·1· · · · · ·UNITED STATES PATENT AND TRADEMARK OFFICE
`· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`·2
`
`·3· ·ERICCSON, INC. AND· · · · · · ·§
`· · ·TELEFONAKTIEBOLAGET,· · · · · ·§
`·4· ·LM ERICSSON,· · · · · · · · · ·§
`· · · · ·Petitioner,· · · · · · · · §
`·5· · · · · · · · · · · · · · · · · §
`· · ·VS.· · · · · · · · · · · · · · §· · ·CASE IPR2014-01195
`·6· · · · · · · · · · · · · · · · · §· · ·PATENT NO. 7,787,431
`· · · · · · · · · · · · · · · · · · §
`·7· ·INTELLECTUAL VENTURES II, LLC. §
`· · · · ·Patent Owner.· · · · · · · §
`·8
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`·9
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`10· · · · ·*********************************************
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`11· · · · · · · ORAL AND VIDEOTAPED DEPOSITION OF
`
`12· · · · · · · · · · · ZYGMUNT HAAS, Ph.D.
`
`13· · · · · · · · · · · · ·APRIL 9, 2015
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`14· · · · ·*********************************************
`
`15
`
`16· · · ·ORAL AND VIDEOTAPED DEPOSITION of ZYGMUNT HAAS,
`
`17· ·Ph.D., produced as a witness at the instance of the Patent
`
`18· ·Owner and duly sworn, was taken in the above-styled and
`
`19· ·-numbered cause on the 9th of April, 2015, from 9:11 a.m.
`
`20· ·to 4:10 p.m., before Melisa Duncan, CSR in and for the
`
`21· ·State of Texas, reported by machine shorthand, at the
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`22· ·offices of Haynes & Boone, 2505 North Plano Road,
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`23· ·Suite 4000, Richardson, Texas, in accordance with the
`
`24· ·Federal Rules of Civil Procedure and agreement hereinafter
`
`25· ·set forth.
`
`
`· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`·2
`
`·3· ·ERICCSON, INC. AND· · · · · · ·§
`· · ·TELEFONAKTIEBOLAGET,· · · · · ·§
`·4· ·LM ERICSSON,· · · · · · · · · ·§
`· · · · ·Petitioner,· · · · · · · · §
`·5· · · · · · · · · · · · · · · · · §
`· · ·VS.· · · · · · · · · · · · · · §· · ·CASE IPR2014-01195
`·6· · · · · · · · · · · · · · · · · §· · ·PATENT NO. 7,787,431
`· · · · · · · · · · · · · · · · · · §
`·7· ·INTELLECTUAL VENTURES II, LLC. §
`· · · · ·Patent Owner.· · · · · · · §
`·8
`
`·9
`
`10· · · · ·*********************************************
`
`11· · · · · · · ORAL AND VIDEOTAPED DEPOSITION OF
`
`12· · · · · · · · · · · ZYGMUNT HAAS, Ph.D.
`
`13· · · · · · · · · · · · ·APRIL 9, 2015
`
`14· · · · ·*********************************************
`
`15
`
`16· · · ·ORAL AND VIDEOTAPED DEPOSITION of ZYGMUNT HAAS,
`
`17· ·Ph.D., produced as a witness at the instance of the Patent
`
`18· ·Owner and duly sworn, was taken in the above-styled and
`
`19· ·-numbered cause on the 9th of April, 2015, from 9:11 a.m.
`
`20· ·to 4:10 p.m., before Melisa Duncan, CSR in and for the
`
`21· ·State of Texas, reported by machine shorthand, at the
`
`22· ·offices of Haynes & Boone, 2505 North Plano Road,
`
`23· ·Suite 4000, Richardson, Texas, in accordance with the
`
`24· ·Federal Rules of Civil Procedure and agreement hereinafter
`
`25· ·set forth.
`
`
`
`·1· · · · · · · · · · ·A P P E A R A N C E S
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`·2· ·FOR THE PETITIONER:
`
`·3· · · ·John Russell Emerson
`· · · · ·russ.emerson@haynesboone.com
`·4· · · ·HAYNES AND BOONE, LLP
`· · · · ·2323 Victory Avenue, Suite 700
`·5· · · ·Dallas, Texas 75219
`· · · · ·214.651.5328
`·6
`
`·7· · · ·J. Andrew Lowes
`· · · · ·andrew.lowes@haynesboone.com
`·8· · · ·Clint Wilkins, Ph.D.
