In The Matter Of:
`
`YAMAHA CORPORATION OF AMERICA
`v.
` BLACK HILLS MEDIA, LLC
`
` ___________________________________________________
`
`V. MICHAEL BOVE, JR. - Vol. 1
`January 16, 2015
`
` ___________________________________________________
`
`
`
`
`IPR2014-00733 BHM Ex. 2004
`
`

`

` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE TRIAL AND APPEAL BOARD
`
` Nos. IPR2014-00733, IPR2014-00766
`
`Page 1
`
`- - - - - - - - - - - - - - - - - - X
`
`YAMAHA CORPORATION OF AMERICA,
`
` Petitioner,
`
` v.
`
`BLACK HILLS MEDIA, LLC,
`
` Patent Owner.
`
`- - - - - - - - - - - - - - - - - - X
`
` VOLUME I Pages 1-125
`
` VIDEOTAPED DEPOSITION OF V. MICHAEL BOVE, JR., Ph.D.
`
` Friday, January 16, 2015, 9:48 a.m.
`
` Pepper Hamilton LLP
`
` 125 High Street
`
` Boston, Massachusetts 02110
`
` ------ Reporter: Kimberly A. Smith, CRR, RDR ------
`
` Realtime Systems Administrator
`
` Merrill Legal Solutions
`
`IPR2014-00733 BHM Ex. 2004
`
`

`

`V. MICHAEL BOVE, JR. - 1/16/2015
`
`Page 2
`
`Page 4
`
`1 EXHIBITS FOR IDENTIFICATION: (continued)
`2 Bove Description Page
`3 Exhibit 9 U.S. Patent 7,472,353 94
`4 Exhibit 10 5/29/14 witness's excerpted 77
`5 testimony, pages 174-181
`6 Exhibit 11 U.S. Patent 6,622,018 105
`7 Exhibit 12 U.S. Patent Application 110
`8 2001/0044321
`9 Exhibit 13 U.S. Patent Application
`10 2002/0173339 113
`11 Exhibit 14 5/29/14 witness's excerpted 107
`12 testimony, pages 178-193
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23 Original Exhibits 1-5 and 7-14 returned to Pepper
`24 Hamilton
`
`1 APPEARANCES:
`
`2 3
`
` Morrison & Foerster LLP
`4 By: Martin M. Noonen, Esq.
`5 707 Wilshire Boulevard
`6 Los Angeles, CA 90017-3543
`7 (213) 892-5764
`8 mnoonen@mofo.com
`9 for the Petitioner;
`10
`11 Pepper Hamilton LLP
`12 By: Lana A. Gladstein, Esq.
`13 and George S. Haight, IV, Esq.
`14 19th Floor, High Street Tower
`15 125 High Street
`16 Boston, MA 02110-2736
`17 (617) 204-5100
`18 gladsteinl@pepperlaw.com
`19 haightg@pepperlaw.com
`20 for the Patent Owner.
`21
`22 Also Present: Shawn Budd, Videographer
`23
`24
`
`Page 3
`
`Page 5
`
`1 THE VIDEOGRAPHER: We are on the record.
`2 This is the video operator speaking, Shawn Budd,
`3 with Merrill Legal Solutions. Today's date is
`4 January 16, 2015, and the time is 9:49 a.m.
`5 We are here at the offices of Pepper
`6 Hamilton, Boston, Massachusetts, to take the video
`7 deposition of V. Michael Bove, Ph.D., in the matter
`8 of Yamaha Corporation of America vs. Black Hills
`9 Media, LLC.
`10 Would counsel please introduce
`11 themselves.
`12 MS. GLADSTEIN: Lana Gladstein of Pepper
`13 Hamilton on behalf of patentholder, Black Hills
`14 Media, LLC; and with me is George Haight of Pepper
`15 Hamilton.
`16 MR. NOONEN: Martin Noonen of Morrison &
`17 Foerster on behalf of petitioner, Yamaha Corporation
`18 of America.
`19 THE VIDEOGRAPHER: And the court
`20 reporter is Kim Smith. Would you please swear in
`21 the witness.
