Google, Inc.
` Do you understand?
` A. Yes.
` Q. When I use the term patent owner or Micrografx,
` I'm referring to Micrografx LLC.
` Do you understand?
` A. Yes.
` Q. When I use the term Samsung, I'm referring to
` Samsung Telecommunications America, LLC and Samsung
` Electronics America, Inc.
` Do you understand?
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`6
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Yes.
` Q. When I use the term petitioners, I'm referring
` to Google and Samsung.
` Do you understand?
` A. Yes.
` Q. When I use the term POSITA, I am referring to a
` person of ordinary skill in the art at the time of the
` alleged invention.
` Do you understand?
` A. Yes.
` Q. Without revealing any privileged information,
` please describe how you prepared for today's deposition.
` A. Do you want to know specifically how I prepared
` for the deposition or do you want me to go back to how I
` did my analysis in writing my declaration?
` Q. The former.
` A. I reviewed my declaration, I reviewed
` Dr. Lastra's declaration, I reread the patent and I
` reread the prior art elements, I also read the brief
` filed by the patent owners.
` Q. When you refer to the brief filed by the patent
` owners, what in particular are you referring to?
` A. The response brief regarding the '633 patent.
` Q. For your preparation for today's testimony, did
` you meet with anyone?
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`7
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. I met with Mr. Wilson yesterday.
` Q. For approximately how long?
` A. Four hours.
` Q. Other than meeting with Mr. Wilson and
` reviewing the materials that you identified, did you do
` anything else to prepare for today's deposition?
` A. No, I don't believe so.
` Q. When were you first contacted on behalf of
` Micrografx?
` A. I would say it would have been around the
` middle of 2014.
` Q. Who contacted you?
` A. A law firm, Tensegrity.
` Q. Who at Tensegrity?
` A. Don't remember the name.
` Q. Do you have a written agreement that governs
` your work regarding the Micrografx and Google and
` Samsung dispute?
` A. Yes, I do.
` Q. During your career, approximately how many
` times have you served as an expert in a patent case?
` A. Specific to a patent case, I would say
` somewhere in the range of 10 to 15.
` Q. During your career, approximately how many
` times have you served as an expert in an IPR matter?
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`8
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Three or four maybe.
` Q. During your career, approximately how many
` times have you been deposed as an expert?
` A. I would say more than 20.
` Q. During your career, approximately how many
` times have you been deposed as an expert in a patent
` case?
` A. I would -- I would say at least 15.
` Q. Have you ever served as an expert in a
` litigation IPR or other proceeding against Samsung?
` A. No.
` Q. Have you ever served as an expert in
` litigation, IPR or other proceeding against Google?
` A. Yes.
` Q. Approximately how many times have you served as
` an expert against Google?
` A. Once.
` Q. Do you recall the name of the case?
` A. I believe the client was Netjumper,
` N-e-t-j-u-m-p-e-r.
` Q. Is that case identified on the CV that you
` submitted as part of your declaration?
` A. Yes, it is.
` Q. Without revealing any confidential information
` regarding that case, can you describe at a high level
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`9
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` what technology was involved?
` A. This was quite a while ago. It was probably
` seven or eight years ago. Netjumper had a patent
` involving an element of search, and I was hired as an
` expert for the patent owner, did some preliminary work,
` filed at least one report, and I believe the patents
` went into reexam.
` Q. As part of that case, did you have access to
` any Google confidential information?
` A. No, I don't believe it ever got that far.
` Q. Do you consider yourself an expert in the state
` of computer graphics technology in the mid-1990's?
` A. Yes.
` Q. Do you consider yourself an expert in the state
` of computer graphics technology today?
` A. Yes.
` Q. What is the first year during which you would
` consider yourself to be an expert in computer graphics
` technology?
` A. I would say 1982.
` Q. From 1982 until today, would you consider
` yourself an expert in computer graphics technology
` during that duration?
` A. Generally, yes.
` Q. You qualified that yes. Can you explain the
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`10
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` qualification?