`· · · · ·clint.wilkins@haynesboone.com
`·9· · · ·HAYNES AND BOONE, LLP
`· · · · ·2505 North Plano Road, Suite 4000
`10· · · ·Richardson, Texas 75082
`· · · · ·972.680.7557
`11
`
`12· · · ·Ross Culpepper
`· · · · ·ross.culpepper@bakerbotts.com
`13· · · ·BAKER BOTTS
`· · · · ·2001 Ross Avenue, 11th Floor
`14· · · ·Dallas, Texas 75201
`· · · · ·214.953.6543
`15
`
`16· ·FOR THE PATENT OWNER:
`
`17· · · ·Sharon A. Hwang
`· · · · ·shwang@mcandrews-ip.com
`18· · · ·Rajendra A. Chiplunkar
`· · · · ·rchiplunkar@mcandrews-ip.com
`19· · · ·McANDREWS HELD & MALLOY, LTD
`· · · · ·500 West Madison Street, 34th Floor
`20· · · ·Chicago, Illinois 60661
`· · · · ·312.775.8000
`21
`
`22· ·ALSO PRESENT:
`
`23· · · ·Jennifer Wells - Ericsson
`
`24· · · ·Ryan Fickling - Videographer
`
`25· · · ·James Hietala (Via Phone) - Intellectual Ventures
`
`
`
`·1· · · · · · · · · · · · · ·I N D E X
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`·2· · · · · · · · · · · · · · · · · · · · · · · · · · · · ·PAGE
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`·3· ·Appearances . . . . . . . . . . . . . . . . . . . .· · 2
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`·4· ·ZYGMUNT HAAS, Ph.D.
`
`·5· · · ·Examination by Ms. Hwang. . . . . . . . . . . .· · 5
`
`·6· · · ·Examination by Mr. Emerson. . . . . . . . . . .· · 151
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`·7· ·Reporter's Certificate. . . . . . . . . . . . . . .· · 156
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`·8· · · · · · · · · · · · E X H I B I T S
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`·9· ·NO.· · · · · · · ·DESCRIPTION· · · · · · · · · · · · ·PAGE
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`10· ·Exhibit 1011· CV of Zygmunt J. Haas, Ph.D.· · · · · · ·4
`
`11· ·Exhibit 1012· Declaration of Zygmunt J. Haas, Ph.D.· · 4
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`12· · · · · · · · · Previously Marked Exhibits
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`13· ·Exhibit 1001· U.S. Patent 7,787,431
`
`14· ·Exhibit 1003· U.S. Patent 7,782,750
`
`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`·1· · · · · · · · · · ·P R O C E E D I N G S
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`·2· · · · · · · · (Exhibit 1011 and Exhibit 1012 were marked.)
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`·3· · · · · · · · THE VIDEOGRAPHER:· We are now on the record
`
`·4· ·for the video deposition of Dr. Zygmunt Haas.· The time is
`
`·5· ·9:11 on April 9th, 2015.· This is the matter of Ericsson
`
`·6· ·Incorporated versus Intellectual Ventures being held
`
`·7· ·before the United States Patent and Trademark Office
`
`·8· ·before the Patent Trial and Appeal Board, case IPR
`
`·9· ·2014-01195 patent number 7,787,431.
`
`10· · · · · · · · Counsel, will you please introduce
`
`11· ·yourselves for the record?
`
`12· · · · · · · · MS. HWANG:· Sharon Hwang from McAndrews,
`
`13· ·Held & Malloy for patent owner Intellectual Ventures, with
`
`14· ·James Hietala from Intellectual Ventures on the telephone.
`
`15· · · · · · · · MR. CHIPLUNKER:· Raj Chiplunker from
`
`16· ·McAndrews, Held & Malloy.
`
`17· · · · · · · · MR. EMERSON:· Russ Emerson, Haynes & Boone
`
`18· ·for Ericsson.
`
`19· · · · · · · · MR. LOWES:· Andrew Lowes, Haynes & Boone for
`
`20· ·Ericsson.
`
`21· · · · · · · · MR. WILKINS:· Clint Wilkins from Haynes &
`
`22· ·Boone for Ericsson.
`
`23· · · · · · · · MR. CULPEPPER:· Ross Culpepper from Baker
`
`24· ·Botts for Ericsson.
`
`25· · · · · · · · MS. WELLS:· Jennifer Wells, in-house counsel
`
`
`
`·1· ·of Ericsson.
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`·2· · · · · · · · · · ·ZYGMUNT HAAS, Ph.D.,
`
`·3· ·having been first duly sworn, testified as follows:
`
`·4· · · · · · MS. HWANG:· And I just want to quickly read a
`
`·5· ·stipulation on the record.· The parties stipulate that the
`
`·6· ·video of today's deposition will only be usable in this
`
`·7· ·IPR proceeding.· There's no stipulation as to the use of
`
`·8· ·the deposition transcript in other proceedings.
`
`·9· · · · · · · · · · · · · EXAMINATION
`
`10· ·BY MS. HWANG:
`
`11· · · ·Q.· ·Good morning, Dr. Haas.
`
`12· · · ·A.· ·Good morning, ma'am.
`
`13· · · ·Q.· ·Is there any reason why you can't provide
`
`14· ·truthful and accurate testimony today?
`
`15· · · ·A.· ·No, ma'am.
`
`16· · · ·Q.· ·Are you under any medications or are you
`
`17· ·suffering from any disability that may interfere with your
`
`18· ·ability to answer truthfully and accurately today?
`
`19· · · ·A.· ·No, ma'am.
`
`20· · · ·Q.· ·Have you done anything to prepare for today's
`
`21· ·deposition?
`
`22· · · ·A.· ·Yes, I did.
`
`23· · · ·Q.· ·And what did you do?
`
`24· · · ·A.· ·I reviewed my deposition -- my -- I'm sorry. I
`
`25· ·reviewed my declaration.· I also reviewed the prior art
`
`
`
`·1· ·references.· And I met with counsel as well.
`
`·2· · · ·Q.· ·How many times did you meet with counsel in
`
`·3· ·preparation for today's deposition?