`22 V. MICHAEL BOVE, JR., Ph.D.,
`23 having been satisfactorily identified by the
`24 production of his driver's license, and
`
`1 I N D E X
`
` WITNESS: V. Michael Bove, Jr., Ph.D.
`
`2 3
`
`4 5
`
` EXAMINATION Page
`6 By Ms. Gladstein 6
`7 AFTERNOON SESSION
`8 By Ms. Gladstein 64
`9
`10 EXHIBITS FOR IDENTIFICATION:
`11 Bove Description Page
`12 Exhibit 1 Deposition notice re 6
`13 IPR2014-00733
`14 Exhibit 2 Deposition notice re 6
`15 IPR2014-00766
`16 Exhibit 3 Witness's 6/4/13 declaration 7
`17 re '356 patent
`18 Exhibit 4 U.S. Patent 8,458,356 20
`19 Exhibit 5 Witness's 7/3/12 declaration 8
`20 re '873 patent
`21 Exhibit 6 Marked, but withdrawn 120
`22 Exhibit 7 U.S. Patent 6,502,194 21
`23 Exhibit 8 U.S. Patent Application 69
`24 2002/0087996
`
`617-542-0039
`
`Merrill Corporation - Boston
`www.merrillcorp.com/law
`
`2 (Pages 2 to 5)
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`IPR2014-00733 BHM Ex. 2004
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`V. MICHAEL BOVE, JR. - 1/16/2015
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`Page 6
`
`Page 8
`
`1 duly sworn by the court reporter, was deposed
`2 and testified as follows:
`3 EXAMINATION
`4 BY MS. GLADSTEIN:
`5 Q. Good morning, Dr. Bove.
`6 A. Good morning.
`7 (Bove Exhibit 1 was marked
`8 for identification.)
`9 BY MS. GLADSTEIN:
`10 Q. I am handing you what's been marked as
`11 Exhibit 1.
`12 Have you seen this document before?
`13 A. Yes.
`14 Q. And what is this document?
`15 A. This is a notice of deposition with respect
`16 to the '356 patent.
`17 (Bove Exhibit 2 was marked
`18 for identification.)
`19 BY MS. GLADSTEIN:
`20 Q. And let me hand you what has been marked as
`21 Exhibit 2.
`22 Do you recognize this document?
`23 A. I do.
`24 Q. What is it?
`
`1 Q. And does page 12, which is the last page of
`2 this document, bear your signature?
`3 A. It does.
`4 Q. I also note that that page has a stamp of
`5 "Yamaha Corporation of America, Exhibit 1002,
`6 page 13."
`7 MR. NOONEN: I just note that the
`8 declaration as filed included, I think, his CV as an
`9 exhibit. So this is, I guess, a partial of that
`10 declaration.
`11 MS. GLADSTEIN: I'm glad you're bringing
`12 that up, counsel, because as this document was posted
`13 on the PTAB portal, there is no Attachment A --
`14 MR. NOONEN: Oh.
`15 MS. GLADSTEIN: -- with this document.
`16 So I was going to ask you off the record, but this
`17 is fine.
`18 MR. NOONEN: Let me look into that.
`19 MS. GLADSTEIN: Okay.
`20 (Bove Exhibit 5 was marked
`21 for identification.)
`22 BY MS. GLADSTEIN:
`23 Q. Let me show you for identification, what
`24 has been marked as Exhibit 5.
`
`Page 7
`
`Page 9
`
`1 A. This is a notice of deposition for the
`2 '873 patent.
`3 Q. And do you have an understanding as to why
`4 you're here today?
`5 A. I do.
`6 Q. And what is that understanding?
`7 A. Well, again, not speaking from a legal
`8 perspective, but simply from an expert witness
`9 perspective, my understanding is that I am to be
`10 deposed on two declarations that I wrote in May of
`11 2014 regarding the two patents.
`12 Q. Thank you. Is there anything that would
`13 preclude your testifying truthfully here today?
`14 A. None that I'm aware of.
`15 (Bove Exhibit 3 was marked
`16 for identification.)