` A. Well, I'm sure there are aspects of computer
` graphics technology that I could be contacted on that I
` may not serve myself as an expert. For example, you
` know, very specific elements of the internals of high
` level graphic processors, things like that. But I've
` worked with computer graphics since 1980, and I
` certainly have an expertise in computer graphics from a
` general sense. I'm sure there are specific elements
` where I would step aside.
` Q. Approximately how many of the cases in which
` you have served as an expert have been cases involving
` computer graphics technology? And you can do this as a
` percentage if that's easier.
` A. I would say 10 to 20 percent.
` Q. As part of your work in the IPR regarding the
` '633 patent, did you ever communicate with any of the
` named inventors on the '633 patent?
` A. No.
` Q. Did you ever communicate with anyone affiliated
` with Micrografx other than Micrografx's attorneys?
` A. No.
` Q. Other than Mr. Wilson, the individual you could
` not name at Tensegrity, are there any other individuals
` with whom you communicated regarding your work on the
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`11
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Micrografx IPR's?
` A. I had an early meeting with other attorneys at
` Tensegrity. I would have to go back to my records to
` figure out who was in that meeting.
` Q. Anyone else?
` A. I also -- I'm sorry. Are we specifically the
` '633 now or in general?
` Q. Let's make this general. Any of the patents
` that are subject to the IPR's, that is, the '633, '854,
` and '732.
` A. I also had dealings with an associate of
` Mr. Wilson's, Nate, and I can't remember his last name.
` Q. Anyone else?
` A. Another attorney at his firm.
` Q. Other than Nate Davis, Doug Wilson and
` attorneys at Tensegrity have you communicated with
` anyone else concerning your work for Micrografx?
` A. I may have been on a call with a couple of
` other attorneys at Doug's firm, but I don't recall the
` names. Other than that, no, I don't believe I've
` communicated with anyone else.
` Q. Do you have anyone such as an assistant help
` you with your report?
` A. No, I did it 100 percent by myself.
` Q. Can you please describe the process of how you
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`12
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` prepared your report?
` A. Do you want to focus on the nuts and bolts of
` how it was prepared or do you want to focus on the
` analysis behind it?
` Q. We'll talk about the analysis later today.
` Right now, I'm interested in the nuts and bolts. Let me
` sort of a specific question because that might help.
` Is it accurate to say you wrote every word of
` your expert report?
` MR. WILSON: I'm going to object.
` THE WITNESS: Go ahead.
` MR. WILSON: I don't know what you're driving
` here. If you're going to try to figure out, you know,
` what content the attorneys might have commented on or
` whatever, to the extent you're going into that, I think
` it's protected by the attorney/client privilege. I
` don't think you're entitled to that information.
` MR. ALMELING: Just to be clear, I'm not asking
` for any privileged information. At this level of
` granularity it certainly does not call for that.
` Q. Is it accurate to say that you wrote every
` single word of your expert report?
` MR. WILSON: I'm going to instruct him not to
` answer. I'm going to object on the basis of privilege
` and instruct him not to answer. I think it does call
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`13
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` for privileged information.
` MR. ALMELING: So just to be clear, the yes or
` no response to any single word you believe calls for
` privileged information if I do not follow up and ask
` what word?
` MR. WILSON: Okay. I'll let him answer that
` question.
` THE WITNESS: With a simple yes or no, we're
` saying?
` MR. WILSON: Simple yes or no.
` THE WITNESS: No.
` Q. MR. ALMELING: Given that, can you please
` describe, without revealing any privileged information,
` how you did prepare your expert report, the nuts and
` bolts, as you put it?
` MR. WILSON: I'm going to object and instruct
` him not to answer. Not to provide any communications
` that he had between his attorneys and himself during the
` preparation of his report, including any content that
` was contributed by any attorneys or go into any of the
` comments or whatever that occurred in the preparation of
` his report. To the extent you can answer without going
` into that, go ahead.
` THE WITNESS: I -- when I write a report like
` this, I draft the report myself. I sit at a keyboard
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`14
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` and type. As with other reports I do, I took the lead
` on drafting the report. Anything in the report that had
` to do with technical analysis I wrote. My background
` may have come from a previous report that I wrote, but I
` am wholly responsible for any of the relevant content in
` the report.
