HM Electronics, Inc.
`Exhibit 1016
`
`APP3202
`
`
`Exhibit 1016
`
`APP3202
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Page 1
` ________________________________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ________________________
` HM ELECTRONICS, Inc.,
` Petitioner,
` v.
` 3M INNOVATIVE PROPERTIES COMPANY,
` Patent Owner.
` ________________________
` Case IPR 2015-00482
` Patent No. 8,694,040
` and
` Case IPR 2015-00491
` Patent No. 8,694,040 B2
` _________________________________________________
`
` The Deposition of THOMAS GAFFORD,
`taken pursuant to Notice of Taking Deposition, taken
`before Christine K. Herman, RPR, CRR, a Notary Public
`in and for the County of Anoka, State of Minnesota,
`taken on the 22nd day of October, 2015, at TCF Tower,
`121 South Eighth Street, 2nd Floor, Minneapolis,
`Minnesota, commencing at approximately 9:41 a.m.
`
`APP3203
`
`
`
` A P P E A R A N C E S
`
`Page 2
`
`APPEARING FOR AND ON BEHALF OF THE PETITIONER:
` FREDRIKSON & BYRON, PA
` BY: ADAM R. STEINERT, ESQUIRE
` 200 South Sixth Street
` Suite 4000
` Minneapolis, Minnesota 55402
` Email: asteinert@fredlaw.com
`
`APPEARING FOR AND ON BEHALF OF THE PATENT OWNER:
` SCHWEGMAN, LUNDBERG & WOESSNER, PA
` BY: TIMOTHY E. BIANCHI, ESQUIRE
` JUSTIN McCARTHY, ESQUIRE
` 1600 TCF Tower
` 121 South Eighth Street
` Minneapolis, Minnesota 55402
` Email: tbianchi@slwip.com
` jmccarthy@slwip.com
`
` * The original is in the possession of
` Attorney Adam Steinert *
`
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`APP3204
`
`
`
`Page 3
`
` I N D E X
` PAGE:
`THOMAS GAFFORD
`Examination by Mr. Steinert . . . . . . . . . 4
`Examination by Mr. Bianchi . . . . . . . . . . 130
`
`Certificate of Witness . . . . . . . . . . . . 135
`Certificate of Court Reporter. . . . . . . . . 136
`
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`APP3205
`
`
`
`Page 4
`
` P R O C E E D I N G S
`Whereupon,
` THOMAS GAFFORD,
` a witness in the above-entitled matter,
` after having been first duly sworn,
` deposes and says as follows:
` EXAMINATION
`BY MR. STEINERT:
` Q Good morning, Mr. Gafford.
` A Good morning.
` Q My name is Adam Steinert. I represent the
`Petitioner, HME, in this matter. I understand that
`you've had your disposition taken several times
`before.
` A Yes.
` Q All right. I won't overly bore you with
`the standard ground rules, but is it fair to say
`that you understand that we should take turns
`speaking so that the court reporter can take
`everything down, that the testimony you're going to
`give today is the best testimony you're able to
`give, and that there is nothing impairing your
`ability to testify to the best of your ability
`today?
` A Yes to all of your questions.
`
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`APP3206
`
`
`
`Page 5
`
` Q Great. I'm going to hand you two
`deposition notices.
` MR. STEINERT: Tim, given the way the PTAB
`numbers things I wasn't going to be marking
`exhibits, unless you have an objection to that.
` MR. BIANCHI: If these are the notices
`filed yesterday we have no objection.
` MR. STEINERT: They are the notices filed
`yesterday.
` MR. BIANCHI: Okay.
` Q (BY MR. STEINERT) Mr. Gafford, have you
`seen these deposition notices before?
` A No.
` Q Do you understand that your testimony here
`today is pursuant to these deposition notices? And
`feel free to take a look at them if you need to.
` A Your question is?
` Q Do you understand that your deposition
`testimony here today is pursuant to these two
`deposition notices in IPR numbers 2015-00491 and
`2015-00482?
` A Yes.