`17 BY MS. GLADSTEIN:
`18 Q. Great. Let me show you what has been
`19 marked as Exhibit 3.
`20 Do you recognize that document?
`21 A. I do.
`22 Q. And what is that document?
`23 A. This is a declaration that I prepared on
`24 May 6, 2014 regarding the '356 patent.
`
`1 MR. NOONEN: Is this 4 or 5?
`2 MS. GLADSTEIN: 5. We're skipping 4 for
`3 now.
`4 BY MS. GLADSTEIN:
`5 Q. Do you recognize this document?
`6 A. I do.
`7 Q. And what is this document?
`8 A. This is a declaration that I prepared on
`9 May 16, 2014, regarding the '873 patent, in
`10 particular, four claims of the '873 patent.
`11 And this one does, I will note, include my CV as
`12 an appendix.
`13 Q. And does page 13 of the document, not the
`14 Yamaha Corporation of America stamp, the actual
`15 document, does that bear your signature?
`16 A. I believe that is page 14 that bears my
`17 signature.
`18 Q. That is page 14 on the stamp --
`19 A. Oh, yes, I'm sorry.
`20 Q. -- of Yamaha Corporation of America.
`21 A. Page 13 in the document numbering bears my
`22 signature.
`23 Q. Right. So these are the two declarations
`24 that you referred to earlier that you will be
`
`617-542-0039
`
`Merrill Corporation - Boston
`www.merrillcorp.com/law
`
`3 (Pages 6 to 9)
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`V. MICHAEL BOVE, JR. - 1/16/2015
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`Page 10
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`Page 12
`
`1 testifying about today?
`2 A. That is my understanding, yes.
`3 Q. Very good. So Dr. Bove, you were deposed
`4 in connection with another two Yamaha IPR petitions
`5 earlier in 2014; isn't that right?
`6 A. Yes.
`7 Q. And do you recall your deposition?
`8 A. I do.
`9 Q. Or depositions in those cases. Okay.
`10 So since -- I will represent for the
`11 record the depositions in those cases occurred on
`12 May 29 and May 30 of 2014. So since May 29 and
`13 May 30 of 2014, have you been deposed -- up until
`14 today, have you been deposed?
`15 A. In this matter or in any matter?
`16 Q. In any matter.
`17 A. Yes. I was deposed in September in another
`18 matter, which is now settled, I understand.
`19 Q. Is that a patent matter?
`20 A. It was.
`21 Q. Do you remember the case caption?
`22 A. I don't remember the case caption.
`23 I remember that that was a case in which I was
`24 working for Hulu.
`
`1 depending upon the date on which the contract is
`2 signed. So there isn't a specific date when all of
`3 the members pay.
`4 BY MS. GLADSTEIN:
`5 Q. Do you have an understanding whether
`6 Samsung paid their 2014 annual membership fee?
`7 MR. NOONEN: Objection. Relevance.
`8 THE WITNESS: Well, as I said, it's not
`9 based on a calendar year or fiscal year. It's based
`10 upon simply maintaining membership by paying each
`11 year on or around the anniversary date of the
`12 contract signing. I'm not aware of what that date
`13 is. So I don't know that the phrase "2015
`14 membership" is actually meaningful in that context.
`15 BY MS. GLADSTEIN:
`16 Q. But it's your understanding that they are
`17 in good standing?
`18 MR. NOONEN: Objection. Relevance.
`19 THE WITNESS: It is my understanding
`20 that Samsung is a member in good standing of the
`21 media laboratory.
`22 BY MS. GLADSTEIN:
`23 Q. Is Yamaha a member of the media lab?
`24 A. They are not at this time.
`
`Page 11
`
`Page 13
`
`1 Q. Google?
`2 A. Hulu, H-u-l-u.
`3 Q. Oh, Hulu. Okay. Do you recall in the
`4 deposition that you had on behalf of Yamaha
`5 Corporation in the other two IPRs involving the '873
`6 and the '099 patents, you testified about Samsung
`7 being a member of the MIT Media Lab?
`8 A. Yes.
`9 Q. And I believe you testified that they have
`10 an annual membership fee obligation and a three-year
`11 commitment with the media lab?
