· · ·UNITED STATES PATENT AND TRADEMARK OFFICE
`
`· · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO. LTD.;
`SAMSUNG ELECTRONICS AMERICA
`INC.; AND SAMSUNG
`TELECOMMUNICATIONS AMERICA,
`LLC,
`
`· · · · · · · · ·Petitioner,
`
`· · vs.· · · · · · · · · · · · · No. IPR2014-00717
`
`BLACK HILLS MEDIA, LLC,
`
`· · · · · · · · ·Patent Owner.
`_______________________________/
`
`· · · ·DEPOSITION OF KEVIN C. ALMEROTH, Ph.D.
`
`· · · · · · VOLUME II (Pages 280 - 350)
`
`· · · · · · · · · ·June 16, 2015
`
`Reported by:
`Natalie Y. Botelho
`CSR No. 9897
`
`
`
`· · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO. LTD.;
`SAMSUNG ELECTRONICS AMERICA
`INC.; AND SAMSUNG
`TELECOMMUNICATIONS AMERICA,
`LLC,
`
`· · · · · · · · ·Petitioner,
`
`· · vs.· · · · · · · · · · · · · No. IPR2014-00717
`
`BLACK HILLS MEDIA, LLC,
`
`· · · · · · · · ·Patent Owner.
`_______________________________/
`
`· · · ·DEPOSITION OF KEVIN C. ALMEROTH, Ph.D.
`
`· · · · · · VOLUME II (Pages 280 - 350)
`
`· · · · · · · · · ·June 16, 2015
`
`Reported by:
`Natalie Y. Botelho
`CSR No. 9897
`
`
`
`·1· · · · · · · · · · · · · INDEX
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`·2· · · · · · · · · INDEX OF EXAMINATIONS
`
`·3· · · · · · · · · · · · · · · · · · · · · · · · · ·Page
`
`·4· ·EXAMINATION BY MR. HAIGHT........................284
`
`·5
`
`·6· · · · · · · · · · · · ---oOo---
`
`·7
`
`·8· · · · · · EXHIBITS MARKED FOR IDENTIFICATION
`
`·9· ·No.· · · · · · · · Description· · · · · · · · · Page
`
`10· ·Exhibit 2· · · Declaration of Kevin C............289
`· · · · · · · · · · Almeroth, Ph.D., Samsung
`11· · · · · · · · · Ex. 1005
`
`12· ·Exhibit 4· · · United States Patent No...........291
`· · · · · · · · · · 6,108,686, Samsung Ex. 1001
`13
`· · ·Exhibit 5· · · United States Patent No...........291
`14· · · · · · · · · 5,740,549, Samsung Ex. 1003
`
`15· ·Exhibit 11· · ·Notice of Deposition of...........285
`· · · · · · · · · · Kevin C. Almeroth, Ph.D.
`16
`· · ·Exhibit 12· · ·Second Declaration of.............287
`17· · · · · · · · · Kevin C. Almeroth, Ph.D.,
`· · · · · · · · · · Samsung Ex. 1017
`18
`· · ·Exhibit 13· · ·Declaration of William O..........314
`19· · · · · · · · · Putnam
`
`20· · · · · · · · · · · · ---oOo---
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`·1· · · · · · ·BE IT REMEMBERED THAT, on Tuesday, June
`
`·2· ·16, 2015, commencing at the hour of 9:06 a.m. of the
`
`·3· ·said day, at the law offices of COVINGTON & BURLING,
`
`·4· ·One Front Street, 35th Floor, San Francisco,
`
`·5· ·California, before me, NATALIE Y. BOTELHO, a
`
`·6· ·Certified Shorthand Reporter for the State of
`
`·7· ·California, personally appeared KEVIN C. ALMEROTH, a
`
`·8· ·witness in the above-entitled court and cause, who,
`
`·9· ·being by me first duly sworn, was examined in said
`
`10· ·cause.
`
`11
`
`12· · · · · · · · · APPEARANCE OF COUNSEL
`
`13
`
`14· ·FOR PETITIONER, SAMSUNG ELECTRONICS:
`
`15· · · · · · COVINGTON & BURLING LLP
`· · · · · · · BY:· GREGORY S. DISCHER, ESQ.
`16· · · · · · One CityCenter, 850 Tenth Street, NW
`· · · · · · · Washington, DC· 20001-4956
`17· · · · · · (202)662-5485
`· · · · · · · gdischer@cov.com
`18
`
`19· ·FOR PATENT OWNER, BLACK HILLS MEDIA:
`
`20· · · · · · PEPPER HAMILTON LLP
`· · · · · · · BY:· GEORGE S. HAIGHT, IV, ESQ.
`21· · · · · · 19th Floor, High Street Tower
`· · · · · · · 125 High Street
`22· · · · · · Boston, MA· 02110-2736
`· · · · · · · (617)204-5100
`23· · · · · · haightg@pepperlaw.com
`
`24· ·ALSO PRESENT:
`
`25· · · · · · Patrick Murray, Videographer
`
`
`
`·1· · · · · · TUESDAY, JUNE 16, 2015, 9:06 A.M.