` Q Okay. Do you understand that you're
`testifying here today as an expert witness on behalf
`of 3M?
`
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`APP3207
`
`
`
`Page 6
`
` A Yes.
` Q You've testified as an expert witness
`before?
` A Yes.
` Q I understand from conversations with
`Mr. Bianchi that after today you won't be available
`for the next three weeks or so. Is that correct?
` A At a minimum, yes.
` Q Do you mind telling me what you'll be
`doing during that time period?
` A Next Thursday -- or next Tuesday I'm
`having low back surgery to correct a pinched nerve,
`and at a minimum the -- it will take two weeks
`before I'm up and about and sufficiently cleared of
`the effects of anesthesia and the immediate surgical
`pain to be able to function intellectually, and it
`may take longer than that.
` Q All right. Thank you for sharing that
`information. And if you don't mind my asking, when
`was that surgery first scheduled?
` A I'd have to look at my calendar, but
`something on the order of -- Let's see. Basically
`about two weeks ago, when my doctor determined that
`the ongoing efforts of physical therapy weren't
`going to clear my condition and that surgery would
`
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`APP3208
`
`
`
`Page 7
`
`be required.
` Q And when did you first communicate that
`unavailability to Mr. Bianchi?
` A Pretty -- You know, I don't remember. I
`know that I had earlier communicated that I had some
`time constraints coming up at around about the
`30-day point from having -- from the time I filed my
`declarations in these matters, that I had some time
`constraints coming up. And I don't remember how
`soon after my meeting with the doctor that I
`communicated my surgery, proposed surgery date, but
`it was pretty soon. It was -- I'm pretty sure it
`was only a couple of days, and -- Yeah. I think
`that's right. A few days. No more.
` Q So it's fair to say that around the time
`or shortly after you filed your declarations in
`these two IPRs you were aware you were going to have
`some significant time constraints during the
`two-month period?
` A From a completely different --
` MR. BIANCHI: Objection.
` A That's not quite correct. You're
`confusing the two pieces of my answer, and I'll try
`to clarify it for you. I had time constraints due
`to projects coming up and a trial that's going to
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`APP3209
`
`
`
`Page 8
`take place in December, trial prep and some other
`matters that were going to severely constrain my
`November time in any case. That's when I knew
`about, within -- around about 30 days after I filed
`my declarations.
` Q All right. Thank you for that
`clarification.
` A And by the way, just while we're talking
`about sort of logistics sorts of things, I need to
`take a break every hour. I don't know when we
`started, but after 50 minutes of testimony take a
`10-minute break. I need to walk around.
` Q I have no objection to that, although of
`course I would like to complete any pending
`questions. If we are in the middle of a set of
`close questions, I'd appreciate a little bit of
`flexibility on the exact 50-minute mark, but I have
`no problem with your taking breaks to make sure you
`get -- to stretch and whatever other comfort issues
`there are.
` A I'll do my best.
` Q Great. Mr. Gafford, I'm going to hand you
`what 3M has previously marked as 3M Exhibit 2003 in
`the 491 IPR. Do you recognize that document?
` A Yes.
`
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`APP3210
`
`
`
`Page 9
`
` Q What is that document?
` A Declaration of Thomas A. Gafford in
`support of patent owner's response in the 491
`matter.
` Q All right. Do you understand that the 491
`matter relates to a primary prior art reference
`called the Gosieski reference?
` A Yes.
` Q Is it okay with you if I refer to your
`declaration in this matter as the Gosieski
`declaration? Because I have a hard time keeping the
`numbers straight in my head.
` A That's fine with me.
` Q Who drafted the Gosieski declaration?
` A I drafted the core of the technical
`responses. Counsel put together the whole of the
`document, based on my technical writings and our
`discussions.
` Q And when you say counsel, who specifically
`did you work with?
` A For the most part Justin.
` Q And when you say Justin you're referring
`to the Justin who's sitting in this room right now?
` A Yes. I apologize. I keep forgetting his
`last name, because I'm working with a Justin in
`
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`APP3211
`
`
`
`Page 10
`another matter and I get the last names mixed up,
`but this one.