`12 A. Well, it's a minimum three-year commitment.
`13 I don't know what the end date is on the contract
`14 that they currently have.
`15 Q. In 2014, did Samsung pay its annual
`16 membership fee?
`17 A. I -- That would be a question I'd have to
`18 send to MIT's accounts receivable. But inasmuch as
`19 I understand that they are still a member in good
`20 standing, I think I can assume that they paid.
`21 Q. And typically, when is the membership fee
`22 due?
`23 MR. NOONEN: Objection. Relevance.
`24 THE WITNESS: The membership fee is due,
`
`1 Q. What about LG?
`2 A. LG --
`3 MR. NOONEN: Objection. Relevance.
`4 THE WITNESS: LG is a member of the
`5 media lab at this time.
`6 BY MS. GLADSTEIN:
`7 Q. And the annual membership fee for Samsung
`8 is still $250,000 --
`9 MR. NOONEN: Objection.
`10 BY MS. GLADSTEIN:
`11 Q. -- a year?
`12 MR. NOONEN: Objection. Relevance.
`13 THE WITNESS: That is the minimum amount
`14 to be a member of the media lab consortium. I'm not
`15 aware of the precise amount that Samsung is paying
`16 this year.
`17 BY MS. GLADSTEIN:
`18 Q. So it could be more than that?
`19 A. It could indeed be more than that.
`20 Q. And what's the maximum that a member would
`21 pay?
`22 MR. NOONEN: Objection. Relevance.
`23 THE WITNESS: There is no maximum.
`24
`
`617-542-0039
`
`Merrill Corporation - Boston
`www.merrillcorp.com/law
`
`4 (Pages 10 to 13)
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`V. MICHAEL BOVE, JR. - 1/16/2015
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`Page 14
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`Page 16
`
`1 BY MS. GLADSTEIN:
`2 Q. What's the range of membership fees?
`3 MR. NOONEN: Objection. Relevance.
`4 THE WITNESS: We have had members pay
`5 more than $1 million a year.
`6 BY MS. GLADSTEIN:
`7 Q. And what is the criteria that affects the
`8 amount of the membership fee?
`9 MR. NOONEN: Objection. Relevance.
`10 THE WITNESS: There are a variety of
`11 different ways in which members can pay money above
`12 and beyond their base consortium membership.
`13 They may, for example, provide
`14 fellowships to support particular graduate students.
`15 They may pay to be part of a smaller initiative or a
`16 special interest group which is doing a deep dive
`17 into a particular area of inquiry. They may pay to
`18 support materials and services or equipment costs
`19 associated with a particular project where they have
`20 an interest. They may pay to endow a chair. They
`21 may pay for a variety of other reasons.
`22 BY MS. GLADSTEIN:
`23 Q. Do you know what LG's annual membership fee
`24 is?
`
`1 Electronics Show last week. Some of our alumni, in
`2 fact, are Samsung personnel. And I met with several
`3 of them because there was an alumni reception at the
`4 Consumer Electronics Show.
`5 In no case, however, was the subject of
`6 these IPRs brought up. It was simply talking about
`7 media lab business.
`8 Q. Turning our attention to IPR2014-00733 and
`9 IPR2014-00766 --
`10 A. Might I request, as I did last time, that --
`11 so that we're all on the same page -- we refer to
`12 these as the '356 IPR and the '873 IPR? Or at least
`13 I'll reserve the right to refer to them in that way.
`14 MR. NOONEN: There's so many three-digit
`15 numbers flowing around, it's kind of confusing.
`16 THE WITNESS: I'd rather just refer to
`17 them using the patent numbers rather than the IPR
`18 numbers, by my . . .
`19 MS. GLADSTEIN: We didn't do that last
`20 time. We referred to the patents and we didn't
`21 really refer to the IPR number. I think if we
`22 called them -- you know if I say IPR when it's a 733
`23 IPR, I think it would just be very, very confusing.
`24 Why don't we just refer to the
`
`Page 15
`
`Page 17
`
`1 MR. NOONEN: Objection. Relevance.
`2 THE WITNESS: I am not aware of how much
`3 they're paying at this point.
