TIFFANYALLEY
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`GLOBAL it."n°3f$'é8
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`In The Matter Of:
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`Blackberry vs. Zipit Wireless
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`Tiffany Alley Global Reporting & Video
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`730 Peachtree Street NE
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`Suite 470
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`Atlanta, GA 30308
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`770.343.9696 | schedule@tiffanyalley.com | 800.808.4958
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`ZIPIT EX. 2006, pg. 1
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`ZIPIT EX. 2006, pg. 1
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`· · · · · ·UNITED STATES PATENT AND TRADEMARK OFFICE
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`· · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`· · · · · · · · · · · · BLACKBERRY CORP.,
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`· · · · · · · · · · · · · ·Petitioner
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`· · · · · · · · · · · · · · · ·V.
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`· · · · · · · · · · · ·ZIPIT WIRELESS, INC.
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`· · · · · · · · · · · · · ·Patent Owner
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`· · · · · · · · · · · Case No. IRP2014-01506
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`· · · · · · · · · · · · Patent 7,894,837
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`· · · · · · · · ·DEPOSITION OF ARTHUR T. BRODY
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`· · · · · · · · · · Alexandria, Virginia
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`· · · · · · · · · Thursday, May 21, 2015
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`· · · · · · · · · · · · · ·9:00 a.m.
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`· · ·Reported by:· Karen Brynteson, RPR, RMR, CRR, FAPR
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`ZIPIT EX. 2006, pg. 2
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`Page 2
`·1· · · ·The deposition of ARTHUR T. BRODY held at the
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`·1· · · · · · · · · · · C O N T E N T S
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`Page 4
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`·2· ·offices of:
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`·2· ·EXAMINATION OF ARTHUR T. BRODY· · · · · · ·PAGE
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`·3· · · · By Mr. Risley· · · · · · · · · · · · · ·5
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`·5· · · · · · · Oblon McClelland, Maier & Neustadt, LLP
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`·5· · · · · · · · · · · E X H I B I T S
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`·6· · · · · · · 1940 Duke Street
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`·6· · · · · · · · ·(Attached to transcript)
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`·7· · · · · · · Alexandria, Virginia 22314
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`·7· ·BRODY DEPOSITION EXHIBIT· · · · · · · · · ·PAGE
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`14· · · · ·Pursuant to Notice, before Karen Brynteson,
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`15· ·Registered Professional Reporter, Registered Merit
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`16· ·Reporter, Certified Realtime Reporter, Fellow of the
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`17· ·Academy of Professional Reporters.
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`·1· · · · · · · · A P P E A R A N C E S
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`·3· ·ON BEHALF OF THE PATENT OWNER:
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`·4· · · ·STEPHEN RISLEY, ESQUIRE
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`·5· · · ·ROBERT B. DULANEY, III, ESQUIRE
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`·6· · · ·Smith Risley Tempel Santos LLC
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`·7· · · ·Two Ravinia Drive, NE.
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`·8· · · ·Suite 700
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`·9· · · ·Atlanta, Georgia 30346
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`10· · · ·770-490-3492
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`12· ·ON BEHALF OF THE PETITIONER:
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`13· · · ·JOHN F. PRESPER, ESQUIRE
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`14· · · ·Oblon, McClelland, Maier & Neustadt, LLP
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`15· · · ·1940 Duke Street
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`16· · · ·Alexandria, Virginia 22341
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`17· · · ·703-413-3000
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`·8· · · ·#2001... U.S. Patent 6,539,421 B1.....· 142
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`·9· · · ·#2002... U.S. Patent 6,665,173 B2.....· 147
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`10· · · ·#2003... U.S. Patent 6,629,793 B1.....· 148
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`Page 5
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`·1· · · · · · · · · ·P R O C E E D I N G S
`·2· · · · · · · · · · · · · · · · · · ·(9:00 a.m.)
`·3· ·Whereupon--
`·4· · · · · · · · · · ·ARTHUR T. BRODY,
`·5· ·having been first duly sworn, was examined and
`·6· ·testified as follows:
`·7· · · ·EXAMINATION BY COUNSEL FOR PATENT OWNER
`·8· ·BY MR. RISLEY:
`·9· · · · ·Q.· ·Could you please state your name.
`10· · · · ·A.· ·Arthur Ted Brody.
`11· · · · ·Q.· ·Mr. Brody, I am Steve Risley. I
`12· ·represent the patentee, Zipit Wireless, Inc. and I
`13· ·have with me Robert Dulaney.· And we're here today
`14· ·to, I guess, essentially and technically
`15· ·cross-examine you regarding your declaration that
`16· ·you filed in the IPRs related to the '870 and '837
`17· ·patents.· Do you agree with that?
`18· · · · ·A.· ·That's my understanding.