`
`·4· · · ·A.· ·Well, we -- we met once for a full day.· And then
`
`·5· ·we also met on Monday for half a day, several hours, few
`
`·6· ·hours.· And we spoke on the phone yesterday, and we spoke
`
`·7· ·this morning as well.
`
`·8· · · ·Q.· ·Okay.· Thank you.
`
`·9· · · · · · · · I am going to hand you a document.
`
`10· · · ·A.· ·If I just may, I met with counsel many other
`
`11· ·times.· This was just the times I met for the purpose of
`
`12· ·the deposition.
`
`13· · · ·Q.· ·Right, I understand.· Thank you.
`
`14· · · · · · · · I'm going to hand you a document that was
`
`15· ·previously marked as Exhibit 1011.
`
`16· · · ·A.· ·Thank you.
`
`17· · · ·Q.· ·Are you familiar with this document?
`
`18· · · ·A.· ·Yes, ma'am.
`
`19· · · ·Q.· ·And what is it?
`
`20· · · ·A.· ·It's my CV, ma'am.
`
`21· · · ·Q.· ·The CV is dated February 2014, correct?
`
`22· · · ·A.· ·Yes, ma'am.
`
`23· · · ·Q.· ·And is this an accurate and up-to-date copy of
`
`24· ·your CV or have there been any material changes?
`
`25· · · ·A.· ·Well, they have been some changes.· For example,
`
`
`
`·1· ·in the list of my depositions, there have been additional
`
`·2· ·depositions, the list of trial testimony, there have been
`
`·3· ·additional trial testimony, and the list of my papers,
`
`·4· ·there have been additional papers which I published --
`
`·5· ·well, accepted for publication in the meantime.· That's
`
`·6· ·what I can see right now without going into great details.
`
`·7· · · ·Q.· ·Are you still a professor and distinguished chair
`
`·8· ·in computer science at the University of Texas at Dallas?
`
`·9· · · ·A.· ·Yes, I am, ma'am.
`
`10· · · ·Q.· ·And are you still a professor emeritus at Cornell
`
`11· ·University School of Electrical and Computer Engineering?
`
`12· · · ·A.· ·Yes, I am.
`
`13· · · ·Q.· ·You mentioned that you'd given some additional
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`14· ·trial testimony since February of 2014?
`
`15· · · ·A.· ·Yes, ma'am.
`
`16· · · ·Q.· ·Can you just briefly describe the case and when
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`17· ·that testimony took place?
`
`18· · · ·A.· ·So the additional trial testimony was last year.
`
`19· ·It must have been around October, September, October, and
`
`20· ·this was in the matter of InterDigital versus ZTE
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`21· ·Corporation.
`
`22· · · ·Q.· ·And that was before the International Trade
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`23· ·Commission?
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`24· · · ·A.· ·No, ma'am, this was before the Delaware court
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`25· ·district.
`
`
`
`·1· · · ·Q.· ·Okay.· Any other trial testimony?
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`·2· · · ·A.· ·Not that I can recall right now.
`
`·3· · · ·Q.· ·Obviously you have been engaged as a consultant
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`·4· ·in numerous legal matters; is that fair to say?
`
`·5· · · ·A.· ·I think it's fair to say.
`
`·6· · · ·Q.· ·And generally you have been engaged with respect
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`·7· ·to patent matters; is that correct?
`
`·8· · · ·A.· ·That's -- I guess it's fair to say this way, yes.
`
`·9· · · ·Q.· ·So prior to your work on this matter, you've
`
`10· ·performed obviousness analyses in the past?
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`11· · · ·A.· ·I performed analysis of patents, which included
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`12· ·obvious -- obviousness analysis.
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`13· · · ·Q.· ·And that is both for and against patentees or
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`14· ·patent owners?
`
`15· · · ·A.· ·It's probably fair to say yes.· Again, if you
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`16· ·take into consideration matters which I didn't necessarily
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`17· ·testify in trial, but other matters as well.
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`18· · · ·Q.· ·Okay.· Do you -- would you say that most of your
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`19· ·work is done on behalf of patent owners or against patent
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`20· ·owners?
`
`21· · · ·A.· ·I -- I didn't count those, I don't know.
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`22· · · ·Q.· ·Do you charge a standard rate for your services
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`23· ·for consulting engagements?
`
`24· · · ·A.· ·I typically start -- charge standard rate.
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`25· · · ·Q.· ·What is your standard rate?
`
`
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`·1· · · ·A.· ·The rate that I charged for this matter, which
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`·2· ·was at the time that I signed the retainment agreement,
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`·3· ·was 375.· That's the rate that I charge -- that I charged
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`·4· ·for this matter.· Again, this was the rate that's at the
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`·5· ·time of signing of the -- of the retainment agreement.
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`·6· · · ·Q.· ·When did you sign the retainer agreement in this
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`·7· ·case?
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`·8· · · ·A.· ·Oh, let's see if I have the exact date here.
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`·9· ·Well, I don't have the date here, but it was sometime last
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`10· ·year.
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`11· · · ·Q.· ·Is your rate different than $375 for other
`
`12· ·matters that you consult with?
`
`13· · · ·A.· ·My current rate is different.
