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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------
` DISH NETWORK LLC
` v.
` DRAGON INTELLECTUAL PROPERTY LLC
` -----------
` Case IPR2015-00499
` Patent No. 5,930,444
`
` Oral Deposition of
` ANTHONY J. WECHSELBERGER
` Houston, Texas
` Thursday, October 8, 2015
` 9:29 a.m.
`
`Job No.: 98839
`
`Reporter: MICHAEL E. MILLER, FAPR, RDR, CRR
` Notary Public
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`Dragon Intellectual Property, LLC - Ex. 2004 - Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------
` DISH NETWORK LLC
` v.
` DRAGON INTELLECTUAL PROPERTY LLC
` -----------
` Case IPR2015-00499
` Patent No. 5,930,444
`
` Oral Deposition of
` ANTHONY J. WECHSELBERGER
` Houston, Texas
` Thursday, October 8, 2015
` 9:29 a.m.
`
`Job No.: 98839
`
`Reporter: MICHAEL E. MILLER, FAPR, RDR, CRR
` Notary Public
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`Dragon Intellectual Property, LLC - Ex. 2004 - Page 1
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`
` Oral Deposition of ANTHONY J. WECHSELBERGER,
`held at:
`
`Page 2
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` Baker Botts LLP
` 910 Louisiana Street
` Houston, Texas
`
` Pursuant to Notice, before Michael E.
`Miller, Fellow of the Academy of Professional
`Reporters, Registered Diplomate Reporter,
`Certified Realtime Reporter, and Notary Public in
`and for the State of Texas.
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`Page 3
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` A P P E A R A N C E S
`
`ON BEHALF OF PETITIONER:
`
` BAKER BOTTS
` BY: BRADLEY BOWLING, ESQUIRE
` One Shell Plaza
` 910 Louisiana Street
` Houston, Texas 77002
`
` ON BEHALF OF PATENT OWNER:
` FREITAS ANGELL & WEINBERG
` BY: JASON ANGELL, ESQUIRE
` 350 Marine Parkway
` Redwood Shores, California 94065
`
` ALSO PRESENT:
` ALI DHANANI
` DANIEL RAHIM
` THOMAS CARTER
`
` --o0o--
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` A. WECHSELBERGER
` PROCEEDINGS
` (October 8, 2015 at 9:29 a.m.)
` ANTHONY J. WECHSELBERGER,
` having been duly sworn,
` testified as follows:
` EXAMINATION
`BY MR. ANGELL:
` Q. Good morning, Mr. Wechselberger.
` A. Good morning.
` Q. Am I pronouncing your name right?
` A. As if it were W-E-X, Wechselberger,
`yes.
` Q. Wechselberger.
` A. Perfect.
` Q. All right. Mr. Wechselberger, how
`many times have you had your deposition taken?
` A. Must be approaching three dozen by
`now, two or three dozen.
` Q. So you're familiar with the rules, I
`assume, for a deposition?
` A. Yes.
` Q. Just basically, just try not to talk
`over each other so that the court reporter can
`get the testimony down, and if you want to take a
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` A. WECHSELBERGER
`break at any time, let me know, and we can do
`that as long as a question is not pending.
` If I use the term "'444 patent" in
`the deposition, will you understand me to be
`referring to the patent that's at issue in this
`case?
` A. Yes.
` Q. And that's the patent that's assigned
`to Dragon, right?
` A. Yes.
` Q. And if I refer to "Dragon," you
`understand that as the patent owner, correct?
` A. Yes.
` Q. Mr. Wechselberger, what did you do to
`prepare for your deposition?
` A. I reviewed the petition, patent
`owner's reply, my expert -- my declaration. I
`reviewed, of course, the '444 patent. I reviewed
`the cited pieces of prior art that's in my
`declaration.
` This is the second time the
`declaration has been scheduled. The first time
`it got canceled, but when I was studying for the
`first date, I also went back and looked at a
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` A. WECHSELBERGER
`couple of the documents from the Unified Patents
`case, just to be cognizant. I was aware of that,
`I had the documents, so I looked at that. That's
`been several weeks now.
` And then I had a meeting here
`yesterday with Mr. Bowling.
` Q. Was anybody else at the meeting with
`Mr. Bowling?