`
`·2
`
`·3· · · · · · · · · · · ·PROCEEDINGS
`
`·4· · · · · · ·THE VIDEOGRAPHER:· We are on the record at
`
`·5· ·the beginning of media No. 1 in the deposition of
`
`·6· ·Kevin Almeroth, volume II, in the matter of Samsung
`
`·7· ·Electronics, et al. versus Black Hills Media, LLC,
`
`·8· ·before the U.S. Patent and Trademark Office, in the
`
`·9· ·Patent and Appeal Board.· The case number is
`
`10· ·IPR2014-00717.
`
`11· · · · · · ·Today's date is June 16th, 2015.· The time
`
`12· ·on the video monitor is 9:06.· The video operator
`
`13· ·today is Patrick Murray.· This video deposition is
`
`14· ·taking place at One Front Street, 35th Floor, San
`
`15· ·Francisco, California.
`
`16· · · · · · ·Counsel, please identify yourselves and
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`17· ·state whom you represent.
`
`18· · · · · · ·MR. HAIGHT:· George Haight of Pepper
`
`19· ·Hamilton, on behalf of Black Hills Media.
`
`20· · · · · · ·MR. DISCHER:· Gregory Discher with
`
`21· ·Covington & Burling, LLP, representing Petitioner,
`
`22· ·Samsung Electronics.
`
`23· · · · · · ·THE VIDEOGRAPHER:· Thank you.· The court
`
`24· ·reporter today is Natalie Botelho of Merrill.· Will
`
`25· ·the reporter please swear in the witness.
`
`
`
`·1· · · · · · · · · · KEVIN C. ALMEROTH,
`
`·2· · · being first duly sworn, testified as follows:
`
`·3
`
`·4· · · · · · ·THE VIDEOGRAPHER:· Please begin.
`
`·5· · · · · · · · EXAMINATION BY MR. HAIGHT
`
`·6· · · · · · ·MR. HAIGHT:· Q.· Dr. Almeroth, good
`
`·7· ·morning.
`
`·8· ·A.· · · · Good morning.
`
`·9· ·Q.· · · · Thank you for being here.· I know we've
`
`10· ·certainly had a few depositions together, but is it
`
`11· ·fair to say you've had your deposition taken a few
`
`12· ·times before?
`
`13· ·A.· · · · Yes.
`
`14· ·Q.· · · · So you're familiar with the rules of how
`
`15· ·this proceeding will go today?
`
`16· ·A.· · · · Yes.
`
`17· ·Q.· · · · Okay.· Just to remind you, I'll be asking
`
`18· ·you questions.· If any part of my question or any --
`
`19· ·if any part of my question is unclear to you, please
`
`20· ·ask me to clarify.· If you do provide an answer, I
`
`21· ·will understand that you did understand the
`
`22· ·question.· Is that fair?
`
`23· ·A.· · · · Yes.
`
`24· ·Q.· · · · If at any point today you need a break,
`
`25· ·just let us know.· The only thing I'll ask before we
`
`
`
`·1· ·break is that you -- if there's a question pending,
`
`·2· ·that you answer that question.· Is that fair?
`
`·3· ·A.· · · · Yes.
`
`·4· ·Q.· · · · Is there any reason that you are not able
`
`·5· ·to give truthful and honest testimony here this
`
`·6· ·morning?
`
`·7· ·A.· · · · No.
`
`·8· ·Q.· · · · Let me start by marking what will be
`
`·9· ·Exhibit 11.
`
`10· · · · · · ·(Whereupon Exhibit 11 was marked for
`
`11· · · · · · ·identification.)
`
`12· · · · · · ·MR. HAIGHT:· Q.· And take your time
`
`13· ·reviewing it, but my question will be if you
`
`14· ·recognize that document.
`
`15· ·A.· · · · I don't remember if I've seen this
`
`16· ·document before.
`
`17· ·Q.· · · · Okay.· Is it your understanding you're
`
`18· ·here to testify regarding your second declaration in
`
`19· ·the IPR Case No. 2014-00717?
`
`20· ·A.· · · · Yes.
`
`21· ·Q.· · · · Thank you.· You can set that aside. I
`
`22· ·don't think we need that anymore.· Let me ask you,
`
`23· ·how did you prepare for today's deposition?
`
`24· · · · · · ·MR. DISCHER:· Objection; scope.
`
`25· · · · · · ·THE WITNESS:· I reread my declaration
`
`
`
`·1· ·materials that I've cited in the declaration that
`
`·2· ·I've relied on, looked at my first declaration to
`
`·3· ·the extent it was cited in my second, met with
`
`·4· ·counsel.· And that's, I think, generally it.
`
`·5· · · · · · ·MR. HAIGHT:· Q.· How much time would you
`
`·6· ·say roughly you spent preparing for this deposition
`
`·7· ·today?
`
`·8· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·9· · · · · · ·THE WITNESS:· In total, approximately ten
`
`10· ·hours, give or take.