`
`14· · · ·Q.· ·Okay.· What's your current rate?
`
`15· · · ·A.· ·It's 450.
`
`16· · · ·Q.· ·But that rate doesn't apply to this matter?
`
`17· · · ·A.· ·The rate that apply to this matter is the rate
`
`18· ·that was in effect when I signed this -- the retainment
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`19· ·agreement, which was 375.
`
`20· · · ·Q.· ·Okay.· Thank you.
`
`21· · · · · · · · I'm going to hand you --
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`22· · · ·A.· ·Just, it's 375 per hour.
`
`23· · · ·Q.· ·Yes.
`
`24· · · ·A.· ·I think it's obvious.
`
`25· · · ·Q.· ·Thank you.
`
`
`
`·1· · · · · · · · I'm going to hand you a document that was
`
`·2· ·previously marked as Exhibit 1012.· Are you familiar with
`
`·3· ·Exhibit 1012?
`
`·4· · · ·A.· ·Yes, ma'am, I am.
`
`·5· · · ·Q.· ·And what is Exhibit 1012?
`
`·6· · · ·A.· ·This is my -- appears to be my declaration in the
`
`·7· ·matter of the '431 patent.
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`·8· · · ·Q.· ·Can you please turn to the last page, page 126?
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`·9· · · ·A.· ·Yes, ma'am.
`
`10· · · ·Q.· ·Is that your signature on page 126?
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`11· · · ·A.· ·Yes, it is.
`
`12· · · ·Q.· ·You signed this declaration on July 21st, 2014?
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`13· · · ·A.· ·That's correct.
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`14· · · ·Q.· ·And by signing the declaration, you declared
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`15· ·under the penalty of perjury that the statements that you
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`16· ·made are true and accurate?
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`17· · · ·A.· ·Yes, based on the material that's available to me
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`18· ·at the time of signing the declaration.
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`19· · · ·Q.· ·And so would it be fair to say that the opinions
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`20· ·that you've included in Exhibit 1012 are a true and
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`21· ·accurate reflection of the entirety of your opinions
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`22· ·regarding the challenge claims of the '431 patent?
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`23· · · ·A.· ·It would be fair to say that what's in this
`
`24· ·declaration are all my opinions with respect to the '431
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`25· ·patent.
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`
`
`·1· · · ·Q.· ·Thank you.
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`·2· · · ·A.· ·Let me -- with respect to the claims that I was
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`·3· ·asked to analyze of the '431 patent.
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`·4· · · ·Q.· ·I understand.· So the challenged claims of the
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`·5· ·'431 patent, your opinions with respect to validity are
`
`·6· ·all included in Exhibit 1012, correct?
`
`·7· · · ·A.· ·With respect to the challenged claims, my opinion
`
`·8· ·of the '431 patent I included in this declaration, yes,
`
`·9· ·ma'am.
`
`10· · · ·Q.· ·Now, you prepared Exhibit 1012 at the request of
`
`11· ·the Ericsson entities listed in paragraph one, correct?
`
`12· · · ·A.· ·Well, as part of one says, I'm making this
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`13· ·declaration at the request of Ericsson, Inc. and
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`14· ·Telefonaktiebolaget, LM, Ericsson.· In parenthesis
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`15· ·Ericsson, yes.
`
`16· · · ·Q.· ·And looking at the caption of your declaration,
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`17· ·is it your understanding that your declaration was
`
`18· ·submitted to the Patent Trial and Appeal Board in
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`19· ·connection with a petition for interparties review of the
`
`20· ·'431 patent?
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`21· · · ·A.· ·Yes, my understanding is that my declaration has
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`22· ·been submitted to the Patent Trial and Appeal Board.
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`23· · · ·Q.· ·In connection with the petition for IPR, correct?
`
`24· · · ·A.· ·That's correct, in connection with the petition
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`25· ·for the IPR.
`
`
`
`·1· · · ·Q.· ·Have you actually read the petition for
`
`·2· ·interparties review that was submitted by Ericsson to the
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`·3· ·Patent Trial and Appeal Board?
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`·4· · · ·A.· ·I -- I am familiar with the petition.
`
`·5· · · ·Q.· ·You reviewed it?
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`·6· · · ·A.· ·I read it.
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`·7· · · ·Q.· ·Did you review the petition before or after you
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`·8· ·prepared your declaration?
`
`·9· · · ·A.· ·It was reviewed in connection with my preparation
`
`10· ·of the declaration.
`
`11· · · ·Q.· ·So sort of a simultaneous review of the petition
`
`12· ·as you were preparing your declaration; is that fair to
`
`13· ·say?
`
`14· · · ·A.· ·About, yes.
`
`15· · · ·Q.· ·Is it your understanding that the petition relies
`
`16· ·on your declaration for support?
`
`17· · · ·A.· ·It's my understanding -- yes, my understanding
`
`18· ·because the petition relies on my declaration.
`
`19· · · ·Q.· ·In paragraph two, you have listed what appears to
`
`20· ·be documents that you considered in connection with your
`
`21· ·preparation of the declaration; is that fair to say?
`
`22· · · ·A.· ·I just want to say that when you say I reviewed
`
`23· ·the petition, I -- I don't know if I review every aspect
`
`24· ·of the petition.· I review general.· I am familiar with
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`25· ·the petition generally.