` A. No.
` Q. How long did the meeting take place?
` A. About 9:30 to 4:30.
` Q. Did you meet with any of Dish's
`lawyers prior to the deposition as it was
`originally scheduled?
` A. Never met them, never talked to them.
` Q. You mentioned that you reviewed the
`prior art that's cited in your declaration,
`right?
` A. Yes.
` Q. And did you review all of the items
`of prior art or only the ones that remain at
`issue in the case?
` A. Just the four that remain at issue,
`four or five.
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` Q. And those would be -- do you remember
`the names of those patents off the top of your
`head?
` A. Goldwasser, Truog, which is the
`patent -- well, Truog thesis, Yifrach, Ulmer
`and -- is it Vogel? So those.
` Q. Sounds right.
` You also mentioned that you reviewed
`the Unified Patents IPR materials, right?
` A. Yes.
` Q. What materials from the Unified
`Patents case did you review?
` A. Whatever was publicly available on
`the PTO site, the petition and I believe patent
`owner's reply, yes. And the prior art in that
`case overlaps mine, so I didn't need to do
`anything extra for that.
` Q. Which prior art do you recall
`overlapping?
` A. Goldwasser -- it's been so long
`now -- and Ulmer are the ones I remember.
` Q. I don't recall that you mentioned
`reviewing the institution decision in this case
`when you were preparing for the deposition. Is
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` A. WECHSELBERGER
`that one of the items you reviewed as well?
` A. Sure, just forgot that one.
` Q. Okay. I might have missed it too.
` A. And for completeness, now that you
`remind me, I would have reviewed the decision in
`the Unified Patents case as well.
` Q. Did any of the materials that you
`reviewed in connection with your preparation for
`today's deposition cause you to change any of the
`opinions that are set forth in your expert
`declaration?
` A. No.
` Q. You mentioned that you've been
`deposed about three dozen times, right?
` A. Maybe at the high end, two or three
`dozen, yes.
` Q. More or less, I won't hold you to it.
` A. Okay.
` Q. How many of those cases were patent
`cases?
` A. Probably two-thirds to three-quarters
`of them.
` Q. What were the cases that were not
`patent cases?
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` A. WECHSELBERGER
` A. I've been involved in a couple of
`shareholder class action litigations. I've been
`involved in one -- actually, three cases that
`have misappropriation of either intellectual
`property or proprietary company technology --
`actually, move to that six cases, approximately
`six.
` Q. And did you serve as a technical
`expert in all of the cases in which you were
`deposed?
` A. That's correct.
` Q. For the patent cases that you worked
`on, just in general, have you typically worked
`for either -- strike that.
` For the patent cases that you moved
`on, do you typically work for the patentholder,
`or do you typically work for someone who's
`attacking the patent?
` MR. BOWLING: Objection, form.
` A. I don't understand the term
`"attacking" a patent. I work for a plaintiff or
`defendant.
`BY MR. ANGELL:
` Q. Sure. What I mean is has your work
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` A. WECHSELBERGER
`generally been on behalf of a patentholder or
`someone else?
` A. I've done both, but I think the bulk
`of the -- I'm sure the bulk of it is on behalf of
`the defendant, that is the one who's trying to
`show noninfringement and/or invalidity.
` Q. And about how many cases have you
`worked on where you were working on behalf of the
`defendant or someone who is accused of
`infringement?
` A. Probably 30.
` Q. And approximately how many cases have
`you worked on where you were working on behalf of
`the patentholder?
` A. I would guess less than ten.
` Q. In your work for patentholders, were
`you doing work as an infringement expert or a
`validity expert or something else?
` A. Infringement expert. And in one
`case, I think I also argued validity.
` Q. Is this the first case that you've
`done for Dish?
` A. No.
` Q. How many other cases have you done
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`for Dish?
` A. Three, maybe four, I believe.
` Q. Do you remember who the other parties
`were in those other cases for Dish?
` A. One was a case PMC v. Dish,
`Personalized Media Corp. You know, I don't
`remember. I don't remember the other -- the
`other parties.
` Q. What was the last case that you
`worked on for Dish prior to this case?
` A. I think it was PMC v. Dish.
` Q. And do you remember approximately
`when that was?
