UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`
`
`
`
`APPLE, INC.
`Petitioners,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.
`Patent Owner
`
`____________
`
`Case: IPR2015-00369
`U.S. Patent No. 6,128,290
`
`____________
`
`PATENT OWNER DSS TECHNOLOGY MANAGEMENT, INC.’S
`
`MOTION FOR OBSERVATION REGARDING CROSS-EXAMINATION
`
`OF APPLE, INC.’S TECHNICAL EXPERT, DR. HU
`
`
`
`
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`
`
`
`
`APPLE, INC.
`Petitioners,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.
`Patent Owner
`
`____________
`
`Case: IPR2015-00369
`U.S. Patent No. 6,128,290
`
`____________
`
`PATENT OWNER DSS TECHNOLOGY MANAGEMENT, INC.’S
`
`MOTION FOR OBSERVATION REGARDING CROSS-EXAMINATION
`
`OF APPLE, INC.’S TECHNICAL EXPERT, DR. HU
`
`
`
`
`
`
`
`TABLE OF ABBREVIATIONS
`
`Abbreviation
`
`Explanation
`
`‘290 Patent
`
`U.S. Patent No. 6,128,290 (Ex. 1001)
`
`Natarajan
`
`U.S. Patent No. 5,241,542 (Ex. 1003)
`
`Neve
`
`Ex.
`
`__:__
`
`U.S. Patent No. 4,887,266 (Ex. 1004)
`
`This refers to the indicated exhibit
`
`This refers to the indicated column or page and
`
`lines of the patent, patent publication or deposition
`
`transcript
`
`POSA
`
`Person of ordinary skill in the art
`
`Schwartz
`
`Mischa Schwartz, Telecommunications Networks: Protocols,
`
`Modeling and Analysis, Addison-Wesley, 1988 (Ex. 1012)
`
`
`1
`
`
`
`
`
`
`
`Pursuant to the Joint Stipulation to Modify Due Dates 4 and 5 in this
`
`proceeding (Paper 25), and the Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`48,756, 48,768 (Aug. 14, 2012), DSS Technology Management, Inc., (“Patent
`
`Owner”), respectfully brings this Motion for Observation Regarding Cross-
`
`Examination of Apple, Inc.'s (“Petitioner”) Technical Expert, Dr. Jing Hu. Patent
`
`Owner submits the following observations regarding Dr. Hu’s testimony during her
`
`deposition on February 17, 2016 (Ex. 2018).
`
`
`
`
`
`Observation #1
`
`In Ex. 2018, from 61:14 to 74:6, Dr. Hu refused to provide specific citations
`
`to support her conclusion that the combination of Natarajan and Neve expressly
`
`teaches a server transmitter energized in low-duty cycle RF bursts. Dr. Hu testified
`
`that she understood “expressly” to mean “the concept or the mechanism is taught in
`
`exact words as the ‘290 patent or in words and phrases that mean the exact tech- --
`
`that have the same technical meaning to a person of ordinary skill in the art.” Id. at
`
`62:14-19. When subsequently asked to identify the sections of Natarajan and Neve
`
`that expressly disclose a server transmitter energized in low-duty cycle RF bursts,
`
`Dr. Hu repeatedly testified that the support is provided in paragraphs 42, 43, and the
`
`next 20 or 30 pages of her declaration. See id. 63:10-74:6. This testimony is relevant
`
`because Dr. Hu was unable to provide specific support for her conclusion that the
`
`combination of Natarajan and Neve expressly teaches a server transmitter energized
`
`
`
`2
`
`
`
`in low-duty cycle RF bursts in accordance with her understanding of the term
`
`“expressly.”
`
`Observation #2
`
`
`
`In Ex. 2018, at 98:16-22, Dr. Hu read a portion of her declaration, stating,
`
`“Mr. Dezmelyk's lack of understanding of HDLC is further highlighted by his
`
`assertion that systems using idle words can have, for example, ten consecutive 1's.
`
`(Dezmelyk Depo at 98:1-13.) HDLC cannot have more than six consecutive 1's,
`
`otherwise an error is declared. (Schwartz, page 22 135-136.)” When Dr. Hu was
`
`subsequently asked if “it’s possible for an HDLC protocol to have a continuous
`
`string of 1’s,” Dr. Hu testified that some point-to-multipoint systems, operating in
`
`an HDLC protocol, may transmit invalid strings of 1’s (more than 6 consecutive 1’s)
`
`to fill the inter-frame time. Id. at 115:8-116:13; see also 110:22-111:7 (“A person of
`
`ordinary skill in the art at the time frame looking at this particular paragraph would
`
`understand that by using invalid data packets of logical -- of continuous 1’s in HDLC
`
`could be a mechanism that’s suitable”). This testimony is relevant because it
`
`contradicts Dr. Hu’s attempt to discredit Mr. Dezmelyk’s based on his assertion that
`
`HDLC systems may employ idle words having more than six consecutive 1’s.