` Q Understood. You have attached as
`Appendix A to the Gosieski declaration your
`curriculum vitae; is that correct?
` A Yes.
` Q Is that CV current as of today?
` A Let's see. I don't think it has this
`matter in it. Let me see what the newest bits are
`here. I believe it is.
` Q All right. In paragraph 5 of your
`Gosieski declaration -- If you turn to paragraph 5.
`I want to make sure that you're able to follow
`along. You state, I have extensive knowledge and
`experience with analog and digital electronic
`circuitry, digital computer technology, computer
`peripherals, control systems, digital
`communications, operating systems and related
`software and hardware components. My technical
`expertise relevant to the subject matter of the
`audio intercom system claimed in the '040 patent
`includes my understanding of various technology
`systems such as voice processing systems, radio and
`telephone communication devices, broadcasting
`equipment, client-server hardware and
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`APP3212
`
`
`
`Page 11
`
`consumer-operated electronic devices.
` Is that accurate?
` A Yes.
` Q Do you believe that that technical
`expertise in voice processing systems, radio and
`telephone communication devices, broadcasting
`equipment, client-server hardware and
`consumer-operated electronic devices is relevant to
`understanding the '040 patent?
` A Yes.
` Q Do you believe that experience in those
`areas would qualify you as an expert in the field of
`invention of the '040 patent?
` A Yes.
` Q You are currently -- You currently own and
`operate a consulting firm called Gafford Technology;
`is that correct?
` A That's right.
` Q I understand from paragraph 9 of your
`Gosieski declaration that one of the functions of
`Gafford Technology is to provide intellectual
`property and litigation consulting assistance. Is
`that correct?
` A Yes.
` Q What percentage of the revenues of Gafford
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`APP3213
`
`
`
`Page 12
`Technology come from litigation or intellectual
`property consulting?
` MR. BIANCHI: Objection.
` A Since about 2009, a hundred percent.
` Q (BY MR. STEINERT) All right. In
`paragraph 10 of your Gosieski declaration you state
`that the opinions expressed in this declaration are
`mine and they were developed after studying the '040
`patent, relevant portions of the prosecution
`history, relevant prior art publications, the
`petition, the institution decision and the
`declaration of Scott Hoeptner.
` Do you see that?
` A I do.
` Q Is there anything else that you consulted
`in preparing this declaration?
` A No, I don't think so.
` Q Is there anything else that you consulted
`in preparing the companion PRO850 declaration?
` A No.
` Q Is there anything else that you consulted
`in preparing for your deposition today?
` A No.
` Q Is there anything --
` A I'm sorry. I have read portions of
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`APP3214
`
`
`
`Page 13
`
`Mr. Hoeptner's deposition transcript.
` Q All right. So other than the things --
`And to be clear, had you read portions of
`Mr. Hoeptner's deposition transcript prior to
`preparing these two declarations?
` A No.
` Q So you read the deposition transcript
`after preparing the declarations?
` A That's right.
` Q In preparation for this deposition?
` A Yes.
` Q Other than the items listed in paragraph
`10 of the Gosieski declaration and subsequently
`reviewing portions of Mr. Hoeptner's deposition
`transcript, have you done anything else to educate
`yourself as an expert in this matter?
` A Other than my attention, when I buy fast
`food now, is invariably drawn to the headset and the
`beltpac of the employees, no.
` Q I completely understand. I have never
`paid so much attention to coffee shop headsets as I
`have since starting this case.
` So you didn't talk personally to any
`witnesses with factual knowledge related to these
`matters, did you?
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`APP3215
`
`
`
`Page 14
`
` A No.
` Q You didn't talk to Mr. Awiszus, the listed
`inventor on the '040 patent?
` A No.
` Q Have you reviewed any of the declarations
`Mr. Awiszus has submitted in related matters?
` A No, I've not.
` Q Did you review the re-examination file
`history of either of the parent patents?
` A No.
` Q Did you ask to do any of those things?