` A. Yeah, I think we were headed for
`trial earlier this year and then settled, so it
`would have been active in the last couple of
`years.
` Q. And you served an expert report in
`that case; is that right?
` A. Yes.
` Q. Do you recall generally what the
`technology was that was at issue in that case?
` A. Security and command and control in
`broadband distribution networks, broadband
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` A. WECHSELBERGER
`content distribution networks.
` Q. What was your assignment in that
`case?
` A. Invalidity expert.
` Q. And what conclusion did you reach
`about the validity of the patent in that case?
` A. My expert report and all the contents
`therein I'm told is confidential, so I don't
`think I'm supposed to be talking about it, and so
`I won't. It's confidential.
` Q. A validity conclusion is
`confidential?
` A. Erring on the side of caution, I
`am -- and without the ability to go back and
`check what the expert report has on it, I'm
`really uncomfortable about providing an answer.
` Q. In any of your work for Dish, have
`you ever -- strike that.
` In any patent that you've examined on
`behalf of Dish, have you ever failed to reach the
`conclusion that the patent was invalid?
` A. I think most of the cases that I've
`been involved in didn't go the distance and
`didn't have me finishing an expert report, so I
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` A. WECHSELBERGER
`wouldn't have come to a conclusion in the cases
`that didn't go the distance.
` Q. So you mentioned three, maybe four
`cases for Dish. In the PMC v. Dish case, you're
`not going to tell me whether you reached a
`conclusion as to whether the patent was valid or
`invalid for confidentiality reasons, right?
` A. I guess as long as we don't go into
`the details of it, I can say that my expert
`report concluded that the asserted claims were
`not valid.
` Q. And have you ever served an expert
`report on behalf of Dish in any of the other
`cases that you worked on for Dish?
` A. I think I believe the answer to that
`is no.
` Q. Were you deposed in the PMC case?
` A. I was.
` Q. Were any motions to exclude your
`testimony made in the PMC case?
` A. Not that I'm aware of.
` Q. Who was the opposing expert in the
`PMC case? And by "opposing expert," I mean your
`counterpart, someone who would have been offering
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` A. WECHSELBERGER
`an opinion on validity.
` A. The name Russ is coming to mind, but
`I was also representing DirecTV against the same
`plaintiff, so I'm not sure if I'm remembering the
`DirecTV expert or Dish's expert.
` Q. Do you know where that case was
`venued?
` A. Eastern District of Texas.
` Q. Who first contacted you from Dish to
`work on this case?
` A. Nobody from Dish contacted me.
` Q. How did you come to be working on the
`case?
` A. I think my name was referred to
`Mr. Bowling's law firm based upon my previous
`work with the firm, and then I got a cold call.
` Q. You said your previous work with "the
`firm." Do you mean the Baker Botts law firm, or
`do you mean Dish?
` A. Baker Botts.
` Q. Who would have referred your name to
`Baker Botts?
` A. No, I said Baker Botts internal
`people referred my name to the folks working on
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` A. WECHSELBERGER
`the Dragon case, and who that was, I don't know.
` Q. Who was the first person at Baker
`Botts that you spoke with about this case?
` A. I don't remember.
` Q. Who at Baker Botts have you spoken to
`about this case?
` A. Just Mr. Bowling, as far as I can
`remember.
` Q. Do you recall when you first spoke
`with Mr. Bowling?
` A. It would have been November -- it was
`either November or December of last year.
` Q. Mr. Wechselberger, I'll hand you a
`copy of Dish Exhibit 1010.
` A. Okay. I brought a copy.
` Q. Looks like you already had a copy.
` A. We'll just move it out of the way.
` Q. Mr. Wechselberger, do you recognize
`Exhibit 1010 as the expert report you served in
`this case?
` A. Yes, I do. It's my declaration.
` Q. If you turn to the page that's marked
`132, and that's Dish exhibit page number 132.
`That's your signature page, I believe.
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` A. WECHSELBERGER
` A. Yes.
` Q. At paragraph 190, you recite that you
`were retained by Dish to work on this case.
`Towards the end of the last sentence, you say
`your compensation in no way is contingent on the
`result of these or any other proceedings related
`to the above-captioned patent.
` Did you write that,
`Mr. Wechselberger?