`19· · · · ·Q.· ·Okay.· If I ask you any questions and you
`20· ·don't understand them, please let me know.· And we
`21· ·need auditory responses instead of nods, since it
`22· ·wouldn't be on video anyway, I guess, we need to get
`23· ·an auditory response, please.
`24· · · · ·A.· ·I will do.
`25· · · · ·Q.· ·Is there any reason why we can't go
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`ZIPIT EX. 2006, pg. 3
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`Page 6
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`·1· ·forward today in terms of illness or medication or
`·2· ·something like that?
`·3· · · · ·A.· ·No, there isn't.
`·4· · · · ·Q.· ·Okay.· I would like to start, Mr. Brody,
`·5· ·by giving you a copy of your declaration, which has
`·6· ·been previously marked as Blackberry Exhibit 1003.
`·7· · · · · · · Please feel free, I would like you to, I
`·8· ·guess, confirm what I just said and that you
`·9· ·understand and recognize what Exhibit 1003 is.
`10· · · · · · · Let me just clarify as well, that is your
`11· ·first, starting with your declaration for the '837
`12· ·patent?
`13· · · · ·A.· ·Yes, this is my declaration for the '837
`14· ·patent and Attachment A.· It is not showing any of
`15· ·the exhibits that I have referenced, which would be
`16· ·part of my declaration.
`17· · · · ·Q.· ·Okay.· I want to make sure I am tracking
`18· ·you.· When you say other exhibits, do you mean the
`19· ·other numbered exhibits?
`20· · · · ·A.· ·Yes.
`21· · · · ·Q.· ·Okay.· But this is the entirety of your
`22· ·declaration that has your CV on the back?
`23· · · · ·A.· ·No.· My declaration includes the
`24· ·exhibits.· I cite to the exhibits, so I would assume
`25· ·the exhibits are part of my declaration.
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`Page 7
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`·1· · · · ·Q.· ·Okay.· Let me try it this way.· Apart
`·2· ·from -- well, is Exhibit 1003 itself complete as far
`·3· ·as you can tell?
`·4· · · · ·A.· ·This is, this is Exhibit 1003, but the
`·5· ·exhibit does reference -- the other exhibits, which
`·6· ·obviously are incorporated into this declaration,
`·7· ·because I cite to them and I even quote from them.
`·8· · · · ·Q.· ·Okay.· Apart from Exhibit 1003 and the
`·9· ·subsequent references which I think span starting
`10· ·with 1001 to 1011, I believe, are there any other
`11· ·parts of your exhibit -- I'm sorry, of Exhibit 1003?
`12· · · · ·A.· ·I think I don't cite to all of those
`13· ·exhibits.· I don't cite to Exhibit 1001, I don't
`14· ·believe, unless that is Attachment A.· We can look
`15· ·at the paragraph that -- it says the materials
`16· ·considered, and it tells you which exhibits.· It is
`17· ·paragraph 4.
`18· · · · · · · And that tells you Attachment A, which
`19· ·previously I discussed as my CV.· And these are the
`20· ·exhibits that I have actually discussed in this --
`21· ·in the declaration, the main body of which is
`22· ·Exhibit 1003.· So it starts with the 1004 and goes
`23· ·on.
`24· · · · ·Q.· ·Okay.· All right.· Is there -- thanks for
`25· ·clarifying that.
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`Page 8
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`·1· · · · · · · So if we just go to paragraph 4, that, in
`·2· ·addition to 1003, the '837 patent, and the
`·3· ·prosecution history, that defines the universe, if
`·4· ·you will, of your '837 declaration?
`·5· · · · ·A.· ·I believe it does.
`·6· · · · ·Q.· ·Okay.
`·7· · · · ·A.· ·And paragraph 1, just to be clear, cites
`·8· ·to the patent, which would be Exhibit -- which would
`·9· ·be Exhibit 1.
`10· · · · ·Q.· ·And that's the next thing I just want to
`11· ·make sure we track each other today.· So when we
`12· ·refer to Exhibit 1003, I think we need to make
`13· ·clear, at least, I think in the beginning I am going
`14· ·to talk about the '837 report.· So I just want to
`15· ·make sure we're tracking and hopefully have a clear
`16· ·record that I'm talking about Exhibit 1003, which is
`17· ·the '837 declaration.
`18· · · · · · · And then if and when we switch to the
`19· ·declaration for the '870 patent that we're clear
`20· ·about that as well.
`21· · · · ·A.· ·Okay.· So until you say we're switching
`22· ·to the '870 declaration, we will assume that when
`23· ·you say your declaration, there will be what is your
`24· ·Blackberry Exhibit 1003.
`25· · · · ·Q.· ·Okay, great.
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`Page 9
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`·1· · · · · · · Now, are there any, any changes that you
`·2· ·need to make to the '837 Exhibit 1003?