`
`
`
`·1· · · ·Q.· ·Are you familiar with the petition as it was
`
`·2· ·filed to the Patent Trial and Appeal Board?
`
`·3· · · ·A.· ·I don't -- I am not sure if I saw the final
`
`·4· ·version of the petition that was filed.· I'm not sure
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`·5· ·right now.
`
`·6· · · ·Q.· ·Okay.· When you prepared your declaration,
`
`·7· ·though, the list of documents at paragraph two of
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`·8· ·Exhibit 1012, is that a complete listing of the documents
`
`·9· ·that you considered in connection with your preparation of
`
`10· ·Exhibit 1012?
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`11· · · ·A.· ·That's correct.
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`12· · · ·Q.· ·So you didn't leave anything out?
`
`13· · · ·A.· ·Well, those are the documents that I used in
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`14· ·preparation of -- of this -- of this -- of this
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`15· ·declaration.
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`16· · · ·Q.· ·Who chose this list of documents, you or counsel?
`
`17· · · ·A.· ·The documents have been -- well, it depends which
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`18· ·documents are talking about.· The prior art documents have
`
`19· ·been provided to me initially by the counsel.
`
`20· · · ·Q.· ·So you didn't do an independent search for prior
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`21· ·art; is that fair to say?
`
`22· · · ·A.· ·I did some independent search of the prior art
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`23· ·myself as well.
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`24· · · ·Q.· ·And what did your independent search of prior art
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`25· ·lead you to?
`
`
`
`·1· · · ·A.· ·Some documents.
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`·2· · · ·Q.· ·Were any of those documents listed in paragraph
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`·3· ·two?
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`·4· · · ·A.· ·I cannot right now.· I don't recall were there
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`·5· ·any documents that I came across by myself were also the
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`·6· ·documents provided to me by counsel or not.· I just don't
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`·7· ·recall right now.
`
`·8· · · ·Q.· ·Do you recall which pieces of prior art were
`
`·9· ·provided to you by counsel?
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`10· · · ·A.· ·As I said, to pieces listed in paragraph two were
`
`11· ·provided to me by counsel.· Of course, with the exception
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`12· ·of my CV, which was provided to -- by me to counsel.
`
`13· · · ·Q.· ·So would it be fair to say that counsel provided
`
`14· ·you with the Li '283 patent, the Yamaura '750 patent, the
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`15· ·Zhuang '175 patent, the Nobilet publication, the Beta
`
`16· ·publication, the Popovic publication and Van Nee
`
`17· ·publication?
`
`18· · · ·A.· ·It would be fair to say that those -- those
`
`19· ·references were provided to me by -- by the counsel.
`
`20· · · ·Q.· ·Did you consider the -- the prosecution history
`
`21· ·of the '431 patent in connection with preparing your
`
`22· ·declaration of Exhibit 1012?
`
`23· · · ·A.· ·I did not see the prosecution history of these
`
`24· ·patents, ma'am.
`
`25· · · ·Q.· ·Let's go to paragraph four of your declaration on
`
`
`
`·1· ·page 3.· Now, in your declaration, you have assumed a
`
`·2· ·priority date for the '431 patent of May 1st, 2004,
`
`·3· ·correct?
`
`·4· · · ·A.· ·Right.
`
`·5· · · ·Q.· ·And in paragraph four, you state that you believe
`
`·6· ·that, One of ordinary skill in the art would include
`
`·7· ·someone who has a BS degree in electrical engineering,
`
`·8· ·computer engineering, computer science or equivalent
`
`·9· ·training, as well as three to five years of experience in
`
`10· ·the field of digital communication systems, such as
`
`11· ·wireless, cellular communication systems and networks.
`
`12· · · · · · · · And is that your definition of a person of
`
`13· ·ordinary skill in the art for purposes of the '431 patent?
`
`14· · · ·A.· ·This is my definition of who a person of ordinary
`
`15· ·skill in the art would be for the purpose of the '431
`
`16· ·patent.
`
`17· · · ·Q.· ·Now, was it your definition or was this
`
`18· ·definition of a person of skill in the art provided to you
`
`19· ·by counsel?
`
`20· · · ·A.· ·I -- if I remember vaguely, we discussed this
`
`21· ·with the counsel and this was the definition that I --
`
`22· ·that we agree upon.
`
`23· · · ·Q.· ·Okay.· Great.· So with respect to where it says
`
`24· ·"three to five years of experience in the field of digital
`
`25· ·communication systems," what do you mean by three to five
`
`
`
`·1· ·years of experience?· What kind of experience are you
`
`·2· ·referring to?
`
`·3· · · ·A.· ·When I -- when I'm writing here three to five
`
`·4· ·years of experience, I refer to three to five years of
`
`·5· ·professional experience.· For example, working in this
`
`·6· ·field would be professional experience.
`
`·7· · · ·Q.· ·So does that mean design experience, sales
`
`·8· ·experience, research experience or any of the above?
`
`·9· · · ·A.· ·Well, I mean technical experience.· Sales, of
`
`10· ·course, will not qualify -- qualify.
`
`11· · · ·Q.· ·So can you describe the types of technical
`
`12· ·experiences that you would include within your definition
`
`13· ·of the three to five years of experience in the field of
`
`14· ·digital communication systems that a person of skill in
`
`15· ·the art would have?