` A. I don't remember if -- I usually make
`it a point in my expert reports and or
`declarations to make sure there's a statement to
`that effect. If I don't find one, then I put it
`in. I don't remember whether that happened in
`this case.
` Q. You mentioned the results of these or
`any other proceedings relating to the
`above-captioned patent. Are you working on any
`other proceedings related to the above-captioned
`patent?
` A. Not currently.
` Q. Do you expect to?
` A. I'm just aware there's a district
`court proceeding. I have no expectations either
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`way.
` Q. Have you spoken with anyone about the
`district court proceedings?
` A. I have not.
` Q. You mentioned that you were contacted
`in -- did you say December -- or excuse me,
`strike that. I'll ask a better question.
` I believe you said you spoke to
`Mr. Bowling first in December of last year; is
`that correct?
` A. I said November or December.
` Q. November or December, okay.
` Do you remember about how many weeks
`before the submission of your report you first
`spoke with Mr. Bowling?
` A. Well, if it was November, it might
`have been mid November. Since this report is
`dated December 23rd, that would have been five or
`six weeks max, obviously less if my first contact
`was in December itself.
` Q. And did you write all of the content
`of this report, which is Exhibit 1010,
`Mr. Wechselberger?
` A. I did not. This report, like all my
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` A. WECHSELBERGER
`reports, are collaborative efforts. I did not
`write every sentence of every page, in general
`form an outline. When I approach declaration- or
`report-writing, I ask the firm I'm working with
`to provide that, and each firm has their kind of
`own preferences and techniques they like to use
`in the outline. Typically I will do the
`background of the technology and certainly my own
`background.
` But the answer to your question is
`no, I did not write every word that's in this
`entire report. It was a collaborative effort.
`In the end since my name is on it, I have to own
`every page and every sentence that's in here, and
`that's really the key thing and the important
`thing.
` Q. And you do own every page and every
`sentence in the report; is that right?
` A. That's right.
` Q. Do you recall whether you prepared
`the first complete draft of the report?
` A. No, that would -- that again would
`have been a collaborative effort.
` Q. With whom did you collaborate on
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`drafting the report?
` A. In this case, exclusively
`Mr. Bowling.
` Q. Do you have any assistants that you
`work with?
` A. I do not.
` Q. About how many drafts were exchanged
`between you and Mr. Bowling of your report,
`Mr. Wechselberger?
` A. I don't remember. I would say drafts
`are evolved rather than exchanged through a
`series of redlines and accept-alls.
` Q. About how many hours did you spend
`preparing the report?
` A. I do recall it came together fairly
`quickly, and I'm pretty sure I recall correctly
`that it happened in the month of December, so it
`would have been limited to perhaps 40 to
`60 hours. I don't remember.
` Q. If you could turn to the first page
`of your report, this is on exhibit page 4. The
`section under Roman I, "Background and
`Qualifications," I believe you testified that
`this is the kind of thing that you would have
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` A. WECHSELBERGER
`written, right?
` A. Yes.
` Q. If you turn to Section II on exhibit
`page 10, there's a section titled "Legal
`Understanding." Do you see that?
` A. Yes.
` Q. Is this a section that you prepared?
` A. No, this would be an example of a
`section which I would depend upon the firm I'm
`working with to put in the report.
` Q. And do you fully and completely
`understand all of the concepts that are expressed
`in this Section II of your report?
` A. Not to the depth of understanding of
`that a lawyer would, but I've done enough of
`these and studied it often enough to where, to
`perform my duties as an independent expert, I
`believe I understand these concepts.
` Q. And do you believe that you apply
`these concepts in your work?
` A. Yes.
` Q. Section III of your report,
`Mr. Wechselberger, begins on page 15 of the
`exhibit.
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` A. WECHSELBERGER
` A. Okay.
` Q. Who prepared this section of your
`report?
` A. I would say that this was about 50/50
`me and Mr. Bowling.
` Q. Describe the process of how this
`section came into existence.
` A. Well, as I said a moment ago, I
`request an outline of what the firm would like to
`see in terms of the order and sort of structural
`makeup of a report and the general themes
`therein, and to the extent that I can take the
`lead in drafting, I do. To the extent that I may
`ask for some help to put down some boilerplate
`stuff that I can go there and fresh out -- as I
`said, in this case I think it was about 50/50.