` A No.
` Q Have you reviewed any of the litigation
`documents in either of the two lawsuits 3M filed
`against HME?
` A No.
` Q Did you ask to look at those?
` A No.
` Q In paragraph 11 of your Gosieski
`declaration you state that you believe that the
`relevant technical field for analyzing the '040
`patent is audio communications equipment,
`encompassing the claimed configuration of an audio
`intercom configured for use in the quick service
`restaurant industry.
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`APP3216
`
`
`
`Page 15
`
` Is that correct?
` A Yes.
` Q So you believe that's the field of use for
`this invention?
` MR. BIANCHI: Objection. Form.
` A I didn't say anything about field of use.
`I said -- The technical field for analyzing this is
`what I say in this paragraph.
` Q (BY MR. STEINERT) Do you draw a
`distinction between the technical field for
`analyzing an invention and the field of use of the
`invention?
` MR. BIANCHI: Objection. Form.
` A I don't have a grasp on the legal
`distinction of field of use. I haven't considered
`it up to now.
` Q (BY MR. STEINERT) All right. In
`paragraph 12 you say, as described above, I have
`extensive experience in the relevant technical
`field, including my consulting experience relating
`to the analysis of audio and telecommunication
`products. I have analyzed and rendered opinions on
`voicemail systems, hearing aids, voice prompting and
`telephone announcement systems, voice storage and
`retrieval systems, and cellular telephone systems
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`APP3217
`
`
`
`Page 16
`
`with remote setup of handsets. Based on my
`experience, I have an established understanding of
`the relevant technical field in the relevant time
`period, and I readily understand the level of
`knowledge that would have been known by a person of
`ordinary skill in the art in this relevant technical
`field during the relevant time period. I am an
`expert in the technology of the systems disclosed
`and claimed in this matter.
` Do you see that?
` A I do.
` Q Do you believe that having knowledge of
`voicemail systems, hearing aids, voice prompting,
`telephone announcement systems, voice storage and
`retrieval systems and cellular telephone systems
`would make someone an expert in the field of this
`invention?
` A Yes.
` Q The analysis and opinions you discuss in
`paragraph 12, were those all rendered in the context
`of providing litigation consulting services?
` MR. BIANCHI: Objection. Form.
` A Yes.
` Q (BY MR. STEINERT) Is there any experience
`you list in paragraph 12 that does not relate to
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`APP3218
`
`
`
`Page 17
`
`providing litigation consulting advice?
` MR. BIANCHI: Objection. Form.
` A I should probably make the distinction
`that, as to everything that's listed here, no.
`However, in order to be able to do this work I had
`to have a foundation, educational, experiential
`foundation in the technology of the elements of
`these systems such as audio, such as analog
`amplifiers, analog-to-digital and digital-to-analog
`converters, storage systems and communications
`devices and so on. But what I list here is my
`analysis of those things is rooted in my education
`and experience of systems using these -- using -- of
`which these systems are comprised.
` Q (BY MR. STEINERT) All right. To be
`clear, I'm not asking about the qualifications that
`allowed you to render opinions regarding voicemail
`systems, hearing aids, voice prompting or any of the
`other things listed in paragraph 12. My question
`is, the analysis and opinions you cite in paragraph
`12, were each of those given in the context of
`litigation consulting?
` A Yes.
` Q Was there -- Is there anything listed in
`paragraph 12 that was not done in the context of
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`APP3219
`
`
`
`Page 18
`
`litigation consulting?
` A No.
` Q Before you became a litigation consultant
`had you ever designed a wireless intercom system?
` A No.
` Q Before you became a litigation consultant
`had you ever worked on a wireless intercom system?
` A No.
` Q Before you became a litigation consultant
`had you ever designed a product for sale to the
`quick service restaurant or QSR market?
` A No.
` Q Before you became a litigation consultant
`had you ever worked on any product intended for sale
`to the QSR market?
` A No.
` Q Including your work as a litigation
`consultant have you ever previously worked on any
`project that involved wireless intercoms?
` A No.