`·3· · · · ·A.· ·I think there were, there may have been
`·4· ·some pages that got mis-cited in referencing some of
`·5· ·the exhibits, but if we go to those pages, I will
`·6· ·catch them offhand.· There is like one or two of
`·7· ·them, and I don't recall if it was the '870 or the
`·8· ·'837 declaration.
`·9· · · · ·Q.· ·Other than that, you are talking about,
`10· ·for example, in paragraph 22 where it says "error
`11· ·reference, source not found"?
`12· · · · ·A.· ·Right.· It turns out that if you take --
`13· ·look at paragraph 20.· I think that's what it is
`14· ·referencing.· So there was an automatic referencing
`15· ·that somehow didn't get pulled out when we reference
`16· ·to paragraph 20.· I think that, that takes care of
`17· ·that.
`18· · · · ·Q.· ·Apart from these type of computer
`19· ·processing errors, are there any substantive changes
`20· ·that you need to make to the report?
`21· · · · ·A.· ·No, there are not.· And I guess it is a
`22· ·declaration.
`23· · · · ·Q.· ·And you have reviewed this declaration, I
`24· ·imagine, a few times in preparation for today's
`25· ·deposition?
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`ZIPIT EX. 2006, pg. 4
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`Page 10
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`·1· · · · ·A.· ·Yes, I have.
`·2· · · · ·Q.· ·Have you reviewed the exhibits as well
`·3· ·that you cite in paragraph 4?
`·4· · · · ·A.· ·Yes, I have.
`·5· · · · ·Q.· ·Okay.· Do you have any additional
`·6· ·opinions or bases for opinions that are not
`·7· ·expressed in '837 Exhibit 1003?
`·8· · · · ·A.· ·My understanding is I'm here to talk
`·9· ·today about this declaration, and that's what I am
`10· ·prepared to talk about.
`11· · · · ·Q.· ·So is the answer no?
`12· · · · ·A.· ·This -- well, I came here prepared to
`13· ·talk about the declaration, the two declarations,
`14· ·the '837 and the '870.· So I have not prepared any
`15· ·additional material to discuss today.
`16· · · · ·Q.· ·So you don't have any other opinions that
`17· ·are not expressed in either one of your two
`18· ·declarations?
`19· · · · ·A.· ·Today that I'm prepared to discuss are
`20· ·just what's in these two declarations.
`21· · · · ·Q.· ·I am not sure why we just can't get a
`22· ·straight answer to that.· So let me try it this way.
`23· · · · · · · Are there any other opinions that you
`24· ·intend to proffer to the Patent Office in support of
`25· ·Blackberry's IPR petitions that are not expressed --
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`Page 11
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`·1· · · · · · · MR. PRESPER:· Objection, asked and
`·2· ·answered.
`·3· ·BY MR. RISLEY:
`·4· · · · ·Q.· ·-- in either one of your two
`·5· ·declarations?
`·6· · · · ·A.· ·I have not been asked to do any
`·7· ·additional opinions beyond this.
`·8· · · · ·Q.· ·You understand, right, that we're here to
`·9· ·find and talk about all of the opinions that are
`10· ·going to be set forth at the Patent Office in the
`11· ·IPRs, and we're entitled to know what those opinions
`12· ·are.· And so we need to make sure that whatever you
`13· ·do have to say is confined by your reports.· That's
`14· ·all I am trying to do here.
`15· · · · · · · I understand you are involved in a
`16· ·lawsuit and have other opinions maybe that are not
`17· ·expressed in these IPR declarations, but we still
`18· ·are entitled to know everything that you intend and
`19· ·have arrived at in the IPRs.
`20· · · · · · · MR. PRESPER:· Wait for a question.· Is
`21· ·there -- there is no question pending.
`22· ·BY MR. RISLEY:
`23· · · · ·Q.· ·If you don't understand the question, the
`24· ·question is is this -- do the two '870 and '837
`25· ·declarations represent and express all of the
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`Page 12
`·1· ·opinions that you are going to assert and proffer to
`·2· ·the Patent Office in the IPR?
`·3· · · · · · · MR. PRESPER:· Objection, asked and
`·4· ·answered.· You can answer.
`·5· · · · · · · THE WITNESS:· Yes, these represent my
`·6· ·opinions that I presented to the Patent Office.
`·7· ·BY MR. RISLEY:
`·8· · · · ·Q.· ·Okay.· And similarly -- hopefully without
`·9· ·as much difficulty -- are all the bases that support
`10· ·your opinions that are expressed in your two
`11· ·declarations set forth in the declarations as well?
`12· · · · ·A.· ·So the opinions that will be, I am
`13· ·putting forth to the Patent Office here, everything
`14· ·that I relied upon is discussed in this declaration.
`15· · · · ·Q.· ·And anything that you did not rely upon
`16· ·is not set forth in the declarations, correct?