`There were areas that I saw a little bit of words
`that I said I can elaborate on that and take it
`off in this direction and finish it off, so...
` Q. Did Mr. Bowling prepare the first
`draft of this section and then you edited it?
` A. I think it would be fair to say he
`prepared the first drafts of some parts of this
`section, but I see my imprint on other parts, and
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` A. WECHSELBERGER
`actually as I look at it, I recall starting from
`scratch on some of these sections.
` Q. Which are the sections that you're
`referring to that you drafted from scratch?
` A. I think the first several pages.
`Certainly the section on digital video and video
`compression in '92, because I was a part of some
`of that original work at the International
`Standards Organization.
` Q. Which paragraph numbers?
` A. I was looking at paragraph 33.
` Some of the stuff about specific
`citations of art, I would guess that Mr. Bowling
`drafted the first parts of those.
` Q. When you're referring to the sections
`that describe the prior art, are you referring to
`paragraphs 35 through 39?
` A. Yes.
` Q. So you did not prepare these
`descriptions of the prior art, then; is that your
`testimony, Mr. Wechselberger?
` MR. BOWLING: Objection, form.
` A. No, you have been asking me about who
`prepared first drafts, so by the time we came
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` A. WECHSELBERGER
`through, I would have read these, changed them,
`elaborated on them and so forth, so that's how I
`made the report mine.
`BY MR. ANGELL:
` Q. Okay. Then let's clarify that.
` Did you prepare the first draft of
`the descriptions of the prior art that appear in
`paragraphs 35 through 39?
` A. As I testified, to the best of my
`recollection, Mr. Bowling prepared the first
`drafts of those sections.
` Q. Do you recall editing them at all?
` A. I would have edited all of the
`paragraphs in this report by the time it was
`produced.
` Q. Do you remember whether the edits
`that you made to paragraphs 35 through 39 were
`made to correct technical mistakes or for other
`reasons?
` A. I have no recollection.
` Q. Do you believe that paragraphs 35
`through 39 accurately describe the prior art that
`they purport to describe?
` A. Yes.
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` A. WECHSELBERGER
` Q. Can you turn, please, to page 26 of
`Exhibit 1010? There's a section there headed
`"The Patent At Issue." Do you see that?
` A. Yes.
` Q. Paragraph 43 describes the '444
`patent, correct?
` A. Yes.
` Q. In connection with your work on this
`case, did you review the file history for
`the '444 patent?
` A. I certainly did.
` Q. When did you review the file history?
` A. It would have been December of last
`year.
` Q. And I'm asking because I don't see
`anywhere in your report mention of the file
`history. That's a comment, not a question.
` But you did review the file history
`before you submitted your report, correct?
` A. Yes.
` Q. In Section B on the following page,
`page 27 of Exhibit 1010, there's a section headed
`"Prior Art Considered." Do you see that?
` A. Yes.
`
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` A. WECHSELBERGER
` Q. And in paragraph 44, you identify a
`number of prior art references that you reviewed
`in connection with the preparation of your
`report, correct?
` MR. BOWLING: Objection, form.
` THE WITNESS: Ask the question again,
`please.
`BY MR. ANGELL:
` Q. In paragraph 44, you identify a
`number of prior art references, correct?
` A. Yes.
` Q. And did you review all of these
`references in the course of preparing your
`report?
` A. Yes.
` Q. Your opinion regarding the validity
`of the Dragon patent -- strike that question.
` How did you go about selecting the
`prior art references to analyze in this case?
` A. I think all the prior art references
`that are listed in section 44 were provided to
`me. Some of them I'd already been aware of, but
`that's just a coincidence; Goldwasser, for
`example, I remember from other work. There may
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` A. WECHSELBERGER
`have been others I don't recall. I was not asked
`nor did I perform prior art research before
`preparing the report.
` Q. You were asked only to review the
`prior art that was provided to you by
`Mr. Bowling, correct?
` A. I was not told not to provide other
`prior art, but when I became familiar with the
`art that was provided, it seemed to me it was
`sufficient to validate the '444 patent, so I just
`left it at that.
` Q. You mentioned that you were familiar
`with Goldwasser from prior work, right?