`
`11· · · · · · ·MR. HAIGHT:· Q.· And you mentioned you met
`
`12· ·with counsel.· Did you meet with any -- did that
`
`13· ·meeting include Mr. Discher?
`
`14· ·A.· · · · It did.
`
`15· · · · · · ·MR. DISCHER:· Objection; scope.
`
`16· · · · · · ·MR. HAIGHT:· Q.· Did you meet with anybody
`
`17· ·else for your preparation for this?
`
`18· · · · · · ·MR. DISCHER:· Objection; scope.
`
`19· · · · · · ·THE WITNESS:· I don't believe so.
`
`20· · · · · · ·MR. HAIGHT:· Q.· And how long did you meet
`
`21· ·with counsel?
`
`22· · · · · · ·MR. DISCHER:· Objection; scope.
`
`23· · · · · · ·THE WITNESS:· I believe about six hours.
`
`24· · · · · · ·MR. HAIGHT:· Let's go ahead and mark this
`
`25· ·as Exhibit 12.
`
`
`
`·1· · · · · · ·(Whereupon Exhibit 12 was marked for
`
`·2· · · · · · ·identification.)
`
`·3· · · · · · ·MR. HAIGHT:· Q.· Do you recognize what's
`
`·4· ·been handed to you as Exhibit 12?
`
`·5· ·A.· · · · I do.
`
`·6· ·Q.· · · · And that also bears the exhibit number
`
`·7· ·Samsung Exhibit 1017?
`
`·8· ·A.· · · · It does.
`
`·9· ·Q.· · · · And what is Exhibit 12 that we've marked
`
`10· ·here today?
`
`11· ·A.· · · · It's the second declaration that I've
`
`12· ·provided in this IPR, the 2014-00717 IPR, with
`
`13· ·respect to the '686 patent.
`
`14· ·Q.· · · · And if you could flip to page 22 of your
`
`15· ·declaration.
`
`16· ·A.· · · · Yes.
`
`17· ·Q.· · · · Do you see a signature there about halfway
`
`18· ·down?
`
`19· ·A.· · · · Yes.
`
`20· ·Q.· · · · Is that your signature?
`
`21· ·A.· · · · It is.
`
`22· ·Q.· · · · Sitting here today, is there anything that
`
`23· ·you are aware of in this declaration that is either
`
`24· ·inaccurate or you would want to change?
`
`25· ·A.· · · · I don't recall anything being inaccurate
`
`
`
`·1· ·or that I would change at this point.
`
`·2· ·Q.· · · · Did you personally prepare Exhibit 12?
`
`·3· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·4· · · · · · ·THE WITNESS:· I believe so.
`
`·5· · · · · · ·MR. HAIGHT:· Q.· Were there other people
`
`·6· ·involved in the preparation of this declaration?
`
`·7· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·8· · · · · · ·MR. HAIGHT:· Q.· Let me rephrase.· Were
`
`·9· ·there other people involved in the actual drafting
`
`10· ·of this declaration?
`
`11· · · · · · ·MR. DISCHER:· Objection; scope.
`
`12· ·Objection; form.
`
`13· · · · · · ·THE WITNESS:· There certainly might be
`
`14· ·sections of this that were provided to me, but
`
`15· ·ultimately all of the opinions expressed in this
`
`16· ·declaration were mine and that I've signed off on.
`
`17· ·And to be specific, for example, the last paragraph
`
`18· ·after paragraph 49, that's not something that I
`
`19· ·wrote.· This is the paragraph about how all the
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`20· ·statements are based on my own knowledge, et cetera.
`
`21· ·So I think things like that generally were not
`
`22· ·things that I had written.
`
`23· · · · · · ·MR. HAIGHT:· Q.· Okay.· And how much time
`
`24· ·did you spend in preparing and drafting this
`
`25· ·declaration?
`
`
`
`·1· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·2· · · · · · ·THE WITNESS:· I don't know that I have a
`
`·3· ·specific number.· Probably I'd say in the ballpark
`
`·4· ·of 25 hours, might be give or take.
`
`·5· · · · · · ·MR. HAIGHT:· I'm going to have the court
`
`·6· ·reporter remark this as Exhibit 2.
`
`·7· · · · · · ·(Whereupon Exhibit 2 was marked for
`
`·8· · · · · · ·identification.)
`
`·9· · · · · · ·MR. HAIGHT:· Q.· And you can review that.
`
`10· ·My question is if you recognize that document.
`
`11· · · · · · ·MR. DISCHER:· I object to the use of this
`
`12· ·declaration in -- at this point in this proceeding.
`
`13· ·This proceeding is not about Dr. Almeroth's first
`
`14· ·declaration.
`
`15· · · · · · ·MR. HAIGHT:· That's fine.· He does
`
`16· ·directly cite to this declaration in his second
`
`17· ·declaration by paragraph number and...
`
`18· · · · · · ·MR. DISCHER:· If you're going to use this
`
`19· ·first declaration for purposes of simply allowing
`
`20· ·Dr. Almeroth to review what he said in his
`
`21· ·declaration, that would be satisfactory, but what is
`
`22· ·not satisfactory is for you to start questioning
`
`23· ·Dr. Almeroth about his first declaration.