`4 BY MS. GLADSTEIN:
`5 Q. But it would be at least $250,000?
`6 MR. NOONEN: Objection. Relevance.
`7 THE WITNESS: That would be my
`8 understanding.
`9 BY MS. GLADSTEIN:
`10 Q. And the membership carries a minimum of a
`11 three-year commitment?
`12 MR. NOONEN: Objection. Relevance.
`13 THE WITNESS: Yes. That is the general
`14 policy. Although contracts are written for varying
`15 periods of time.
`16 BY MS. GLADSTEIN:
`17 Q. Since the last deposition in May -- the end
`18 of May, May 29 and 30, did you have any meetings
`19 with Samsung's personnel?
`20 A. Yes.
`21 Q. And how many meetings did you have?
`22 A. Samsung's personnel have attended events at
`23 the media laboratory. There were some Samsung
`24 personnel with whom I met at the Consumer
`
`1 declaration for the '356 patent, the declaration for
`2 it.
`3 THE WITNESS: That will accomplish the
`4 same thing. Thank you.
`5 MR. NOONEN: How about, if I sense any
`6 confusion, can I chime in just to hopefully clarify
`7 for the record? I'm not trying to coach or anything,
`8 but I know how the numbers can get confusing.
`9 MS. GLADSTEIN: Absolutely. I think we
`10 would all want the record to be clear, right?
`11 MR. NOONEN: Yes.
`12 BY MS. GLADSTEIN:
`13 Q. So I was just stating for the record, let's
`14 turn our attention to the IPRs at issue here, which
`15 are IPR2014-00733 and IPR2014-00766.
`16 When were you first contacted in
`17 connection with your work on these IPRs?
`18 A. Well, I will start by noting that I was
`19 already involved in prior IPRs involving either
`20 related or the same patents as in this case.
`21 And so this was a direct outgrowth of
`22 that other work. And counsel at Morrison & Foerster
`23 asked me, would I be willing to prepare additional
`24 declarations inasmuch as I was already familiar with
`
`617-542-0039
`
`Merrill Corporation - Boston
`www.merrillcorp.com/law
`
`5 (Pages 14 to 17)
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`V. MICHAEL BOVE, JR. - 1/16/2015
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`Page 18
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`Page 20
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`1 the subject matter, familiar with much of the prior
`2 art as a result of my other work. I don't know
`3 precisely when that conversation took place.
`4 Q. Do you remember who the counsel was that
`5 asked you whether you would be willing to provide
`6 additional declarations?
`7 A. David Fehrman and Alex Yap.
`8 Q. Did you have any in-person meetings with
`9 counsel in connection with these IPRs?
`10 A. Well, I've certainly had an in-person
`11 meeting with counsel present today. However, during
`12 the period that I was preparing these declarations,
`13 we conducted all of our conversations by telephone.
`14 Q. And when did the in-person meeting with
`15 counsel sitting here occur?
`16 A. Yesterday and this morning.
`17 Q. And there were no prior in-person meetings
`18 with counsel sitting here today?
`19 A. No.
`20 Q. And the meetings that you had with counsel
`21 were in connection with preparing for your
`22 deposition?
`23 A. The meetings with Mr. Noonen were in
`24 connection with preparing for today's deposition,
`
`1 would be reflected in the bills that I would have
`2 submitted in May or June to Morrison & Foerster.
`3 Q. And what was the hourly rate for your work?
`4 A. $650.
`5 Q. Did you bring any documents with you today?
`6 A. Yes.
`7 Q. And what documents did you bring?
`8 A. I have copies of my declarations.
`9 Q. Anything else?
`10 A. I have my calendar book.
`11 Q. Anything else?
`12 A. No. I think that's it.
`13 Q. And is there any notation on the copies of
`14 your declarations?
`15 A. No.
`16 Q. So they're clean copies?
`17 A. They are.
`18 (Bove Exhibit 4 was marked
`19 for identification.)
`20 BY MS. GLADSTEIN:
`21 Q. Let me hand you what has been marked
`22 Exhibit 4.
`23 Have you seen this document before?