`
`Observation #3
`
`
`
`3
`
`
`
`
`
`In Ex. 2018, at 120:16-121:2, Dr. Hu testified, “One of ordinary skill in the
`
`art at the time frame of '96 and '97 would understand that [the] number [of
`
`consecutive 1’s] is system-specific. It will be a number that is agreed upon -- agreed
`
`upon by all units or all stations involved in the system or dictated by the central
`
`station that will signal that number to the rest of the system so everybody involved
`
`in the communication system has a consistent understanding of what constitutes the
`
`idle word.” This testimony is relevant because it directly contradicts Dr. Hu’s
`
`attempt at discrediting Mr. Dezmelyk’s assertion that systems using idle words can
`
`have, for example, ten consecutive 1's. Id. at 98:16-19; see also 1014 at pg. 35, ¶ 74.
`
`Observation #4
`
`In Ex. 2018, at 95:18-21, Dr. Hu testified, “I think in general usage of HDLC,
`
`outside of Natarajan, it's possible for an idle word to be transmitted using the HDLC
`
`protocol sporadically.” This testimony is relevant because it directly contradicts Dr.
`
`Hu’s testimony, in Ex. 1014 at pg. 35, ¶ 75, that “a POSA would understand that
`
`HDLC does not use idle words.” See also pg. 34, ¶ 72.
`
`Observation #5
`
`
`
`In Ex. 2018, at 114:22 to 115:1, Dr. Hu testified, “sending invalid 1 bits may
`
`not to be in all the start/stop transmission design. Whether it’s required will be based
`
`on the application and the system design itself.” This testimony is relevant because
`
`
`
`4
`
`
`
`it explains that the transmission of idle words may be useful depending on the
`
`application and the design of the system, which contradicts Dr. Hu’s testimony, in
`
`Ex. 1014 at pg. 34, ¶ 73, that “the use of continuous idle words in Natarajan, which
`
`DSS asserts would assist with synchronization, would be pointless in HDLC . . . .
`
`[because] HDLC has its own mechanism–start/stop flags–for synchronization.”
`
`Observation #6
`
`In Ex. 2018, at 129:21-22, Dr. Hu testified, “The transceiver will stay on for
`
`that time slot.” See also 129:15-17 (“when it is transmitted, the transmitter and
`
`receiver will stay on for the duration of the transmission in that time slot.”) This
`
`testimony is relevant because it directly contradicts the declaration of the inventor,
`
`Philip P. Carvey, as provided in Apple Inc.’s Responsive Claim Construction Brief
`
`in DSS Technology Management, Inc. v. Lenovo (United States), Inc., No. 6:13-cv-
`
`00919-JDL (E.D. Tex.), in which Mr. Carvey averred in paragraph 7 that
`
`“transceiver elements are energized for a small fraction of the time slot.”
`
`Observation #7
`
`In Ex. 2018, at 147:5-9, Dr. Hu testified, “The low-duty cycle – the duty cycle
`
`is calculated over a cycle of communication that will include subframes A, B and C,
`
`as well as over time the -- how transmitter and receiver work in those cycles.” This
`
`testimony is relevant because it contradicts the declaration of Dr. Hu as provided in
`
`
`
`5
`
`
`
`Apple Inc.’s Responsive Claim Construction Brief in DSS Technology Management,
`
`Inc. v. Lenovo (United States), Inc., No. 6:13-cv-00919-JDL (E.D. Tex.), in which
`
`Dr. Hu opined in paragraph 28 that “each frame [of the ‘290 patent] is divided into
`
`‘sectors’ (or ‘sections’), which include 64 time slots. ‘290 patent at 7: 20-33. A
`
`maximum of three RF bursts can be assigned per sector . . . And the position of each
`
`burst is dictated by a one . . . . Because the number of slots when a unit’s transmitter
`
`is depowered is substantially greater than the number of slots when the unit’s
`
`transmitter is energized, the unit is said to have a low duty cycle.”
`
`
`
`
`
`
`
`Date: February 22, 2016
`
`Respectfully submitted,
`
`
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`SMITH & HOPEN, PA
`
`
`
`
`
`/Nicholas Pfeifer /
`
`
`
`
`
`Nicholas Pfeifer
` Back-Up Counsel for Patent Owner
`Registration No. 70,568
`
`
`180 Pine Avenue North
`Oldsmar, FL 34677
`Tel: 813-925-8505
`Fax: 800-726-1491
`Email: andriy.lytvyn@smithhopen.com
`
`
`
`
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that, in accordance with 37 C.F.R. §
`
`42.6(e), the above Preliminary Response of the Patent Owner and a copy of the
`
`Exhibits were served via electronic mail on March 30, 2015, in their entirety upon
`
`the following:
`
`
`
`David K.S. Cornwell, Lead Counsel for Petitioner
`davidc-PTAB@skgf.com
`
`Mark W. Rygiel, Back-Up Counsel for Petitioner
`mrygiel-PTAB@skgf.com
`
`
`
`
`Date: February 22, 2016
`
`/Nicholas Pfeifer /
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Nicholas Pfeifer
` Back-Up Counsel for Patent Owner
`Registration No. 70,568
`
`SMITH & HOPEN, P.A.
`180 Pine Avenue North
`Oldsmar, FL 34677
`(813) 925-8505
`
`
`7
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