`
`24· · · · · · ·MR. HAIGHT:· And that's fair.· In the
`
`25· ·portions of his second declaration where he has
`
`
`
`·1· ·cited back to it, I may be asking questions about
`
`·2· ·that.· And this will be here for his reference on
`
`·3· ·that.
`
`·4· · · · · · ·MR. DISCHER:· Okay.· We'll make objections
`
`·5· ·as appropriate, as they may come up.· But generally
`
`·6· ·I want to lodge a general objection that any
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`·7· ·questioning to revisit Dr. Almeroth's first
`
`·8· ·declaration on substantive matters is not the
`
`·9· ·purpose of this deposition.
`
`10· · · · · · ·MR. HAIGHT:· Noted.
`
`11· · · · · · ·THE WITNESS:· So if I recall your
`
`12· ·question, yes, I do recognize this document as my
`
`13· ·first declaration in this proceeding, minus
`
`14· ·exhibits.
`
`15· · · · · · ·MR. HAIGHT:· Q.· And turning back to
`
`16· ·Exhibit 12, which is your second declaration.· In
`
`17· ·the first paragraph you state, "I confirm everything
`
`18· ·included in my First Declaration remains true and
`
`19· ·correct to the best of my knowledge."· Do you see
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`20· ·that?
`
`21· ·A.· · · · I do see that sentence.
`
`22· ·Q.· · · · Is that still your position today?
`
`23· ·A.· · · · Yes.
`
`24· · · · · · ·MR. HAIGHT:· I'd like to have this exhibit
`
`25· ·remarked as Exhibit 4.
`
`
`
`·1· · · · · · ·(Whereupon Exhibit 4 was marked for
`
`·2· · · · · · ·identification.)
`
`·3· · · · · · ·MR. HAIGHT:· And while we're at it, if you
`
`·4· ·could remark that as Exhibit 5.
`
`·5· · · · · · ·(Whereupon Exhibit 5 was marked for
`
`·6· · · · · · ·identification.)
`
`·7· · · · · · ·MR. HAIGHT:· Q.· And starting with
`
`·8· ·Exhibit 4, do you recognize that document?
`
`·9· ·A.· · · · I do.
`
`10· ·Q.· · · · And that also bears the exhibit number
`
`11· ·Samsung Exhibit 1001?
`
`12· ·A.· · · · It does.
`
`13· ·Q.· · · · What is Exhibit 4?
`
`14· ·A.· · · · That is the patent that's the subject of
`
`15· ·this IPR proceeding, Patent No. 6,108,686, also
`
`16· ·referred to as the '686 patent.
`
`17· ·Q.· · · · And just for some housekeeping, because
`
`18· ·we'll be bouncing back between these today, if you
`
`19· ·take a look at what's been handed to you as
`
`20· ·Exhibit 5.
`
`21· ·A.· · · · Yes.
`
`22· ·Q.· · · · And that also bears Samsung Exhibit 1003;
`
`23· ·is that correct?
`
`24· ·A.· · · · Yes.
`
`25· ·Q.· · · · And what is Exhibit 5?
`
`
`
`·1· ·A.· · · · Exhibit 5 is one of the prior art
`
`·2· ·references I've offered opinions about in this
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`·3· ·proceeding, patent No. 5,740,549, also called the
`
`·4· ·'549 patent or the Reilly patent.
`
`·5· ·Q.· · · · If you could turn back to your second
`
`·6· ·declaration, so Exhibit 12.· In paragraph 7 you
`
`·7· ·mention that the '686 patent doesn't describe a,
`
`·8· ·quote, "pull system."· Do you see that?
`
`·9· · · · · · ·MR. DISCHER:· Counsel, where is that?
`
`10· ·What language are you quoting?
`
`11· · · · · · ·MR. HAIGHT:· I wasn't quoting.· I was
`
`12· ·speaking generally about paragraph 7 of his second
`
`13· ·declaration.
`
`14· · · · · · ·MR. DISCHER:· Objection; mischaracterizes
`
`15· ·testimony.
`
`16· · · · · · ·THE WITNESS:· I think paragraph 7 speaks
`
`17· ·for itself.· I think generally it's criticizing the
`
`18· ·opinion that Mr. Putnam has in his description of
`
`19· ·the '686 patent as a pull system.
`
`20· · · · · · ·MR. HAIGHT:· Q.· The '686 patent does
`
`21· ·describe a -- or at least mentions a push system;
`
`22· ·isn't that correct?
`
`23· ·A.· · · · The '686 patent in the background
`
`24· ·describes push technologies and aspects of push
`
`25· ·technologies, in particular the speed of access and
`
`
`
`·1· ·the organization of the delivered information that
`
`·2· ·the '686 patent seeks to improve upon.· And I think
`
`·3· ·I've described that in some of the later paragraphs
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`·4· ·in my declaration.
`
`·5· ·Q.· · · · What is your understanding of what one of
`
`·6· ·skill in the art would understand a push technology
`
`·7· ·to be?