` Q Including your work as a litigation
`consultant have you ever previously marked on any
`project that involved a product being marketed to
`the quick service restaurant market?
` A No.
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`APP3220
`
`
`
`Page 19
` Q Turning to paragraph 13 of your Gosieski
`declaration, you say a person having ordinary skill
`in the art during the relevant time period would
`have been a person with at least a bachelor's degree
`in electrical engineering, computer engineering, or
`another similar information technology-based
`engineering discipline, and at least one to two
`years of experience in the development, design,
`implementation, or analysis of
`audio/telecommunication equipment and digital
`control systems and their components.
`Alternatively, such a person of ordinary skill in
`the art would have been a person with less formal
`education but more extensive experience in the
`development, design, implementation, or analysis of
`audio/telecommunication equipment and digital
`control systems.
` Is that accurate?
` MR. BIANCHI: Objection. Form.
` A I believe you read it correctly.
` Q (BY MR. STEINERT) Okay. You believe that
`that accurately states the level of ordinary skill
`in the art?
` A I do.
` Q So in your opinion a person of ordinary
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`APP3221
`
`
`
`Page 20
`skill in the art would have had one to two years of
`experience in the development, design,
`implementation or analysis of
`audio/telecommunication equipment?
` MR. BIANCHI: Objection. Form.
` A Yes.
` Q (BY MR. STEINERT) As of 2006 did you
`personally have at least one to two years of
`experience in the development of
`audio/telecommunication equipment?
` MR. BIANCHI: Objection. Form.
` A Other than providing the football coaches
`in my high school with a very inexpensive, very
`reliable and very clear wired handset system for
`field house to field communications, no.
` Q (BY MR. STEINERT) Okay. And that was a
`wired system?
` A It was.
` Q Do you believe that system was an
`intercom?
` A Absolutely.
` Q As of 2006 did you personally have at
`least one to two years of experience in the design
`of audio/telecommunication equipment?
` MR. BIANCHI: Objection. Form.
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`APP3222
`
`
`
`Page 21
`
` A No.
` Q (BY MR. STEINERT) As of 2006 did you
`personally have at least one to two years of
`experience in the implementation of
`audio/telecommunication equipment?
` MR. BIANCHI: Objection. Form.
` A Actually, there's a problem here with your
`use and my answers so far. I wrote here
`audio/telecommunication equipment, meaning in the
`alternative, and I have considerable experience in
`digital data and video communication equipment, but
`not audio.
` Q (BY MR. STEINERT) So your answers were
`specifically that you did not have that level of
`experience with audio communications as of that
`time; is that correct?
` MR. BIANCHI: Objection. Form.
` A As to the development, design and
`implementation of audio equipment that's correct.
` Q (BY MR. STEINERT) Okay. As of 2006 did
`you have at least one to two years of experience in
`the analysis of audio communication equipment?
` MR. BIANCHI: Objection. Form.
` A Yes.
` Q (BY MR. STEINERT) Was that experience in
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`APP3223
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`
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`Page 22
`
`the context of litigation consulting?
` A Yes.
` MR. BIANCHI: Same objection.
` Q (BY MR. STEINERT) Setting aside
`litigation consulting, as of 2006 did you have at
`least one to two years of experience in the analysis
`of audio equipment?
` MR. BIANCHI: Objection. Form.
` A Again, this is audio/telecommunication,
`and audio, yes, because I spent my life from about
`age nine through mid college analyzing in
`preparation for preparing all manner of audio
`equipment. Not audio communication, although at one
`point I did fix somebody's two-way radio. But for
`the most part it was audio reproduction equipment.
`It was repairing and in some cases building, but
`mostly repairing. My education occurred as a result
`of having service gigs where it was necessary to
`study the documentation of a product to understand
`how it worked, and I did that for years to earn a
`living between, say -- audio/telecommunication
`equipment, age nine to about age 21 or so.
` Q (BY MR. STEINERT) You said that was audio
`reproduction equipment?
` A That's right.