`24 A. I have.
`
`Page 19
`
`Page 21
`
`1 yes.
`2 Q. So how did you go about preparing for
`3 today's deposition?
`4 MR. NOONEN: I'd just like to object to
`5 the line of questioning about how -- I'm sorry.
`6 Deposition?
`7 MS. GLADSTEIN: I'll repeat the question.
`8 MR. NOONEN: I'll withdraw the objection.
`9 I'm sorry.
`10 BY MS. GLADSTEIN:
`11 Q. How did you go about preparing for today's
`12 deposition?
`13 A. I reviewed the declarations. I reviewed
`14 materials cited in the declarations. And I also
`15 reviewed some filings by petitioner and patent
`16 holder that have issued since the date of these
`17 declarations.
`18 Q. Approximately about how many hours did you
`19 spend in connection with your declarations on the
`20 '873 and '356 patents in these cases? And by
`21 "these," I mean IPR2014-733 and 766.
`22 A. I did not review my billing records from
`23 last May and June in preparation for today, so I
`24 don't have a precise figure for that. But that
`
`1 Q. And what is this document?
`2 A. This document is the '356 patent to Martin
`3 Weel.
`4 Q. And is this the patent that is the subject
`5 of your declaration in the IPR2014-00733?
`6 A. Yes, it is.
`7 MR. NOONEN: Can we go off the record
`8 just for a second.
`9 MS. GLADSTEIN: Sure.
`10 THE VIDEOGRAPHER: The time is
`11 11 minutes after 10:00. We're off the record.
`12 (Recess at 10:09 a.m.,
`13 resumed at 10:10 a.m.)
`14 THE VIDEOGRAPHER: We are back on the
`15 record. The time is 11 minutes after 10:00.
`16 (Bove Exhibit 7 was marked
`17 for identification.)
`18 BY MS. GLADSTEIN:
`19 Q. Dr. Berman [sic], I'm handing you what has
`20 been marked as Exhibit 7.
`21 Do you recognize this document?
`22 A. I do.
`23 Q. What is it?
`24 A. This is a Patent '194 to Berman, et al.
`
`617-542-0039
`
`Merrill Corporation - Boston
`www.merrillcorp.com/law
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`6 (Pages 18 to 21)
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`V. MICHAEL BOVE, JR. - 1/16/2015
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`Page 22
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`Page 24
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`1 Q. And when was the last time that you've seen
`2 this document?
`3 A. I believe sometime in the past week.
`4 Q. And it is also the same patent to Berman
`5 that was involved in the IPR in connection with
`6 the '099 patent?
`7 A. That is my recollection, yes.
`8 Q. What is shown in Figure 1 of Berman?
`9 A. Figure 1 shows a block diagram of a
`10 playback unit, which is the playback unit of the
`11 claimed invention.
`12 Q. Of the claimed invention in Berman?
`13 A. In Berman, yes.
`14 Q. Is that the only thing that's shown in
`15 Figure 1?
`16 A. Well, it also shows a network connection.
`17 And it shows two servers, two remote servers on the
`18 network, as well as a connection to a home audio
`19 system.
`20 Q. And what kind of connection is there with
`21 the home audio system?
`22 A. Well, there's a discussion of the
`23 connection that begins at the bottom of Column 5 at
`24 line 65, where it says that the information is
`
`1 wire connection, then I would think that the second
`2 example could encompass a variety of kinds of
`3 connections.
`4 Q. Could you please look at Figure 2 and tell
`5 me what is illustrated in that figure.
`6 A. Figure 2 is the display and also the
`7 control buttons which make up the user interface of
`8 the playback unit in Figure 1.
`9 Q. And does Berman provide an illustration of
`10 a remote control?
`11 A. The remote control is discussed, for
`12 example, in Column 5, starting at line 46. And it
`13 says that "The playback unit may also include a
`14 sensor, such as an infrared sensor 206, for receiving
`15 command signals from a remote control unit (not
`16 illustrated)."
`17 So it is discussed, but it is
`18 specifically said that there is no illustration
`19 provided of it.
`20 Q. So what is your understanding of the type
`21 of the remote control unit contemplated by Berman?