`17· · · · ·A.· ·Could you read that back, please?
`18· · · · · · · THE REPORTER:· "Question:· And anything
`19· ·that you did not rely upon is not set forth in the
`20· ·declarations, correct?"
`21· · · · · · · THE WITNESS:· That is correct.· If it
`22· ·does not appear as part of the materials or my
`23· ·discussion of the person of ordinary skill in the
`24· ·art, I'm not relying upon it.
`25· ·BY MR. RISLEY:
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`Page 13
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`·1· · · · ·Q.· ·All right.· Why don't we just start, Mr.
`·2· ·Brody, with -- tell us how this declaration came to
`·3· ·be, please.
`·4· · · · ·A.· ·I was asked to prepare a declaration in
`·5· ·support of an IPR.
`·6· · · · ·Q.· ·And who asked you?
`·7· · · · · · · MR. PRESPER:· I just caution the witness
`·8· ·not to divulge any privileged communications or work
`·9· ·product, but you can answer.
`10· · · · · · · MR. RISLEY:· Let me try to cut this off,
`11· ·John.· I think, one, the rules are pretty specific
`12· ·that you can object to form only, without all these
`13· ·instructions tagged on to the end of your objection.
`14· · · · · · · MR. PRESPER:· We can also --
`15· · · · · · · MR. RISLEY:· Two -- don't interrupt me --
`16· ·two, he is a testifying witness, so I can't imagine
`17· ·what privilege you think you have with Mr. Brody.
`18· ·But he is a testifying witness.· And so it has been
`19· ·waived.
`20· · · · · · · MR. PRESPER:· Well, he -- we can object
`21· ·and instruct him not to answer on the basis of
`22· ·privilege or work product, and that's what I'm
`23· ·telling him to do.· So proceed as you will.
`24· ·BY MR. RISLEY:
`25· · · · ·Q.· ·Are you going to refuse to answer
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`ZIPIT EX. 2006, pg. 5
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`·1· ·questions today based on work product?· Because if
`·2· ·you are, we will just file a motion to strike your
`·3· ·declarations and we can end this thing right now.
`·4· · · · ·A.· ·No.· What I will not answer will be
`·5· ·questions, specific questions that I am instructed
`·6· ·not to answer by my, by the attorney here, John
`·7· ·Presper.
`·8· · · · ·Q.· ·Okay.· Well, there is a question pending.
`·9· ·And I would like to know who asked you to prepare
`10· ·the IPR declaration?
`11· · · · ·A.· ·I was asked to prepare the IPR
`12· ·declaration by one of the two law firms, and I don't
`13· ·remember which one.
`14· · · · ·Q.· ·Do you remember which individual asked
`15· ·you?
`16· · · · ·A.· ·No, I don't.
`17· · · · ·Q.· ·Okay.· When was that?
`18· · · · ·A.· ·It was probably two months before the
`19· ·declaration maybe.· I am just guessing.
`20· · · · ·Q.· ·And your declaration was signed on
`21· ·September 16th, 2014, correct?
`22· · · · ·A.· ·Well, that's correct.
`23· · · · ·Q.· ·So you began or were asked to start the
`24· ·process in roughly August 16th of 2014?
`25· · · · ·A.· ·No, I said two months.
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`·1· · · · ·Q.· ·I'm sorry.· Bad math.
`·2· · · · ·A.· ·July.· A little further back.· It could
`·3· ·be June, July.· Again, my memory is not clear.
`·4· · · · ·Q.· ·Okay.· And how much time have you spent
`·5· ·preparing the declarations?
`·6· · · · ·A.· ·I don't recall.
`·7· · · · ·Q.· ·What is your billing rate?
`·8· · · · ·A.· ·My billing rate should be $500 an hour, I
`·9· ·think.
`10· · · · ·Q.· ·And do you charge more for testifying?
`11· · · · ·A.· ·No, I do not.
`12· · · · ·Q.· ·Just hourly?
`13· · · · ·A.· ·Just hourly, yes.
`14· · · · ·Q.· ·And you have no idea how much time you
`15· ·have spent preparing the IPR declarations?
`16· · · · ·A.· ·No, I don't keep track of that in my
`17· ·head, no.
`18· · · · ·Q.· ·Okay.· So after you were asked to prepare
`19· ·an IPR declaration, walk me through the process.
`20· ·What happened next?
`21· · · · ·A.· ·We, as discussed, looked for some prior
`22· ·art, had some prior art that I thought was
`23· ·applicable.· Based on that prior art and based on
`24· ·some other prior art, I formulated my ideas and I
`25· ·entered down a draft form of what the arguments
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`Page 16
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`·1· ·would be claim by claim.
`·2· · · · ·Q.· ·How did you identify the prior art that
`·3· ·you cited in your declarations?
`·4· · · · ·A.· ·I used the Internet for some of them.
