MS 1118
`MS 1118
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`MS 1118
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`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 1 of 229 PageID #: 40748
`Jury Trial, Volume 3
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`660
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`DOCKET 9:09CV111
`
`JUNE 27, 2011
`
`1:00 P.M.
`
`BEAUMONT, TEXAS
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`||||| ||
`
`PERSONAL AUDIO, LLC
`
`VS.
`
`APPLE, INC., ET AL
`
`--------------------------------------------------------
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`VOLUME 3 OF __, PAGES 660 THROUGH 888
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`REPORTER'S TRANSCRIPT OF JURY TRIAL
`
`BEFORE THE HONORABLE RON CLARK
`UNITED STATES DISTRICT JUDGE, AND A JURY
`
`--------------------------------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`RONALD J. SCHUTZ
`JACOB M. HOLDREITH
`CYRUS A. MORTON
`ROBINS KAPLAN MILLER & CIRESI - MN
`800 LASALLE AVENUE
`SUITE 2800
`MINNEAPOLIS, MINNESOTA
`
`55402
`
`ANNIE HUANG
`ROBINS KAPLAN MILLER & CIRESI - NY
`601 LEXINGTON AVENUE
`SUITE 3400
`NEW YORK, NEW YORK
`
`10022
`
`LAWRENCE LOUIS GERMER
`GERMER GERTZ
`550 FANNIN
`SUITE 400
`BEAUMONT, TEXAS
`
`77701
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 1
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`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 2 of 229 PageID #: 40749
`Jury Trial, Volume 3
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`FOR THE DEFENDANTS:
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`661
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`RUFFIN B. CORDELL
`FISH & RICHARDSON - WASHINGTON DC
`1425 K STREET NW
`SUITE 1100
`WASHINGTON, DC
`
`20005
`
`GARLAND T. STEPHENS
`BENJAMIN C. ELACQUA
`FISH & RICHARDSON
`1221 MCKINNEY
`28TH FLOOR
`HOUSTON, TEXAS
`
`77010
`
`KELLY C. HUNSAKER
`FISH & RICHARDSON
`500 ARGUELLO STREET
`SUITE 500
`REDWOOD CITY, CALIFORNIA
`
`94063
`
`JUSTIN BARNES
`FISH & RICHARDSON
`12390 EL CAMINO REAL
`SAN DIEGO, CALIFORNIA
`
`92130
`
`J. THAD HEARTFIELD
`THE HEARTFIELD LAW FIRM
`2195 DOWLEN ROAD
`BEAUMONT, TEXAS
`
`77706
`
`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TEXAS
`77701
`
`PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 2
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`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 3 of 229 PageID #: 40750
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`INDEX
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`662
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`CONTINUED DIRECT EXAM OF KEVIN C. ALMEROTH
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`CONCORDANCE INDEX
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`INDEX OF EXHIBITS
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`Plaintiff's Exhibit 748A
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`Exhibit 748
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`Exhibit 744
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`PX-187
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`Exhibit 748A
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`PX-108
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`112
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`Exhibit 108
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`Plaintiff's Exhibit 108
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`Exhibit 748
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`Exhibit 305
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`Plaintiff's Exhibit 305
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`Plaintiff's Exhibit 304
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`Plaintiff's Exhibit 329
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`Plaintiff's Exhibit 71
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`PX-108, PX-305, PX-304, PX-329, and PX-325
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`PAGE
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`671
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`863
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`675
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`675
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`676
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`677
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`677
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`677
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`678
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`678
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`678
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`679
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`679
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`682
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`682
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`683
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`683
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`684
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`684
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`685
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`687
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`689
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`694
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`694
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`695
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`703
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`703
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`705
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`705
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`715
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`716
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`716
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`722
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`731
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`731
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`735
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`735
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`736
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`737
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`740
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`741
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`741
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`748
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`Plaintiff's Exhibit 325
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`Plaintiff's Exhibit 89
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`Plaintiff's Exhibit 161
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`Plaintiff's Exhibit 625
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`Plaintiff's Exhibit 748A
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 304
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`Plaintiff's Exhibit 325
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`Plaintiff's Exhibit 325
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`Plaintiff's Exhibit 325
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 759
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 759
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`Plaintiff's Exhibit 759
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`Plaintiff's Exhibit 760
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 760
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`Plaintiff's Exhibit 325
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 4
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`748
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`751
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`751
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`754
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`759
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`760
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`760
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`762
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`762
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`769
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`773
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`773
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`774
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`777
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`782
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`789
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`808
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`813
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`813
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`816
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`816
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`816
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`817
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`821
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`833
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`Plaintiff's Exhibit 304
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`Plaintiff's Exhibit 767
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`Plaintiff's Exhibit 767
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`Plaintiff's Exhibit 1
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`Plaintiff's Exhibit 325
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`Plaintiff's Exhibit 89
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`Plaintiff's Exhibit 89
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 108
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`Plaintiff's Exhibit 108
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`Exhibit 771
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`771A
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`Plaintiff's Exhibit 771A
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`Exhibit 771A
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Plaintiff's Exhibit 713
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`Exhibit 187
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`Plaintiff's Exhibit 748A
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 5
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`Plaintiff's Exhibit 748A
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`Plaintiff's Exhibit 748A
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`Plaintiff's Exhibit 748A
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`Plaintiff's Exhibit 748A
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`771
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`Plaintiff's Exhibit 748A
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`Plaintiff's Exhibit 771
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`665
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`835
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`835
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`836
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`836
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`837
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`837
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`838
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 6
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`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 7 of 229 PageID #: 40754
`Jury Trial, Volume 3
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`(REPORTER'S NOTES PERSONAL AUDIO V. APPLE,
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`666
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`JURY TRIAL, VOLUME 3, 1:00 P.M., MONDAY, JUNE 27, 2011,
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`BEAUMONT, TEXAS, HON. RON CLARK PRESIDING.)