` Q. MR. ALMELING: When you say wholly responsible,
` what do you mean?
` A. I mean I wrote it.
` Q. In forming your opinions in this IPR regarding
` the '633 patent, you did not rely on any assumptions
` that you did not identify in your '633 declaration,
` correct?
` A. I think that's correct, yes.
` Q. You do not currently have any opinions about
` the '633 patent that are not stated in your '633
` declaration, correct?
` A. Yes, I think that's correct.
` Q. Nothing has happened since you prepared your
` '633 declaration that changes any of the opinions you
` provided in that declaration, correct?
` A. I did find two errors in the report when I
` reviewed it in advance of this deposition.
` Q. What are those two errors?
` A. One error is in paragraph 48. It's a typo, and
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`15
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` I used the word internal when I should be using the word
` external. I found it upon review.
` Q. I hand you what has previously been identified
` as Exhibit 2005. When I used the phrase '633
` declaration or your declaration in the context of this
` deposition, I am referring to Exhibit 2005.
` Do you understand?
` A. Yes.
` Q. So can you please identify the first of two
` errors?
` A. Paragraph 48 on page 24. I state: "For the
` same reason, Walton was not motivated to invent an
` internal shape." That's supposed to be an external
` shape.
` Q. Are you aware of any additional errors in your
` '633 declaration?
` A. Yes, I have an omission in the proposed
` construction of the term "external shape stored outside
` the computer program." The -- let's see. Paragraph 28
` on page 13. It quotes the proposal from the patent
` board for the construction as computer code stored
` outside the computer program that defines a graphical
` image.
` My opinion was to further clarify that by
` adding the phrase "that can be developed and
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`16
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` provided" -- and I'm quoting from page 16, paragraph
` 32 -- "that can be developed and provided for use by the
` computer program without modifying the computer
` program."
` In adding that phrase, I inadvertently left out
` the critical words "that defines a graphical image." In
` the context of this case, it's likely we would agree
` that without "that defines a graphical image" that's not
` the correct construction. So the omission is in
` paragraph 32 on page 16, the last line, and the proper
` construction that I opined on would be:
` "...computer code stored outside the
` computer program that defines a graphical image
` and that can be developed and provided for use
` by the computer program without modifying the
` computer program."
` Q. Is paragraph 32 the only place in which the
` language that you now have added should also be added?
` A. I don't know that for certain. I may quote
` that construction, proposed construction, elsewhere in
` the report, and I will say that if I quote it elsewhere
` in the report, it should have the added phrase; but I --
` when I found this yesterday, I did not go through the
` report to find every place that it's quoted.
` Q. Your report did not provide an opinion
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`17
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` regarding the specific language that defines a graphical
` image anywhere in the '633 declaration, correct? You
` are now adding that information, correct?
` MR. WILSON: Objection, form.
` THE WITNESS: I don't understand the question.
` What was that?
` Q. MR. ALMELING: Sure. So let me sort of explain
` the purpose of the question which I think may help. I
` read your report, and I don't see any discussion of
` that -- the phrase "that defines a graphical image"
` anywhere. So what I think that you're doing is changing
` both the construction that you used as well as changing
` that analysis that derives from that construction, and I
` just wanted to confirm that my understanding is correct.
` A. No, I stand by my analysis. My entire analysis
` assumes that it defines a graphical image. I mean,
` that's the basis for a shape, a shape defines a
` graphical image.
` I inadvertently left the words out of the
` construction, but it doesn't change any of my analysis.
` Q. You also left the words "that defines a
` graphical image" out of the entirety of your '633
` declaration, correct?
` MR. WILSON: Objection , form.
` THE WITNESS: Only to the extent that I'm not
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`18
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` quoting the proposed construction.
` Q. MR. ALMELING: Your '633 declaration as it's
` written does not contain any analysis specific to the
` phrase "that defines a graphical image," correct?