`·5· · · · ·Q.· ·Let me be more specific.· If I refer to
`·6· ·the e740 User Manual, which you cite in both of your
`·7· ·declarations --
`·8· · · · ·A.· ·Um-hum.
`·9· · · · ·Q.· ·-- do you understand what I am talking
`10· ·about?
`11· · · · ·A.· ·Yes.· Let's -- why don't we just connect
`12· ·it with one of the exhibits.
`13· · · · ·Q.· ·Sure.
`14· · · · ·A.· ·And then that will help.
`15· · · · ·Q.· ·We might just want to continue, keep
`16· ·paragraph 4 in front of us.· It might make life
`17· ·easier.
`18· · · · ·A.· ·That would be Exhibit 1004.
`19· · · · ·Q.· ·Yes.· For the record I think it is 1004
`20· ·in both IPRs that we're here to talk about today.
`21· ·So, okay?
`22· · · · ·A.· ·I think that's correct, but some of the
`23· ·numbers are different, I think, so we will have to
`24· ·keep track of that.
`25· · · · ·Q.· ·Yes.· I think Morrison is different, but
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`Page 17
`·1· ·at least for the e740 User Manual, the numbers are
`·2· ·the same.
`·3· · · · ·A.· ·I believe so.
`·4· · · · ·Q.· ·Okay.· Who identified the e740 User
`·5· ·Manual as a potential piece of prior art?
`·6· · · · ·A.· ·I don't recall.· I know I did some search
`·7· ·for PDAs, and I did find manuals.· I don't recall if
`·8· ·it was the 740, but I did find some Toshiba manuals.
`·9· · · · ·Q.· ·So you don't know who identified the e740
`10· ·User Manual?
`11· · · · ·A.· ·Again, I didn't keep track of where that
`12· ·came from.
`13· · · · ·Q.· ·Okay.· How about Morrison, which we
`14· ·talked about, I believe, Morrison is Exhibit 1008 in
`15· ·the '837 IPR and it is Exhibit 1006 in the '870 IPR.
`16· ·Sorry to interrupt.
`17· · · · · · · Just again for clarify, if I refer to
`18· ·Morrison, you will understand what I am talking to,
`19· ·it is Exhibit 1006 and/or Exhibit 1008, right?
`20· · · · ·A.· ·Okay.· So, so for the '837 declaration,
`21· ·we're saying that as I have here it is labeled,
`22· ·Morrison is labeled 1006.· Is that correct?· Yes.
`23· · · · ·Q.· ·8.
`24· · · · ·A.· ·1008.· And you said for the '870 it is
`25· ·labeled 1006.
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`ZIPIT EX. 2006, pg. 6
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`·1· · · · ·Q.· ·Correct.
`·2· · · · ·A.· ·So since I don't have it in front of me,
`·3· ·I can't verify that, but let's accept that and put
`·4· ·that on the record and we will correct it later if
`·5· ·it is not correct.
`·6· · · · ·Q.· ·Right.· And just for clarity, I would
`·7· ·like us to refer to Morrison as Morrison, just so
`·8· ·that we know we don't have to say the numbers for
`·9· ·these exhibit numbers tied to their respective
`10· ·patent numbers.
`11· · · · ·A.· ·Agreed.
`12· · · · ·Q.· ·Okay.· So who identified Morrison?
`13· · · · ·A.· ·That one I didn't find.· That one I know
`14· ·the lawyers found.
`15· · · · ·Q.· ·What other references or exhibits were --
`16· ·did -- sorry, let me strike that.
`17· · · · · · · What other exhibits did the lawyers find?
`18· · · · ·A.· ·They found IM+, I think, and the other
`19· ·exhibits that I actually used throughout the report
`20· ·in the background section, and at least one of the
`21· ·740 exhibits I found, Toshiba exhibits.
`22· · · · ·Q.· ·Are there any other specific exhibits
`23· ·that you know that you found?
`24· · · · ·A.· ·Well, let's go and look at the background
`25· ·section.
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`Page 19
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`·1· · · · ·Q.· ·You are referring to --
`·2· · · · ·A.· ·I am going to give you paragraph 15.
`·3· · · · ·Q.· ·Okay.· Thank you.
`·4· · · · ·A.· ·Are you there?
`·5· · · · ·Q.· ·Go ahead.· Don't wait for me.
`·6· · · · ·A.· ·So the 802.11 standards, which is
`·7· ·Exhibit 2012, I provided.· I provided the
`·8· ·Exhibit 1013, so those two exhibits I provided.· So
`·9· ·those and, again, one of the -- one of the Toshibas
`10· ·I certainly provided because I remember searching
`11· ·for those.
`12· · · · · · · And there are other things in, I guess,
`13· ·the -- there may be other exhibits.· I don't have
`14· ·the exhibit list in front of me.