` A. That's one I immediately remembered,
`yes.
` Q. What was the prior art work when you
`encountered Goldwasser?
` A. I've worked on a couple of other
`cases that had to do with the storage and recall
`of audio and/or video information, similar to
`the '444 patent, and it would have been those
`cases where -- one or more of those cases where
`I'd run across Goldwasser.
` Q. What were those cases?
`
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` A. WECHSELBERGER
` A. The ones that I remember was a -- one
`case was a John Ryan patent, had to do with a
`technology of being able to record a radio
`broadcast for later playback. Another case at a
`different time, I was defending against some
`asserted TiVo patents, T-I-V-O.
` Q. Are you finished?
` A. Yes.
` Q. In the John Ryan patent case, who was
`your client?
` A. I think it was Sony and DirecTV.
` Q. And Sony and DirecTV were accused of
`infringement in that case?
` A. That's correct.
` Q. Do you recall who the patentholder
`was in that case?
` A. They have a different name today, but
`in those days they were known as Macrovision. I
`think it was a subgroup of Macrovision.
` Q. In the TiVo matter, who was your
`client?
` A. Verizon, I think. I'm not a hundred
`percent sure, but I think that's true.
` Q. And Verizon was accused of infringing
`
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` A. WECHSELBERGER
`the TiVo patent in that case, correct?
` A. That's my recollection, yes.
` Q. Did you also collaborate on the
`preparation of the petition that Dish filed in
`this case?
` A. I don't recall having contributed to
`that.
` Q. You didn't review any drafts that you
`recall; is that right?
` A. I might have reviewed drafts, I
`didn't participate in putting together those
`drafts. I would have been interested in making
`sure that there was alignment between what was in
`that and my report, but to that extent, that's
`all.
` Q. Did you help to formulate the
`specific bases of invalidity that are asserted
`against the Dragon patent?
` A. To the extent that it's in my report,
`yes.
` Q. Did you come up with the specific
`combinations of prior art that are asserted as
`invalidating the Dragon patent?
` A. The best I can remember, that was a
`
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` A. WECHSELBERGER
`collaborative effort.
` Q. So the references to combine would
`have been something that you worked on with
`Mr. Bowling; is that right?
` A. Yes.
` Q. Section V of your report, which again
`is at page 28 of Exhibit 1010, is titled
`"Construction of Claims," correct?
` A. Yes.
` Q. And in this section, after
`articulating the level of skill in the art, you
`discuss claim construction for some of the claim
`terms in the Dragon patent, right?
` A. Yes.
` Q. In paragraph 45, you describe a
`difference between the claim construction
`standards in district court and in proceedings
`before the Patent Trial and Appeal Board, right?
` A. That's correct.
` Q. Why did you include that discussion
`in your report?
` A. I've done several IPR-type reports
`and CBMs as well, and my experience, collective
`experience, has evolved to -- for me to
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` A. WECHSELBERGER
`understand the fact that there are different
`standards applied; and I think it's important to
`point that out and to make the point that I
`understand that different standards can apply.
`That's the best answer I can give you.
` Q. In paragraphs 50 through 60, you
`discuss various claim terms. I'd like to ask you
`about a few of those.
` In paragraph 57, you discuss claim
`construction for the phrase "memory unit," right?
` A. Yes.
` Q. And your conclusion is recorded in
`the last sentence of paragraph 57; is that
`correct?
` A. Yeah, I was just going to catch up
`with you.
` Q. Sure.
` (Document review.)
` A. Okay. Yes.
`BY MR. ANGELL:
` Q. In that last sentence, you say, "It
`is therefore my opinion that the broadest
`reasonable interpretation of the claimed memory
`unit is a device for storing and/or retrieving
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` A. WECHSELBERGER
`information," right?
` A. Yes.
` Q. And in that sentence, you're offering
`an opinion on the broadest reasonable
`interpretation of "memory unit," right?
` A. Agreed.
` Q. If you'd turn to paragraph 50,
`please.
` A. I'm there.
` Q. Paragraph 50 is your discussion of
`claim construction for "means for powering the
`apparatus," right?
` A. Right.
` Q. In the last sentence of paragraph 50,
`you say, "For purposes of my analysis" -- strike
`that.
` In the second
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