`
`16· · · ·A.· ·Well, I would say someone who works in the field
`
`17· ·as designing, analyzing such systems, implementing such
`
`18· ·systems.· Those would be some examples of what technical
`
`19· ·experience might be, not all the examples.
`
`20· · · ·Q.· ·And a person of skill in the art would only have
`
`21· ·a bachelor's degree, correct, they wouldn't need to have a
`
`22· ·master's or a Ph.D.?
`
`23· · · ·A.· ·Well, if -- my understanding is that the person,
`
`24· ·it would be sufficient for one to be a person of ordinary
`
`25· ·skill in the art if this person have -- has a BS degree
`
`
`
`·1· ·with -- in those fields or equivalent training, as well as
`
`·2· ·three to five years of experience.
`
`·3· · · ·Q.· ·What's the equivalent training, what do you mean
`
`·4· ·by that?
`
`·5· · · ·A.· ·Well, equivalent training would be, for example,
`
`·6· ·a degree in fields which is not exactly listed here, but
`
`·7· ·related to those fields would be example of equivalent
`
`·8· ·training.
`
`·9· · · ·Q.· ·Can you give me some examples?
`
`10· · · ·A.· ·Well, a person, for example, who is in the field
`
`11· ·of electrical and computer engineering, those would be
`
`12· ·qualified as equivalent training.
`
`13· · · ·Q.· ·Do you mean someone who does not have a degree
`
`14· ·necessarily in that area, but who works in that field?
`
`15· · · ·A.· ·No.
`
`16· · · ·Q.· ·Okay.
`
`17· · · ·A.· ·What I said is equivalent training, what I meant
`
`18· ·degree, what I -- I said one example would be a field
`
`19· ·which is closely related to electrical engineering or
`
`20· ·computer engineering or computer science.
`
`21· · · ·Q.· ·And what examples do you have of that?· I thought
`
`22· ·you just said electrical or computer, so I thought that
`
`23· ·was --
`
`24· · · ·A.· ·Electrical and computer engineering.· Electrical
`
`25· ·and computer engineering is not --
`
`
`
`·1· · · ·Q.· ·As opposed to electrical engineering or computer
`
`·2· ·engineering?
`
`·3· · · ·A.· ·Or computer engineering, right.
`
`·4· · · ·Q.· ·Okay.
`
`·5· · · ·A.· ·So there is some departments are called
`
`·6· ·electrical and computer engineering, which --
`
`·7· · · ·Q.· ·Okay.
`
`·8· · · ·A.· ·-- which are not electrical engineering and not
`
`·9· ·computer engineering.
`
`10· · · ·Q.· ·Are there any other examples of equivalent
`
`11· ·training that you can give me other than electrical and
`
`12· ·computer engineering?
`
`13· · · ·A.· ·Well, if someone -- let's say, have -- has a
`
`14· ·degree in electronics engineering, for example, I would
`
`15· ·also consider such a person as long as he or she has a
`
`16· ·degree -- a BS degree in electronic engineering, for
`
`17· ·example.
`
`18· · · ·Q.· ·So equivalent training does require some sort of
`
`19· ·bachelor's degree in an electronics-type field; is that
`
`20· ·fair to say, plus the three to five years of experience
`
`21· ·in -- in a technical position in the field of digital
`
`22· ·communication systems?
`
`23· · · ·A.· ·Well, if -- if it requires bachelor's degree, if
`
`24· ·someone has an equivalent training to a bachelor's degree;
`
`25· ·in other words, he or she went through the same material
`
`
`
`·1· ·and took the same courses but did not actually obtain the
`
`·2· ·degree, I think it probably would be fair to say that he
`
`·3· ·or she would fall under the equivalent training as well.
`
`·4· ·As long as they had the material, which typically we
`
`·5· ·perceive as being part of the BSE degree.
`
`·6· · · ·Q.· ·Okay.· So at the end of paragraph four, you say,
`
`·7· ·Unless otherwise stated, when I provide my understanding
`
`·8· ·and analysis below, it is consistent with the level of one
`
`·9· ·of ordinary skill in these technologies at or around the
`
`10· ·priority date of the '431 patent.· You see that?
`
`11· · · ·A.· ·Yes, I see that.
`
`12· · · ·Q.· ·What do you mean by that, "what's consistent
`
`13· ·with"?
`
`14· · · ·A.· ·It is consistent means that when I look through
`
`15· ·my understanding and analysis, which I provide below, it
`
`16· ·is looks through the, so to speak, through the lens of a
`
`17· ·person of an ordinary skill in the art in this
`
`18· ·technologies at or around the priority date of this
`
`19· ·patent.
`
`20· · · ·Q.· ·And you're using May of 2004, correct?
`
`21· · · ·A.· ·I use May 1st, 2004 as the priority date, as
`
`22· ·earliest priority date of this patent.
`
`23· · · ·Q.· ·Are you a person of ordinary skill in the art
`
`24· ·under your definition?
`
`25· · · ·A.· ·I think that I am an expert in this field and not
`
`
`
`·1· ·only an ordinary person skill in the art.