`15· · · · · · · So if there were some other exhibits
`16· ·here, I know that I provided some emoticon exhibits
`17· ·that I had found.· I don't know if that's in this
`18· ·one or the '870.
`19· · · · ·Q.· ·If we go back to paragraph 4 that, I
`20· ·believe you are referring to, is Exhibit 1011, which
`21· ·you say it is screenshots selling lists of emoticons
`22· ·used with various instant messaging programs.
`23· · · · ·A.· ·Right.· I remember finding those, that
`24· ·Wall Street article of the future of mobile
`25· ·broadband technology.
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`Page 20
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`·1· · · · ·Q.· ·Okay.· But it is fair to say you do not
`·2· ·remember finding the e740 User Manual?
`·3· · · · ·A.· ·I remember finding one of the two user
`·4· ·manuals.· I don't remember which one it was.
`·5· · · · ·Q.· ·Okay.· So then let's continue the
`·6· ·process.· So you found the prior art.· Then what
`·7· ·happened?
`·8· · · · ·A.· ·As I said, I formulated my opinions and I
`·9· ·provided -- I usually have a template and I work in
`10· ·a template and I bullet point my opinions, usually
`11· ·going -- first, I usually work the background
`12· ·section and then I go claim by claim.
`13· · · · · · · Then there is some, usually some -- there
`14· ·is before the background section, there is an
`15· ·understanding of the law section.· I usually let the
`16· ·lawyers provide that and then discuss it with them,
`17· ·what it means.
`18· · · · ·Q.· ·All right.· And let me just follow-up on
`19· ·the end of that.· So you are obviously not a lawyer,
`20· ·right?
`21· · · · ·A.· ·No, I am not.
`22· · · · ·Q.· ·And did you just -- you followed the
`23· ·Blackberry attorneys' instructions with respect to
`24· ·the law?
`25· · · · ·A.· ·What I have done is I have stated here
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`Page 21
`·1· ·what they have provided me as what the, what the law
`·2· ·means.· And I have discussed it with them.· And I
`·3· ·think I have an understanding of what they have
`·4· ·provided.
`·5· · · · ·Q.· ·Did you attempt to find any law on your
`·6· ·own or push back at all?
`·7· · · · ·A.· ·No.· Since I am not a lawyer, I wouldn't
`·8· ·know how to evaluate that.
`·9· · · · ·Q.· ·So, so is it fair to say that if the
`10· ·legal statements set forth in your declaration are,
`11· ·are incorrect, the premise of your report would be
`12· ·incorrect as well?
`13· · · · ·A.· ·I am not a lawyer, so I wouldn't be able
`14· ·to tell you that.
`15· · · · ·Q.· ·But you based your report and your
`16· ·opinions on the statements of law that you received
`17· ·from Blackberry's attorneys, correct?
`18· · · · ·A.· ·Well, more importantly, besides doing
`19· ·that, I looked at the claim language and evaluating
`20· ·what one of ordinary skill in the art would do, I
`21· ·evaluated the prior art in light of the claims and
`22· ·the specifications.
`23· · · · · · · So that's what I have been told to do in
`24· ·a sense independent of the law.
`25· · · · ·Q.· ·Sure.· But, for example, you don't know
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`ZIPIT EX. 2006, pg. 7
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`Page 22
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`·1· ·what the law is on anticipation under 35 U.S.C.
`·2· ·Section 102, correct?
`·3· · · · ·A.· ·Well, I have been told what it means.
`·4· · · · ·Q.· ·And if what you have been told is wrong,
`·5· ·then your opinions are wrong, right?
`·6· · · · ·A.· ·What I say, that the document does, could
`·7· ·still anticipate independent of whatever the legal
`·8· ·requirement is.· So if you want to give me a for
`·9· ·instance, if a law meant this, I could tell you
`10· ·whether it would actually, you know, change my
`11· ·opinion.
`12· · · · ·Q.· ·You mentioned PHOSITA.· For the record
`13· ·that is an acronym for a person having ordinary
`14· ·skill in the art, correct?
`15· · · · ·A.· ·That's correct.
`16· · · · ·Q.· ·How did you go about determining who you
`17· ·believed to be, is a PHOSITA?
`18· · · · ·A.· ·Well, since I have been in
`19· ·telecommunications and networking for over 30 years,
`20· ·and I know these type of products, and I know what
`21· ·people are typically taught from people I have
`22· ·worked with, I use that as my basis of typically you
`23· ·are going to have someone who has some sort of
`24· ·engineering or computer science degree.· And I think
`25· ·I have laid out exactly in Section 8 what those
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`Page 23
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`·1· ·people are.
`·2· · · · · · · And I was given also additional guidance,
`·3· ·which is in, again, the beginning of paragraph 8,
`·4· ·which summarize sort of the way you go about doing
`·5· ·it.