`
`·8· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`·9· · · · · · ·THE WITNESS:· That's a difficult question
`
`10· ·because the concept of push technology often depends
`
`11· ·on context and perspective and really what is
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`12· ·specifically meant.· I think one of the opinions
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`13· ·that I've offered in my declaration is that there
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`14· ·isn't, generally speaking, an absolute definition
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`15· ·for push technology that's applicable across, for
`
`16· ·example, all of the relevant technology.
`
`17· · · · · · ·There are examples of push technology, but
`
`18· ·then as you analyze those examples of push
`
`19· ·technology, you often find that many of the trades
`
`20· ·associated with push technology are not present or
`
`21· ·are different than what's actually in the system.
`
`22· ·So it tends to be a little bit more of a marketing
`
`23· ·concept and less of a technical term.
`
`24· · · · · · ·MR. HAIGHT:· Q.· And what would you
`
`25· ·consider to be an example of a push technology?
`
`
`
`·1· · · · · · ·MR. DISCHER:· Objection; form, scope,
`
`·2· ·foundation.
`
`·3· · · · · · ·THE WITNESS:· Well, what I can say is that
`
`·4· ·Mr. Putnam has identified a definition of push
`
`·5· ·technologies, and in the context of those examples,
`
`·6· ·again, depending on your context, they might be
`
`·7· ·examples of push technology.· But an example that I
`
`·8· ·might use of push technology, at least generally
`
`·9· ·speaking, might be something like e-mail.
`
`10· · · · · · ·But even as you analyze the technical
`
`11· ·details of the way that e-mail works, and in
`
`12· ·particular scenarios where you have clients and
`
`13· ·servers, e-mail clients and e-mail servers, in some
`
`14· ·instances it's really the e-mail client requesting
`
`15· ·any new e-mail messages from the server.· So in that
`
`16· ·sense it really is pulling the content.
`
`17· · · · · · ·So in other words, even in simple examples
`
`18· ·like e-mail that's sometimes referred to as
`
`19· ·push-based technology, it by and large has
`
`20· ·characteristics that are related to pull technology.
`
`21· ·So this goes more to the difficulty in trying to
`
`22· ·come up with formal technical definitions of exactly
`
`23· ·what push versus pull technology is.
`
`24· · · · · · ·MR. HAIGHT:· Q.· So is it your opinion
`
`25· ·that one of skill in the art, without -- well, let
`
`
`
`·1· ·me ask it this way:· Is it your opinion that one of
`
`·2· ·skill in the art would not have an understanding of
`
`·3· ·what a push system is without a specific document to
`
`·4· ·provide context?
`
`·5· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`·6· · · · · · ·THE WITNESS:· No, I don't think that's my
`
`·7· ·opinion.
`
`·8· · · · · · ·MR. HAIGHT:· Q.· Okay.· So you would agree
`
`·9· ·with me that if I were just having a conversation
`
`10· ·with one of ordinary skill in the art and I asked
`
`11· ·him if he was aware of what a push system would be,
`
`12· ·he would have an understanding?
`
`13· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`14· · · · · · ·THE WITNESS:· It depends.
`
`15· · · · · · ·MR. HAIGHT:· Q.· Depends on what?
`
`16· · · · · · ·MR. DISCHER:· Objection; scope.
`
`17· · · · · · ·THE WITNESS:· It depends on how precise of
`
`18· ·a technical definition you want.· It depends on
`
`19· ·whether you're speaking sort of at a high level.· It
`
`20· ·depends on what context you are asking the question.
`
`21· ·A person of skill in the art might believe -- or a
`
`22· ·specific individual might believe that they have a
`
`23· ·definition of what a push system is, or at least an
`
`24· ·understanding or perception, and it may not turn out
`
`25· ·to be accurate, again, depending on the context and
`
`
`
`·1· ·the technology at issue.
`
`·2· · · · · · ·And that -- that really is the crux of the
`
`·3· ·difficulty in characterizing Reilly as a push-only
`
`·4· ·system or the '686 patent as a pull-only system,
`
`·5· ·both because each of the reference discloses
`
`·6· ·embodiments or characteristics of their respective
`
`·7· ·systems that are push and pull, and also because
`
`·8· ·there isn't really absolute differences in
`
`·9· ·definitions between the terms.
`
`10· · · · · · ·MR. HAIGHT:· Q.· So in those embodiments
`
`11· ·or characteristics of the respective systems that
`
`12· ·are push and pull, would you agree with me that
`
`13· ·those individual characteristics would have to be
`
`14· ·one or the other, push or pull?
`
`15· · · · · · ·MR. DISCHER:· Objection; form, scope,
`
`16· ·incomplete hypothetical.
`
`17· · · · · · ·THE WITNESS:· No, because, again, you have
`
`18· ·to consider the system as a whole, so say a
`
`19· ·characteristic of whether or not you're making a
`
`20· ·request.· It depends on the type of request, when
`
`21· ·the request is made, how the request is made, to
`
`22· ·what device the request is made.· So even just
`
`23· ·focusing on, say, the characteristic of whether
`
`24· ·requests are made doesn't really identify that
`
`25· ·characteristic as being push-related or
`
`
`
`·1· ·pull-related.