` A. It contains analysis about whether or not the
` prior art defines a graphical image.
` Q. That's not my question. Your '633 declaration
` as it's written does not contain any analysis specific
` to the phrase "that defines a graphical image," correct?
` MR. WILSON: Objection, form.
` THE WITNESS: I guess I don't understand the
` question because doing an analysis of the prior art as
` to whether or not it's performing the phrase is in
` reference to the phrase. Exactly what are you asking?
` Q. MR. ALMELING: What I'm trying to get at is I'm
` unclear if the only thing that you're doing is adding
` five words to paragraph 32 because you forgot to add
` those or that those five words have been forgotten to
` add to the entirety of your report; and, therefore, you
` would like to add that analysis to the report.
` So my question is there is no part of your
` report that currently addresses the phrase "that defines
` a graphical image," correct?
` MR. WILSON: Objection, asked and answered.
` THE WITNESS: I don't do a specific analysis of
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`19
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` those words, but inherent in my report is my knowledge
` that the appropriate claim construction for "external
` shape stored outside the computer program" is an
` external shape that determines a graphical image. I
` mean, that's inherent in my knowledge and that's
` throughout this report.
` Q. MR. ALMELING: When did you realize that there
` was an omission from your proposed construction in
` paragraph 32?
` A. Yesterday when I read the report for the 15th
` time.
` Q. When was the first time you heard of the Walton
` reference?
` A. I believe it's when I started working on my
` declaration in this case.
` Q. Did you have any role in preparing the patent
` owner's response which you said you have reviewed?
` A. No, I was not consulted on it. I didn't
` contribute any language to it. To the extent something
` in it may have been based on my declaration, I was not
` party to that.
` Q. You said that you reviewed it in preparation
` for your deposition today, correct?
` A. Yes.
` Q. In reviewing that document, did you see
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`20
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` anything with which you disagreed?
` A. No.
` MR. ALMELING: I'd like to mark -- withdrawn.
` Q. I hand you what has been previously been
` marked -- withdrawn again.
` I actually would like to mark a document titled
` Patent Owner's Response under 37 CFR Section 42.120 to
` Petition for Inter Partes Review of United States Patent
` No. 5,959.633 consecutively paginated from i through 57.
` Please mark this as Exhibit 1023.
` (Deposition Exhibit 1023 marked for
` identification.)
` Q. MR. ALMELING: I direct your attention to --
` well, withdrawn.
` The document that you identified as being the
` patent owner's response that you reviewed yesterday is
` Exhibit 1023, correct?
` A. Yes.
` Q. I direct your attention to page 10. The third
` sentence of the first full paragraph reads:
` "A more appropriate construction for the
` phrase 'external shape stored outside the
` computer program' is 'computer code stored
` outside the computer program that can be
` developed and provided for use by the computer
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`21
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` program without modifying the computer
` program.'"
` A. Yes.
` Q. You have asked to revise an omission in your
` construction. Do you believe that your construction is
` the appropriate construction or that the construction
` identified in the patent owner's response is the
` appropriate construction?
` A. I believe my revised construction is the
` appropriate construction.
` Q. So you believe that the construction on page 10
` of Exhibit 1023 is incorrect.
` A. I believe it contains the same omission that
` mine does.
` Q. I direct your attention to paragraph 3 of your
` '633 declaration. This identifies the complete universe
` of materials that you reviewed for purposes of your work
` on the '633 patent, correct?
` A. Yes, I believe that's correct.
` Q. Let's return to paragraph 32. Is it your
` opinion that your construction of "external shape stored
` outside the computer program" is either the, one,
` ordinary meaning a POSITA would give that phrase or,
` two, that the patentee acted as his own lexicographer in
` defining that phrase?
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`22
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` MR. WILSON: Object to form.
` THE WITNESS: I think that a POSITA in
` reviewing the patent and use of the term would agree
` that the correct construction is mine proposed with the
` addition of the phrase we discussed.
` Q. MR. ALMELING: You do not believe that the '633
` patent acted as his own lexicographer in defining the
` phrase the "external shape stored outside the computer
` program," correct?