`·6· · · · ·Q.· ·Okay.· Fair enough.· Does paragraph 8
`·7· ·succinctly state everything that you considered with
`·8· ·respect to rendering your opinion on who a person of
`·9· ·ordinary skill in the art is for both the '837
`10· ·patent and the '870 patent?
`11· · · · ·A.· ·Well, it forms the basis.· And, of
`12· ·course, I rely on my 30-plus years of experience of
`13· ·dealing with these kinds of products and issues.
`14· · · · ·Q.· ·Okay.· Is there anything that you
`15· ·considered, other than what's set forth in paragraph
`16· ·8 in determining who you would believe to be as a
`17· ·PHOSITA?
`18· · · · ·A.· ·Let me read through that for a second.
`19· ·Yes, I think this is a fairly succinct statement to
`20· ·the way I went about it, as I have been instructed
`21· ·also, and, you know, in other cases I have been
`22· ·involved in.
`23· · · · ·Q.· ·And what were you instructed?
`24· · · · ·A.· ·Basically I was, again, since that part
`25· ·of the paragraph 8 is, you know, talking about
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`Page 24
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`·1· ·looking at the patent, how fast things are
`·2· ·developing, and so the front part of paragraph 8 up
`·3· ·to where I say "based on these factors," it is
`·4· ·typically what I look at when I evaluate what a
`·5· ·person of ordinary skill in the art would be.
`·6· · · · ·Q.· ·Sure.· My question is did the lawyers
`·7· ·give you any factors, if you will, that you should
`·8· ·analyze and consider to determine what a PHOSITA is?
`·9· · · · · · · MR. PRESPER:· I am going to object and
`10· ·instruct the witness not to answer.· That's work
`11· ·product.
`12· ·BY MR. RISLEY:
`13· · · · ·Q.· ·Are you going to follow that instruction?
`14· · · · ·A.· ·I am going to follow that instruction.
`15· · · · ·Q.· ·Okay.· Would you keep a list going?
`16· · · · · · · MR. RISLEY:· My understanding is that we
`17· ·need to call the Board for any objections.· I think
`18· ·that objection is inappropriate.
`19· · · · · · · You have submitted a declaration, two
`20· ·declarations, and in the '837 declaration in
`21· ·paragraph 4, I'm sorry, paragraph 8, you list some
`22· ·factors, and then you list a conclusion.· And I
`23· ·think we're entitled to know what all the factors
`24· ·were that you analyzed.
`25· · · · · · · MR. PRESPER:· That may be correct, but
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`Page 25
`·1· ·when you are asking about instructions he got from
`·2· ·attorneys, I am going to object on work product
`·3· ·grounds.· If you want to call the Board, we can take
`·4· ·it up later.
`·5· · · · · · · MR. RISLEY:· I think we're probably going
`·6· ·to have a pretty good list, so we will do it later.
`·7· · · · · · · MR. PRESPER:· That's fine.
`·8· ·BY MR. RISLEY:
`·9· · · · ·Q.· ·Mr. Brody, you are offering an opinion on
`10· ·what a PHOSITA is, correct?
`11· · · · ·A.· ·Yes, I am offering an opinion on what I
`12· ·believe a person having ordinary skill in the art
`13· ·is.
`14· · · · ·Q.· ·And the first seven lines of paragraph 8
`15· ·set forth the entire realm of the things that you
`16· ·considered in determining who a PHOSITA is, correct?
`17· · · · · · · MR. PRESPER:· I am going to object
`18· ·because it mischaracterizes prior testimony.
`19· · · · · · · THE WITNESS:· And, again, that forms the
`20· ·basis as I previously said.· It also relies on my
`21· ·understanding of what it is to do these type of, to
`22· ·resolve these problems when looking at these things
`23· ·and relying on my background and experience of 30
`24· ·plus years.
`25· ·BY MR. RISLEY:
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`ZIPIT EX. 2006, pg. 8
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`Page 26
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`·1· · · · ·Q.· ·Did you consider any case law that sets
`·2· ·forth a number of factors that should be weighed and
`·3· ·analyzed in determining what a PHOSITA is?
`·4· · · · ·A.· ·I was -- I do not have any case law on
`·5· ·that.· I looked at what the, was provided as the
`·6· ·basis to, for doing this type of exercise.· I guess
`·7· ·we're talking about the first seven lines of the
`·8· ·paragraph.
`·9· · · · ·Q.· ·Let's continue with the process.· So you
`10· ·generally, you gave me a general description of how
`11· ·you went about preparing your report.· And you
`12· ·talked about coming up with your opinions, I
`13· ·believe.
`14· · · · · · · I wonder if you could be more specific on
`15· ·that and walk us through the process for how you did
`16· ·that.