`
`·2· · · · · · ·MR. HAIGHT:· Q.· And in a truest sense of
`
`·3· ·a pull feature, what is the request?· I'm sorry.
`
`·4· ·I'll strike that.· Let me rephrase.· In the purest
`
`·5· ·sense of a push feature, what is the request?
`
`·6· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`·7· · · · · · ·THE WITNESS:· I'm not sure what you mean
`
`·8· ·by "purest sense."
`
`·9· · · · · · ·MR. HAIGHT:· Q.· So you say that, looking
`
`10· ·at the system as a whole, there may be
`
`11· ·characteristics that are push and characteristics
`
`12· ·that are pull; is that fair?
`
`13· · · · · · ·MR. DISCHER:· Objection; form.
`
`14· · · · · · ·THE WITNESS:· No, I don't think that's
`
`15· ·quite right.· I mean, there are characteristics of a
`
`16· ·system that might be associated with being a
`
`17· ·push-style system versus a pull-style system.· But
`
`18· ·again, because there's no hard-and-fast definitions
`
`19· ·of what push and pull are, that it's more sort of
`
`20· ·characterizing a system one way versus another.
`
`21· ·Those characteristics in isolation aren't really
`
`22· ·meaningful in trying to characterize the system.
`
`23· · · · · · ·MR. HAIGHT:· Q.· So if it's not meaningful
`
`24· ·to describe something as push versus pull, why has
`
`25· ·that nomenclature creeped into these types of
`
`
`
`·1· ·systems?
`
`·2· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·3· · · · · · ·THE WITNESS:· Well, I'm not sure it's not
`
`·4· ·meaningful, but often the terms are taken relative
`
`·5· ·to each other, and in certain instances -- well, I
`
`·6· ·mean, in some instances it might identify an
`
`·7· ·alternative design philosophy.
`
`·8· · · · · · ·I would also point out that the terms were
`
`·9· ·really in favor potentially for a brief period of
`
`10· ·time.· I'm not sure we really use the terms that
`
`11· ·often today, especially if we're trying to
`
`12· ·technically describe a system.· They tend to
`
`13· ·overlap, be ambiguous, be difficult to apply.· And I
`
`14· ·think as a prime example, looking at Mr. Putnam's
`
`15· ·attempt to characterize Reilly as being a push-based
`
`16· ·system is faulty for all the reasons I've identified
`
`17· ·in my declaration, and characterizing the '686
`
`18· ·patent as a pull system is faulty for all of the
`
`19· ·reasons I've given in my declaration.
`
`20· · · · · · ·MR. HAIGHT:· Q.· Were the terms "push" and
`
`21· ·"pull" more popular, say, in March of 1998?
`
`22· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`23· · · · · · ·THE WITNESS:· "More" is a relative term.
`
`24· ·Compared to --
`
`25· · · · · · ·MR. HAIGHT:· Q.· More popular than -- you
`
`
`
`·1· ·had just said that they wouldn't be used as much
`
`·2· ·now.· Were they used more widely then?
`
`·3· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`·4· · · · · · ·THE WITNESS:· As to popularity or whether
`
`·5· ·they were used more, I -- I'm not sure I really have
`
`·6· ·an opinion on the subject.· I will say that in the
`
`·7· ·context of PointCast, in my own personal experience
`
`·8· ·with PointCast as a product -- again, separate from
`
`·9· ·the '549 patent -- it was something I took notice of
`
`10· ·because it was relevant to my research, but beyond
`
`11· ·that anecdote, it's hard for me to offer an expert
`
`12· ·opinion as to whether the terms were more popular
`
`13· ·then versus now or used more widely.
`
`14· · · · · · ·MR. HAIGHT:· Q.· And the PointCast system
`
`15· ·that you mentioned, that was widely regarded as a
`
`16· ·push-based system; is that correct?
`
`17· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`18· · · · · · ·THE WITNESS:· Not really.· I don't think I
`
`19· ·can agree with that characterization.· I know that
`
`20· ·in their press releases, they did mention that at
`
`21· ·least the implementation that they were offering as
`
`22· ·a product they characterized as a push-based system.
`
`23· ·But again, when you start to analyze it technically,
`
`24· ·some of the traits that are associated with
`
`25· ·pull-based systems, for example, making requests,
`
`
`
`·1· ·PointCast still made requests.· Whether or not
`
`·2· ·the --
`
`·3· · · · · · ·MR. HAIGHT:· Q.· Sorry.
`
`·4· ·A.· · · · -- the content was provided immediately in
`
`·5· ·response to a request or whether requests were made
`
`·6· ·at the behest of a user, there were some of those
`
`·7· ·traits, at least within the PointCast system, that
`
`·8· ·generally allowed them, from a marketing
`
`·9· ·perspective, to characterize what they were doing as
`
`10· ·a push, but yet when you do a technical analysis,
`
`11· ·many of the characteristics of the system that they
`
`12· ·actually offered as a product had pull
`
`13· ·characteristics, as well.