` A. I didn't consider that. I don't have an
` opinion one way or another on that.
` Q. You're familiar, of course, given your
` extensive work on patent cases, on the distinction
` between a patent owner defining a term being his own
` lexicographer and not defining a term but that term
` being defined by the plain meaning a POSITA would give
` it, correct?
` A. Yes.
` Q. Given that understanding, let me ask the
` question again. Did the patentee of the '633 patent act
` as his own lexicographer in defining the phrase
` "external shape stored outside the computer program"?
` MR. WILSON: Objection, asked and answered.
` THE WITNESS: I don't recall seeing a specific
` definition for the phrase in the patent or patent
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`23
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` specification.
` Q. MR. ALMELING: In creating the construction of
` the phrase "external shape stored outside the computer
` program" that you did, you relied on what you believed
` was the ordinary meaning a POSITA would give that
` phrase, correct?
` MR. WILSON: Objection, form.
` THE WITNESS: I relied on the meaning that a
` POSITA would understand given the technology and I
` relied on the backup found throughout the specification
` to lead me to the conclusion.
` Q. MR. ALMELING: Part of your definition is the
` phrase "can be developed and provided for use by the
` computer program without modifying the computer
` program." Please describe what you mean by that.
` A. It means that the external shape can be added
` to a computer program, a graphics program, that exists
` after the program has been compiled without having to
` recompile the program or modify it in other way. The
` essence of the invention is that having capabilities
` built into the shape allows it to essentially add
` graphic capabilities to the program without having to
` recompile the program.
` Q. You used the phrase without recompiling or
` otherwise modifying in any other way. What do you mean
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`24
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` modifying in any other way?
` A. Well, adding code to it or -- I mean, in the
` software world, a simple practical answer is if I have
` distributed a hundred thousand copies of a graphic
` program, I don't have to put out an update. I don't
` have to ship another version to everyone. The version
` they're using is compatible with the external shapes now
` and in the future.
` Q. If, instead of changing the existing code,
` lines of code were deleted, would that constitute
` modification of the computer program?
` MR. WILSON: Objection, form.
` THE WITNESS: If the lines of code that were
` deleted were specifically deleted to allow use of the
` external shape, then it would.
` Q. MR. ALMELING: But, otherwise, it would not?
` A. Well, I can only look at it in the context of
` this wording, and in the context of this wording, when I
` say without modifying the computer program, I mean
` without changing the computer program. If someone had
` to go in and delete lines or else the external shape
` would not work, then that would qualify as modifying.
` Q. If instead of changing existing lines of code
` of the computer program new lines of code were added,
` would that constitute modification of the computer
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`25
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` program?
` MR. WILSON: Objection, form.
` THE WITNESS: Only to the extent that adding
` those lines of code were specific to allowing the
` external shape to be used.
` Q. MR. ALMELING: In both of my examples of
` removing lines of code or ordering lines of code you
` qualified it by only to the extent of allowing the
` external shape to be used. Where is that qualification
` in the construction of external shape stored outside the
` computer program?
` A. Well, I read that into the phrase "provided for
` use by the computer program without modifying the
` computer program." It's talking specifically about it
` can be developed and provided for use by the computer
` program, and as a cause and effect from being provided,
` the program doesn't have to be modified.
` Now, if the program is modified because there
` is a bug in it that has nothing to do with external
` shapes or it's modified to be compatible with the next
` version of the Windows operating system, I don't read
` that into this claim construction. This is specific to
` because the shape is provided to the computer program,
` something has to be modified in the program to make it
` compatible.
`
`Merrill Corporation
`800-826-0277
`www.deposition.com/southern-california.htm
`
`26
`
`
`
`GARRY KITCHEN - 2/4/2015
`
`Page 26
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. The phrase "without modifying the computer
` program" in your construction contains no explicit
` qualifications, correct?
` A. No, I have to look at it in context.
` Q. The construction of external shape that you
` provided was the construction, in your opinion, that's
` under the broadest reasonable interp
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