`22 A. I don't see that the specification of this
`23 patent or the claims has put any bounds on what kind
`24 of remote control might be used.
`
`Page 23
`
`Page 25
`
`1 provided to the home audio system in a format that
`2 can be used by that system. And then it provides
`3 some examples at the beginning of Column 6.
`4 Q. And what are those examples?
`5 A. It says it "can comprise" -- and here I'm
`6 reading directly from the top of Column 6 -- "for
`7 example, can comprise a direct wire connection to
`8 home audio loudspeakers that receive an analog
`9 signal, or can be a connection to a signal
`10 processor, receiver, or other control and/or
`11 amplification device for playback using the
`12 loudspeakers of the home audio system."
`13 Q. Does it disclose a remote connection to the
`14 playback unit of the home audio system?
`15 A. Could you clarify the question. Do you
`16 mean that there's a remote control involved?
`17 Q. No. Can the home audio system be connected
`18 to the playback unit remotely, not hardwired?
`19 A. Well, the sentence that I've just read
`20 provides two examples. It says it "can comprise a
`21 direct wire connection . . . or can be a connection."
`22 And the second mention of "connection" does not say
`23 what kind of connection that encompasses.
`24 But given that it's opposed to a direct
`
`1 Q. Does the specification provide the
`2 description of the remote control aside from what
`3 you read into the record at Column 5, lines 46
`4 through 49?
`5 A. I think the language that I cite is the
`6 only discussion of the remote control.
`7 Q. In looking at -- Strike that.
`8 So would it be fair to say that the
`9 remote control contemplated in Berman would have
`10 functionality identical to the one displayed --
`11 illustrated in Figure 2 of Berman?
`12 MR. NOONEN: Objection. Form.
`13 THE WITNESS: I would expect a remote
`14 control for Berman to be able to control the
`15 functionality in the same way as what's illustrated
`16 in Figure 2.
`17 BY MS. GLADSTEIN:
`18 Q. Berman's remote control unit cannot access
`19 the Internet without the playback unit 100; isn't
`20 that right?
`21 MR. NOONEN: Objection. Form.
`22 THE WITNESS: That's -- that depends on
`23 what's being used as the remote control. If the
`24 remote control is something like a PDA that has
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`1 infrared and also WiFi or bluetooth, it could.
`2 BY MS. GLADSTEIN:
`3 Q. But Berman does not contemplate such an
`4 embodiment in its specification, does he?
`5 A. Berman does not give that level of detail
`6 about what could be used as a remote control.
`7 Q. And there is no language in the
`8 specification that says the remote control could
`9 also access an audio material server on its own
`10 without the playback unit; is that right?
`11 A. There is no such disclosure in the
`12 specification.
`13 Q. And there is no disclosure in the
`14 specification that Berman's unit can access the
`15 Internet without the playback unit 100?
`16 A. There is no such disclosure in the
`17 specification.
`18 Q. And there is also no disclosure in Berman
`19 that Berman's remote control can play music by
`20 itself?
`21 A. There is no such disclosure in the
`22 specification.
`23 Q. So Berman's remote control cannot render
`24 sound?
`
`1 THE WITNESS: Berman does not describe
`2 that kind of operation.
`3 BY MS. GLADSTEIN:
`4 Q. Now, Berman references a term "song list";
`5 isn't that right?
`6 A. Well, Berman in multiple places describes
`7 what I take to be the same thing. So in some cases,
`8 it's just described as a "list." In, for example,
`9 Column 7, it is described as a "song list." It's
`10 not a consistent term throughout the patent
`11 specification. But I take it to mean the same list.
`12 Q. Is Berman's song list arranged to be played
`13 in a sequence?
`14 A. The song list described in Berman being a
`15 list appears in an order. And indeed, the fact that
`16 there is a button 220 which skips to the next song
`17 in the list implies that there is a meaningful order
`18 to that list. But it is a list from which selections
`19 can be made.
`20 Q. Is it a list that will be played in
`21 sequence of one after another?