`
`·2· · · ·Q.· ·So would it be fair to say that a person of
`
`·3· ·extraordinary skill in the art may have a different
`
`·4· ·viewpoint than a person of ordinary skill in the art with
`
`·5· ·respect to validity of the '431 patent?
`
`·6· · · ·A.· ·Again, when I analyze those -- this patent and
`
`·7· ·the claims at issue, I look through the lens, so to speak,
`
`·8· ·of a person of ordinary skill in the art.· In other words,
`
`·9· ·I try to put myself in a position with just ordinary skill
`
`10· ·in the art based on my definition would have understood
`
`11· ·those claims and specification, the whole patent, and the
`
`12· ·references at the time of the invention.
`
`13· · · ·Q.· ·Okay.· I understand that.· But would it be fair
`
`14· ·to say that an analysis of the validity of the '431 patent
`
`15· ·from the viewpoint of a person of extraordinary skill in
`
`16· ·the art may be different than the analysis of the '431
`
`17· ·patent from the viewpoint of a person of ordinary skill in
`
`18· ·the art?
`
`19· · · ·A.· ·Analysis would be different.· That's not what I
`
`20· ·was requested to -- to do.
`
`21· · · ·Q.· ·Well, I understand that.· I'm just asking you
`
`22· ·whether you believe that the analysis of the '431 patent
`
`23· ·by a person of extraordinary skill in the art -- I'm not
`
`24· ·saying you, I'm saying a person of extraordinary skill in
`
`25· ·the art may look at the validity of the '431 patent in a
`
`
`
`·1· ·different way than a person that only has ordinary skill
`
`·2· ·in the art.· Is that fair to say?
`
`·3· · · · · · · · MR. EMERSON:· Object to the form.
`
`·4· · · ·A.· ·I mean, maybe the person of extraordinary skill
`
`·5· ·in the art would have some additional understanding, which
`
`·6· ·a person of ordinary skill in the art would not have, but,
`
`·7· ·again, that's not what such an analysis should be doing.
`
`·8· ·So if you're implying that the analysis should be done
`
`·9· ·based on an extraordinary skill in the art, I will
`
`10· ·disagree with this.· The analysis should be done based on
`
`11· ·the understanding of a person of ordinary skill in the art
`
`12· ·at the time of the -- at the time of the priority date of
`
`13· ·the patent.
`
`14· · · ·Q.· ·(BY MS. HWANG)· Would it be fair to say that a
`
`15· ·person of extraordinary skill in the art may be more
`
`16· ·likely to find a patent obvious as compared to a person of
`
`17· ·ordinary skill in the art?
`
`18· · · · · · · · MR. EMERSON:· Objection, form.
`
`19· · · ·A.· ·I didn't give any thought.· I don't know.
`
`20· · · ·Q.· ·(BY MS. HWANG)· You don't know.· Would it be fair
`
`21· ·to say that the analysis of the validity of the '431
`
`22· ·patent from the viewpoint of a person of ordinary skill in
`
`23· ·the art in 2014 may be different than an analysis of the
`
`24· ·'431 patent from the viewpoint of a person of ordinary
`
`25· ·skill in the art in 2004?
`
`
`
`·1· · · · · · · · MR. EMERSON:· Object to the form.
`
`·2· · · ·A.· ·Analysis may be different, but that's not what
`
`·3· ·such an ordinary -- extraordinary art person skill in the
`
`·4· ·art -- with skill in the art should do in order to analyze
`
`·5· ·the patent.
`
`·6· · · ·Q.· ·(BY MS. HWANG)· Right, I understand that.· But
`
`·7· ·all I'm saying is would you agree that a person of
`
`·8· ·ordinary skill in the art in 2014 would have more
`
`·9· ·knowledge than a person of ordinary skill in the art in
`
`10· ·2004?
`
`11· · · ·A.· ·You said extraordinary -- you said ordinary,
`
`12· ·extraordinary?
`
`13· · · ·Q.· ·No, ordinary.· So --
`
`14· · · ·A.· ·I would agree that the person of extraordinary
`
`15· ·skill in the art might have had -- might have more
`
`16· ·knowledge than a person of ordinary skill in the art.
`
`17· · · ·Q.· ·What about a person of ordinary skill in the art
`
`18· ·in 2014 versus a person of ordinary skill in the art in
`
`19· ·2004, do you see a difference in the level of knowledge
`
`20· ·that they would have?
`
`21· · · ·A.· ·I'm sorry, extraordinary?
`
`22· · · ·Q.· ·No, ordinary?
`
`23· · · ·A.· ·Ordinary.
`
`24· · · ·Q.· ·So now we're only looking at persons of ordinary
`
`25· ·skill in the art?
`
`
`
`·1· · · ·A.· ·In 2014 as opposed to 2004?
`
`·2· · · ·Q.· ·2004, yes.
`
`·3· · · ·A.· ·I think it's fair to say that an ordinary person
`
`·4· ·of skill in the art in 2014 would have more knowledge than
`
`·5· ·an ordinary person of skill in the art in 2004.· Yet
`
`·6· ·again, I emphasize that when one makes such analysis, it
`
`·7· ·should look through the lens of a person of ordinary skill
`
`·8· ·in the art at the time of the -- the patent was filed or
`
`·9· ·priority date of the patent.