`
`14· · · · · · ·And let me just say finally that, again,
`
`15· ·that's drawing a distinction between PointCast as
`
`16· ·the product and a variety of embodiments and
`
`17· ·features described in the '549 patent.
`
`18· ·Q.· · · · So back up a little bit.· You mentioned
`
`19· ·that you -- fair to say you had an interest in the
`
`20· ·PointCast system when it came out because it was
`
`21· ·involved in the work you were doing?
`
`22· · · · · · ·MR. DISCHER:· Objection; scope.
`
`23· · · · · · ·MR. HAIGHT:· Q.· Is that -- I'm sorry.
`
`24· ·I'm just drawing back on something you had said
`
`25· ·about why PointCast got on your radar.
`
`
`
`·1· ·A.· · · · Right.· It wasn't involved in the work I
`
`·2· ·was doing, but there were aspects of what PointCast
`
`·3· ·was describing as part of its specific product that
`
`·4· ·were related to some of the research that I was
`
`·5· ·doing and was interested in.
`
`·6· ·Q.· · · · And so based on your knowledge of
`
`·7· ·PointCast, what sort of requests would be considered
`
`·8· ·a pull-type request in the PointCast system?
`
`·9· · · · · · ·MR. DISCHER:· Objection; form, scope,
`
`10· ·foundation.
`
`11· · · · · · ·THE WITNESS:· I'm not sure that question
`
`12· ·makes sense.· Again, you're associating a concept of
`
`13· ·pull to a characteristic like the request.
`
`14· · · · · · ·MR. HAIGHT:· Q.· Okay.· I don't mean to
`
`15· ·interrupt.· I can rephrase it if you like.
`
`16· ·A.· · · · Go ahead.
`
`17· ·Q.· · · · What types of requests were made in the
`
`18· ·PointCast system?
`
`19· · · · · · ·MR. DISCHER:· Objection; form, scope,
`
`20· ·foundation.
`
`21· · · · · · ·THE WITNESS:· So as I recall -- and I
`
`22· ·haven't gone back and checked this, largely because
`
`23· ·Mr. Putnam didn't identify any documents or
`
`24· ·description.· But when you started your PointCast
`
`25· ·client, at least as I recall, it alerted the server
`
`
`
`·1· ·that the user had come online sort of in an "I'm
`
`·2· ·alive" message.· I believe my recollection is
`
`·3· ·correct.· It's been 15 years or so.
`
`·4· · · · · · ·And then I think that there were a number
`
`·5· ·of follow-up messages, but I don't remember exactly
`
`·6· ·what those look like.
`
`·7· · · · · · ·MR. HAIGHT:· Q.· And is it your position
`
`·8· ·that an "I'm alive" or a status message is a
`
`·9· ·request?
`
`10· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`11· · · · · · ·THE WITNESS:· I mean, that's a very vague
`
`12· ·and broad question.· It could be.· I mean, depending
`
`13· ·on the context.· You could design a system where
`
`14· ·that was, in fact, the way that it operated.
`
`15· · · · · · ·MR. HAIGHT:· Q.· Do you know if PointCast
`
`16· ·operated that way?
`
`17· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`18· · · · · · ·THE WITNESS:· I don't recall the specific
`
`19· ·details.· You're into a level of detail for how the
`
`20· ·system worked --
`
`21· · · · · · ·MR. HAIGHT:· Q.· Sure.
`
`22· ·A.· · · · -- that I just don't remember.
`
`23· ·Q.· · · · In the last sentence of paragraph 7 of
`
`24· ·your second declaration, Exhibit 12, you state that,
`
`25· ·"A person of ordinary skill in the art at the time
`
`
`
`·1· ·would have understood that there is no indication in
`
`·2· ·the plain language of the claims that requires the
`
`·3· ·use of a," quote, "'pull-based searching approach,'"
`
`·4· ·end quote, "especially under the broadest reasonable
`
`·5· ·construction standard."· Do you see that?
`
`·6· ·A.· · · · I do.
`
`·7· ·Q.· · · · You don't actually provide a basis or an
`
`·8· ·explanation of why that is in your declaration; is
`
`·9· ·that true?
`
`10· · · · · · ·MR. DISCHER:· Objection; form.
`
`11· · · · · · ·THE WITNESS:· Well, I think that the
`
`12· ·declaration speaks for itself.· There might be
`
`13· ·sections in here that go into this point in a little
`
`14· ·bit more detail.· It really is also rebutting what
`
`15· ·Mr. Putnam has said.· And as I think I go into in
`
`16· ·more detail later, he hasn't identified a hook in
`
`17· ·the claims that require pull-based searching or a
`
`18· ·pull-based searching approach.
`
`19· · · · · · ·And it -- the best I can say is if you
`
`20· ·look through the claims, there's simply nothing
`
`21· ·there.· It's hard to prove a negative other than to
`
`22· ·say, "I've looked at the claim.· I don't see
`
`23· ·anything."· I don't recall Mr. Putnam saying
`
`24· ·anything that provides that hook, or else I would
`
`25· ·have provided a rebuttal to it.