`22 A. I believe it can be played in a sequence or
`23 it can be played in a random order, or it simply can
`24 be selected from. So it can be thought of as a
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`1 A. Well, I wouldn't say that Berman's remote
`2 control cannot render sound. I would say that there
`3 is no disclosure of the remote control that talks to
`4 the playback unit rendering sound.
`5 Q. And does Berman describe a remote control
`6 that can receive music?
`7 A. There is no such disclosure in the
`8 specification.
`9 Q. So would it be fair to say that Berman's
`10 remote control, as described in the Berman
`11 reference, which is Exhibit 7, is merely an
`12 extension of the display component 112 of the
`13 playback unit 100?
`14 MR. NOONEN: Objection. Form.
`15 THE WITNESS: Well, I think it would be
`16 fair to say that it provides a remote way of
`17 controlling the same functionality as provided in
`18 the display and buttons in Figure 2.
`19 BY MS. GLADSTEIN:
`20 Q. But Berman does not contemplate for the
`21 remote control to have independent capability to,
`22 for example, go out to the Internet and obtain media
`23 content?
`24 MR. NOONEN: Objection. Form.
`
`1 catalog from which one is selecting particular songs.
`2 Q. So is Berman's song list the same as a
`3 playlist?
`4 MR. NOONEN: Objection. Asked and
`5 answered to the extent the questions about Berman
`6 were asked in the prior deposition. I just want to
`7 object to the whole line of questioning that is
`8 repetitive of questions asked and answered in the
`9 prior deposition.
`10 THE WITNESS: Well, if we understand
`11 that a playlist is a list of media selections, then
`12 the song list in Berman is that sort of playlist.
`13 BY MS. GLADSTEIN:
`14 Q. And if the playlist means a list of media
`15 items arranged to be played in a sequence, does
`16 Berman meet that definition?
`17 MR. NOONEN: Objection. Foundation.
`18 THE WITNESS: The song list in Berman
`19 can be played in a sequence.
`20 BY MS. GLADSTEIN:
`21 Q. Is Berman's song list a list of media items
`22 arranged to be played in a sequence?
`23 A. It's a list of media selections that can be
`24 played in a sequence.
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`617-542-0039
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`1 Q. What is the difference, in your mind,
`2 between media selections and media items?
`3 A. I think the difference is really minimal.
`4 It's a function of what the user and the player are
`5 going to do with it.
`6 Q. How do you mean?
`7 A. I mean that a list of media items that is
`8 never presented to a user can't be a list of media
`9 selections. But if it is presented through a user
`10 interface to a user such that selections can be
`11 made, then it becomes a list of media selections.
`12 Q. So does the playlist contain media
`13 selections?
`14 A. If we are talking about a playlist as the
`15 board has construed that term in the patents for
`16 which they have construed it, then, yes.
`17 Q. Well, let me clarify. We're talking about
`18 a playlist as would be understood by one of ordinary
`19 skill in the art and as a playlist would be used
`20 ordinarily in the art.
`21 MR. NOONEN: Objection. Form and
`22 foundation.
`23 THE WITNESS: Just to be clear --
`24 MS. GLADSTEIN: I'm clarifying.
`
`1 include things other than songs.
`2 Q. Generally, is there a difference between a
`3 playlist and a song list?
`4 MR. NOONEN: Objection. Form.
`5 THE WITNESS: Well, a song list would be
`6 a subset of a playlist, as we're using the term
`7 "playlist" today.
`8 BY MS. GLADSTEIN:
`9 Q. So if I were to search for a playlist,
`10 would I get back a song list?
`11 MR. NOONEN: Objection. Form.
`12 THE WITNESS: I think that question is
`13 incomplete because I don't know where or how you're
`14 doing the searching.
`15 BY MS. GLADSTEIN:
`16 Q. Let's take it in two scenarios. If I am
`17 searching my local database on a computer of audio
`18 files and I'm searching for a playlist, what would I
`19 get back?
`20 A. If you are searching for a playlist and the
`21 database contains only audio files, then I think
`22 that would be a song list as understood in the
`23 '194 patent.
`24 Q. So would my query be returned as an
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`1 THE WITNESS: Sorry. Just to b