`17· · · · ·A.· ·Looked at the claim language where there
`18· ·were some claim constructions that I provided that
`19· ·were, you know, I guess outside what would be plain
`20· ·and ordinary meaning.· So I had to apply those claim
`21· ·constructions.
`22· · · · · · · And then I analyzed the claims
`23· ·element-by-element for the larger claims, with
`24· ·respect to the prior art.· And I looked at the prior
`25· ·art reference, tried to determine is, you know,
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`Page 27
`·1· ·everything within that one prior art reference.· And
`·2· ·then identify where it was, page number, if
`·3· ·appropriate, cite a picture, put down some language,
`·4· ·and if that was there for the first element in the
`·5· ·claim, then I went on to the second element.
`·6· · · · ·Q.· ·All right.· Let me back up.· So when you
`·7· ·say that you looked at the claim language, what did
`·8· ·you do?· How did you do that?· You just read the
`·9· ·claim or --
`10· · · · ·A.· ·The claims have to be read within the
`11· ·light of what a person of ordinary skill -- person
`12· ·having ordinary skill in the art would understand
`13· ·the claim to be based on plain and ordinary meaning
`14· ·to them.· And then were it not based on plain and
`15· ·ordinary meaning, applied the, applied the claim
`16· ·constructions that are in the declaration.
`17· · · · · · · And also this was all evaluated not only
`18· ·in using the claim language itself but looking at
`19· ·the specification and looking at the file history
`20· ·for the patent.
`21· · · · ·Q.· ·Okay.· And earlier you said that if, if
`22· ·-- you construed a couple of claims, I believe?
`23· · · · ·A.· ·No, I believe I --
`24· · · · ·Q.· ·I'm sorry, a couple of claim terms?
`25· · · · ·A.· ·Yes.
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`·1· · · · ·Q.· ·And I am just paraphrasing, I am not
`·2· ·directly quoting you, but I think you said because
`·3· ·it did not -- it had something outside the ordinary
`·4· ·meaning.· Can you tell me what you mean by that?
`·5· · · · ·A.· ·Well, in looking at a claim term, it
`·6· ·either means something to the person having ordinary
`·7· ·skill in the art or if it is something that might
`·8· ·not be readily apparent, it sort of needs to be
`·9· ·defined.
`10· · · · · · · And I discuss that, I believe, in my
`11· ·claim construction section, which starts at
`12· ·paragraph 27.
`13· · · · ·Q.· ·So, so please tell us how you go about
`14· ·determining whether or not it has a meaning that is
`15· ·readily apparent or not.
`16· · · · ·A.· ·I think I told you that.· I know what a
`17· ·person having ordinary skill in the art is.· I look
`18· ·at the claim and say how would that person evaluate
`19· ·this claim based on the specification and the file
`20· ·history and the language within the claim itself.
`21· · · · ·Q.· ·My question is are you deciding what you
`22· ·believe to be the ordinary meaning first and then
`23· ·reading the specification and the file history or
`24· ·whatever else you are talking about or what -- I
`25· ·would like to understand that.
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`Page 29
`·1· · · · ·A.· ·No, you have to, you have to read the --
`·2· ·you have to have an understanding of the
`·3· ·specification and the file history in order to
`·4· ·construct what that meaning would be, what that
`·5· ·plain and ordinary meaning would be.· That's my
`·6· ·understanding of what I have been told.
`·7· · · · ·Q.· ·So, so you -- your starting point is to
`·8· ·have no meaning in mind, you read the patent and the
`·9· ·file history and then the claims?
`10· · · · ·A.· ·It is a -- it is a process that is
`11· ·cyclical.· Sometimes you read the specification
`12· ·first.· Sometimes you read the claims first. I
`13· ·typically read the specification first when I look
`14· ·at a patent.
`15· · · · ·Q.· ·Right.· And I would like to know what you
`16· ·did in this case.
`17· · · · ·A.· ·And in this case I already knew about the
`18· ·patent.
`19· · · · ·Q.· ·Okay.· So I am trying to understand how
`20· ·you went about construing the claims.· And I would
`21· ·like to know what your starting point was.
`22· · · · ·A.· ·The starting point was the claim language
`23· ·evaluated in terms of the specification and the file
`24· ·history as a person having ordinary skill in the art
`25· ·would.
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`·1· · · · ·Q.· ·Maybe, maybe go from the abstract.· Let's
`·2· ·go with the world "handheld," right?· I think that's
`·3· ·one of the first terms.
`·4· · · · ·A.· ·Um-hum.
`·5· · · · ·Q.· ·How did you construe the word "handheld"?
`·6· · · · ·A.· ·Pretty obvious to someone, a person of
`·7· ·ordinary skill in the art reading the specification
`·8· ·and file history, it is something I can hold in my
`·9· ·hand.
`10· · · · ·Q.· ·Okay.· And you thought that before you
`11· ·