`
`
`
`·1· · · · · · ·MR. HAIGHT:· Q.· Right, but you've offered
`
`·2· ·the opinion that one of skill in the art wouldn't
`
`·3· ·have understood that, correct?
`
`·4· ·A.· · · · That's correct.· If you look at the claim
`
`·5· ·language and you look at the claim language in the
`
`·6· ·concept -- in the context of the broadest reasonable
`
`·7· ·construction, I don't see any hook within any of the
`
`·8· ·claims at issue here that would implicate a
`
`·9· ·pull-based searching approach.· There simply isn't a
`
`10· ·hook or some limitation within any of the claims
`
`11· ·that require a pull-based searching approach.
`
`12· · · · · · ·And what I do describe in the rest of this
`
`13· ·declaration -- at least one of the things I
`
`14· ·recall -- is the idea that there are a fair number
`
`15· ·of disclosures in the specification itself that
`
`16· ·describe what, for example, Mr. Putnam equates as a
`
`17· ·push-based approach.· And for those reasons and for
`
`18· ·those disclosures in the '686 patent and the fact
`
`19· ·that there's nothing in any of the identified claims
`
`20· ·that excludes any of the embodiments that have
`
`21· ·concepts related to push, that's really the basis
`
`22· ·for how I reached the conclusion at the end of
`
`23· ·paragraph 7.· And I do think I go into all of those
`
`24· ·aspects in a lot more detail throughout the
`
`25· ·declaration.
`
`
`
`·1· ·Q.· · · · You would agree that claim 1 of the '686
`
`·2· ·patent requires searching, wouldn't you?
`
`·3· · · · · · ·MR. DISCHER:· Objection; form.
`
`·4· · · · · · ·THE WITNESS:· Well, the term "searching" I
`
`·5· ·don't see in the claims.· If I'm missing it, then
`
`·6· ·I'm sure you'll point it out to me.· I think the
`
`·7· ·claims have specific limitations, and what they
`
`·8· ·identify is the requirements of the rule generation
`
`·9· ·unit and the search agent.· And I think as I've
`
`10· ·indicated in my declaration, where Mr. Putnam has
`
`11· ·tried to take the definition of "search" as a noun
`
`12· ·and then combine it with "agent" to create this
`
`13· ·claim construction of "search agent" that, first of
`
`14· ·all, even within his claim construction doesn't
`
`15· ·require a pull-based searching approach, but is
`
`16· ·really problematic for all of the reasons I've
`
`17· ·identified in my declaration.
`
`18· · · · · · ·MR. HAIGHT:· Q.· In claim 1 you -- claim 1
`
`19· ·recites a set of research rules applicable to a
`
`20· ·predefined subject.· Do you see that?
`
`21· ·A.· · · · I do see that.
`
`22· ·Q.· · · · Does that indicate to you that a search is
`
`23· ·performed?
`
`24· · · · · · ·MR. DISCHER:· Objection; scope.
`
`25· · · · · · ·THE WITNESS:· Those words alone, no.
`
`
`
`·1· · · · · · ·MR. HAIGHT:· Q.· What about "retrieve
`
`·2· ·information"?· Does that indicate a search to you?
`
`·3· · · · · · ·MR. DISCHER:· Objection; scope.
`
`·4· · · · · · ·THE WITNESS:· Again, just "retrieve
`
`·5· ·information," no.· Those words by itself do not
`
`·6· ·require a search.
`
`·7· · · · · · ·MR. HAIGHT:· Q.· So what is -- what do you
`
`·8· ·understand a search to be as one of ordinary skill
`
`·9· ·in the art?
`
`10· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`11· · · · · · ·MR. HAIGHT:· Q.· Let me rephrase that.
`
`12· ·What would one of ordinary skill in the art
`
`13· ·understand the term "search" to mean?
`
`14· · · · · · ·MR. DISCHER:· Objection; scope.
`
`15· · · · · · ·THE WITNESS:· Well, I haven't set out to
`
`16· ·define what the term "search" would be in the eyes
`
`17· ·of a person of skill in the art.· I think I have
`
`18· ·opined on what a search agent is, and that's
`
`19· ·included in my declaration.· And then I've provided
`
`20· ·a variety of responses to what Mr. Putnam has
`
`21· ·attempted to do by separately using dictionary
`
`22· ·definitions of "search" and then "agent" and then
`
`23· ·trying to combine those definitions together, and
`
`24· ·why both his process is faulty and why his ultimate
`
`25· ·conclusion does not meet the broadest reasonable
`
`
`
`·1· ·construction standard.· Again, all those opinions I
`
`·2· ·think are laid out in my declaration.
`
`·3· · · · · · ·MR. HAIGHT:· Q.· Do you think it's
`
`·4· ·reasonable that one of ordinary skill in the art
`
`·5· ·having read claim 1 would understand "retrieve
`
`·6· ·information" to mean a search?
`
`·7· · · · · · ·MR. DISCHER:· Objection; form, scope.
`
`·8· · · · · · ·THE WITNESS:· That question doesn't make a
`
`·9· ·lot of sense.· Technically, if you look at
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