`
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`APP3224
`
`
`
`Page 23
`
` MR. BIANCHI: Objection. Form.
` A It's audio equipment. Its particular
`application was reproduction.
` Q (BY MR. STEINERT) It was not audio
`communication equipment?
` MR. BIANCHI: Objection. Form.
` A Correct.
` Q (BY MR. STEINERT) It wasn't an intercom?
` A No intercoms. Well, that's not quite
`true. Every once in a while -- I had a few
`customers when I worked for a TV shop whose Nutone
`intercom built into their house wasn't working, a
`combination of the electronics of the intercom
`failing or of a breakdown of the wiring. I remember
`making house calls on some house intercom systems.
` Q So you made some house calls to repair
`house intercom systems?
` A Yes.
` Q Did any of that experience relate to quick
`service restaurants?
` A No.
` Q Turning to paragraph 14 of your Gosieski
`declaration, you state that quick service
`restaurants utilize wireless intercom systems to
`take orders from customers outside a restaurant
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`APP3225
`
`
`
`Page 24
`building, such as from customers in a drive-through
`lane. Orders may be taken in proximity to a menu in
`the drive-through lane using equipment, such as a
`microphone, speaker, or some other apparatus that
`allows the customer to communicate an order to staff
`at the quick service restaurant establishment. The
`wireless intercoms used in a quick service
`restaurant setting are also typically configured in
`a "full duplex" communication mode, to allow
`listening and talking to occur between the parties
`at the same time.
` Do you see that?
` A I do.
` Q Who drafted that paragraph?
` A I did, derived from what I've read so far
`and personal observation.
` Q Now, when you say what you read so far,
`specifically what are you referring to?
` A The disclosure of the product in the '040
`and observation of being a customer of quick service
`restaurants.
` Q So this is based on a combination of
`reading the '040 patent and going to drive-through
`restaurants?
` MR. BIANCHI: Objection. Form.
`
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`APP3226
`
`
`
`Page 25
`
` A Yes.
` Q (BY MR. STEINERT) Is there anything else
`that went into this?
` MR. BIANCHI: Objection. Form.
` A No.
` Q (BY MR. STEINERT) In paragraph 15 you
`state, typically the ordering apparatus is in
`communication with the base station inside the
`establishment. In cases using audio, the base
`station inside the establishment wirelessly
`transmits audio received at the ordering point to
`one or more headsets worn by one or more employees
`of the establishment, who take the order, and use
`the headsets to communicate with the customer in the
`drive-through lane and with other employees.
` Do you see that?
` A Yes.
` Q Who drafted that paragraph?
` A I did.
` Q What was your basis for preparing that
`paragraph?
` A Similar. The '040 patent disclosure
`observation of how these systems are used in the
`world, and I may have also relied on some literature
`for systems in the prior art, such as the 3M and HME
`
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`APP3227
`
`
`
`Page 26
`systems that also perform -- are also used in these
`applications.
` Q So everything in here comes from reading
`those documents?
` A Yeah.
` MR. BIANCHI: Objection. Form.
` A Yes.
` Q (BY MR. STEINERT) And this paragraph
`doesn't include any citations to those sources, does
`it?
` A No, it does not.
` Q Prior to the advent of wireless intercoms
`do you know if quick service restaurants performed
`all of these same functions using hard-wired
`intercoms?
` A I believe they did, and I don't know where
`I read that, but I'm pretty sure wired preceded
`wireless.
` Q And you know that from reading the '040
`patent and some combination of the cited prior art?
` MR. BIANCHI: Objection. Form.
` A Probably. I'm not certain, but I've seen
`reference -- I've seen mention made of wired
`systems. And it makes sense -- Given that the
`reliability and cost of small, short-range radios
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`APP3228
`
`
`
`Page 27
`has improved radically over the past 20 years, it
`makes sense that wired would have preceded wireless.