`
`10· · · ·Q.· ·When you were performing your obviousness
`
`11· ·analysis with respect to claims one and two of the '431
`
`12· ·patent, was there ever a time that your personal opinion
`
`13· ·based on your extraordinary level of skill in the art in
`
`14· ·2014 differed than the viewpoint that you were attempting
`
`15· ·to apply of a person of ordinary skill in the art in 2004?
`
`16· · · · · · · · MR. EMERSON:· Object to the form.
`
`17· · · ·A.· ·I cannot recall right now, ma'am.
`
`18· · · · · · · · THE COURT REPORTER:· I cannot --
`
`19· · · ·Q.· ·(BY MS. HWANG)· You don't recall a single --
`
`20· · · ·A.· ·I cannot recall right now.
`
`21· · · ·Q.· ·You don't recall a single instance in which your
`
`22· ·personal opinion as a person of extraordinary skill in the
`
`23· ·art in 2014 differed than your viewpoint that you were
`
`24· ·trying to apply of a person of ordinary skill in the art
`
`25· ·in 2004?
`
`
`
`·1· · · ·A.· ·Again, I -- when I was analyzing this patent, I
`
`·2· ·was -- I put myself in a position of what a person of
`
`·3· ·ordinary skill in the art in May 2004 would have
`
`·4· ·understood.· So I never tried to put myself in a different
`
`·5· ·position, so, therefore, I cannot answer this question
`
`·6· ·whereas it would or would not differ, because I never
`
`·7· ·analyze this patent in view of other than a person of
`
`·8· ·ordinary skill in the art --
`
`·9· · · ·Q.· ·How did you --
`
`10· · · ·A.· ·-- at the time -- at the time of the patent.
`
`11· · · ·Q.· ·How did you do that?· How did you put your hat on
`
`12· ·as a person of ordinary skill in the art in 2004 when, as
`
`13· ·you have said yourself, you're a person of extraordinary
`
`14· ·skill in the art in 2014?
`
`15· · · ·A.· ·Well, simply one tries to understand what a
`
`16· ·person of ordinary skill in the art, BS degree, electrical
`
`17· ·engineering three to five years of experience would have
`
`18· ·understood reading such a patent.· It's just a matter of
`
`19· ·trying to put yourself in a particular context at a
`
`20· ·particular time.· For example, if things were not known in
`
`21· ·2004, I would not use such knowledge to analyze those
`
`22· ·claims because such a knowledge was not available in 2004.
`
`23· · · · · · · · If such particular knowledge to acquire one
`
`24· ·to understand things at the level of Ph.D., for example,
`
`25· ·then, again, I would not apply such standard in other
`
`
`
`·1· ·analyzing those claims.
`
`·2· · · ·Q.· ·You can't think of a single instance where you
`
`·3· ·felt that you had to actually sort of ignore the
`
`·4· ·extraordinary knowledge that you have or the knowledge
`
`·5· ·that you've gained over the last ten, 11 years when
`
`·6· ·analyzing claims one and two of the '431 patent?
`
`·7· · · · · · · · MR. EMERSON:· Object to form.
`
`·8· · · ·A.· ·Well -- well, of course, I had to remove myself
`
`·9· ·from what I knew in 2014 because I had to concentrate of
`
`10· ·what I -- what a person of ordinary skill in the art would
`
`11· ·have known in 2004.· So if a knowledge is available today
`
`12· ·in 2014 and was not available in 2004, I would not use
`
`13· ·such knowledge in analyzing those claims.
`
`14· · · ·Q.· ·(BY MS. HWANG)· What about if there was some
`
`15· ·knowledge that was available in 2005, would you have
`
`16· ·ignored that in your obviousness analysis of the '431
`
`17· ·patent?
`
`18· · · ·A.· ·If I would have been aware of such a difference,
`
`19· ·I would, but I am not aware right now as I sit here if
`
`20· ·I -- or that I recall there was such a difference between
`
`21· ·2004 and 2005.· But my general -- general way that I
`
`22· ·analyze was try to understand what was known in 2004 --
`
`23· ·May 2004 and apply this knowledge, again, in the context
`
`24· ·of one of ordinary skill in the art to analyzing this
`
`25· ·patent.
`
`
`
`·1· · · ·Q.· ·How did you go about trying to understand what
`
`·2· ·was known in 2004?
`
`·3· · · ·A.· ·Well, I -- I was there in 2004.· I -- I was in
`
`·4· ·this field in 2004.· I was very actively involved in this
`
`·5· ·field in 2004.· So I know what was known in 2004 and what
`
`·6· ·was known later.· So I can distinguish between the
`
`·7· ·knowledge at the -- at -- of May 2004.· Again, say at or
`
`·8· ·around the priority date.
`
`·9· · · · · · · · So, you know, it's not like May 2nd would
`
`10· ·have been much different than May 1st, I don't think. I
`
`11· ·don't think so.· But again, May 1st, 2004 I knew was there
`
`12· ·so I know what was known in the field.· And if was
`
`13· ·anything else, which would have been done after the date
`
`14· ·-- the date, I will not use it in my -- to my analysis.
`
`15· · · ·Q.· ·Were you a person of ordinary skill in the art in
`
`16· ·2004?
`
`17· · · ·A.· ·I think that I would qual
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