` Q (BY MR. STEINERT) Turning to paragraph 16
`of your Gosieski declaration, you say, wireless
`communication intercoms used in quick service
`restaurants typically facilitate orders between
`restaurant staff and customers at a fixed location,
`such as at an outdoor microphone and speaker in the
`drive-through lane. Quick service restaurants are
`relatively high noise environments, and the
`communication between the customer and the
`restaurant staff is likely to encounter background
`noise from automobiles, the surrounding environment,
`other employees and patrons of the restaurant,
`restaurant equipment, and the like. Wireless
`intercom systems that are deployed in quick service
`restaurants are designed to enhance voice
`communications and intelligibility, while at the
`same time reducing unwanted noise sources.
` Do you see that?
` A I do, except you left out the word "voice"
`and facilitate -- in the phrase facilitate voice
`orders when you read my declaration.
` Q Indeed. It says typically facilitate
`voice orders. If I left that word out I apologize.
`
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`APP3229
`
`
`
`Page 28
`
` Who drafted this paragraph?
` A I did.
` MR. BIANCHI: Objection. Form.
` Q (BY MR. STEINERT) What was your basis for
`the opinions expressed in this paragraph?
` A Material that I had read, confirmed by
`personal experience.
` Q When you say material you read, you mean
`the '040 patent and the cited prior art?
` A Yes.
` Q Was there anything else that you relied on
`in expressing these opinions?
` A I just said that I also relied on personal
`experience.
` Q Is that personal experience as a customer
`at quick service restaurants?
` A Yes.
` Q Any other personal experience?
` A No.
` Q The statement that quick service
`restaurants are relatively high noise environments,
`what's your basis for that opinion?
` A Attending quick service restaurants, and
`also attempting to communicate with them from the
`outside, when I foolishly drove my truck instead of
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`APP3230
`
`
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`Page 29
`my nice, quiet little Prius to the establishment.
` Q Your statement that the communication
`between the customer and restaurant staff is likely
`to encounter background noise from automobiles, the
`surrounding environment, other employees and patrons
`of the restaurant, those statements, what was the
`basis for those?
` MR. BIANCHI: Objection. Form.
` A Personal observation.
` Q (BY MR. STEINERT) As a customer at a
`quick service restaurant?
` A Yes. And my also -- my local Walgreens as
`well. Similar problem, similar environment.
` Q It's a Walgreens with a drive-through
`pharmacy?
` A That's right.
` Q You also say that the communication
`between the customer and restaurant staff is likely
`to encounter background noise from restaurant
`equipment.
` Do you see that?
` A Yes.
` Q What was the basis for that opinion?
` A Personal observation.
` Q As a customer?
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`APP3231
`
`
`
`Page 30
`
` A Yes.
` Q You say, wireless intercom systems that
`are deployed in quick service restaurants are
`designed to enhance voice communications and
`intelligibility, while at the same time reducing
`unwanted noise sources.
` Do you see that?
` A Yes, I do.
` Q What was the basis for that opinion?
` A That was more than likely the sales or
`configuration literature for prior art products in
`this field.
` Q You think that was based on something you
`read in the prior art?
` A Yes.
` Q Do you recall what?
` A No.
` Q There's no citation for that sentence, is
`there?
` A That's correct.
` Q Moving on to paragraph 17 of the Gosieski
`declaration, you state, the use and design of quick
`service restaurant intercoms is distinguishable from
`other types of communication devices, such as
`professional in-ear monitor systems and
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`APP3232
`
`
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`Page 31
`walkie-talkie radios. Professional in-ear monitor
`systems are commonly used by musicians, performers,
`and audio engineers for the recording or production
`of live performances. Professional audio
`applications may involve the real time mixing of
`multiple time-synchronized audio sources, to produce
`a mixed output and to provide sound to the in-ear
`monitor for the performer. They are designed to
`allow the performer to hear the performance.
` Do you see that?
` A I do.
` Q What was your basis for those opinions?
` A The combination of the description of
`prior art in-ear systems in the Gosieski patent, as
`well as the -- my personal observation and --
`personal observation of a Broadway production and a
`tour of the back of the house by the -- a neighbor
`of mine, where she worked in -- on Broadway in
`New York.
` Q So you personally toured
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