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`(OPEN COURT, ALL PARTIES PRESENT, JURY NOT
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`PRESENT.)
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`THE COURT:
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`Let's go ahead, then, and -- I
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`hope everybody had a good weekend.
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`MR. HOLDREITH:
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`Judge, can I just mention
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`there are a couple demonstratives in my set that
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`Mr. Stephens advised me he still has an objection to?
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`I
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`don't know if the court's rulings on Friday cover those
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`or not.
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`I won't get to those until later this afternoon;
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`so, they will not come up in the first hour of testimony.
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`THE COURT:
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`Okay.
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`You're talking about
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`Demonstratives 1059 and 1060?
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`MR. HOLDREITH:
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`Yes, sir.
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`THE COURT:
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`And I guess 1062?
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`MR. STEPHENS:
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`That's correct, your Honor.
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`1059, 1060, 1062 --
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`THE COURT:
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`And the concern with 1059 is?
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`MR. STEPHENS:
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`They improperly characterize
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`claim limitations by using an abbreviated word or two to
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`represent an entire limitation.
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`If they wanted to say,
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`you know, "limitation 1B" or something like that, we
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`don't have a problem with the rest of it.
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`It's just if
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 7
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`you say, for example, infrared is a shorthand for the
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`structure that corresponds to the means for language,
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`that's going to be misleading.
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`THE COURT:
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`Might possibly make it easier for
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`the jury to understand if you had the 1B.
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`I'm going to
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`overrule as far as the shorthand because this is a
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`demonstrative.
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`But Mr. Stephens is correct it might be a
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`little easier if you put the claim number or sub-number
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`next to the shorthand so people would know, yeah, that's
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`the 1B thing.
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`We've got a shorthand here for them.
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`MR. HOLDREITH:
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`That's an excellent
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`suggestion, your Honor.
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`I'll try to write that in.
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`THE COURT:
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`I will sustain in that it would be
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`more clear than it was.
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`Since it's a chart like this and
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`a demonstrative, I'm not going to require them to try to
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`put the entire claim term there.
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`Okay.
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`What about -- is that the same for 1060
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`then?
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`MR. STEPHENS:
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`Yeah.
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`It was the same
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`objection for all of those, your Honor.
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`THE COURT:
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`All right.
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`Well, the ruling will
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`be the same on all of them.
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`MR. STEPHENS:
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`There were a couple of other
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`issues.
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`I don't know if your Honor was --
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`THE COURT:
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`Okay.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 8
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`MR. STEPHENS:
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`So, there are some exhibits
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`668
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`that refer to iTunes and the iTunes Web site --
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`THE COURT:
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`Okay.
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`MR. STEPHENS:
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`-- they attempt to use, and we
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`think it's inappropriate for Dr. Almeroth to testify
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`about iTunes and iTunes Web site while he's talking about
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`infringement.
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`THE COURT:
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`All right.
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`And as stated on my
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`ruling on the motion in limine, it will stand on that.
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`MR. STEPHENS:
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`Okay.
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`THE COURT:
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`Same basis.
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`Go ahead and bring in the jury.
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`(The jury enters the courtroom, 1:00 p.m.)
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`THE COURT:
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`Good afternoon, ladies and
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`gentlemen.
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`Welcome back.
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`Last night, about 7:00, we
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`were over at a friend's house, my wife and I; and she
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`suddenly collapsed, passed out.
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`We thought at first it
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`might be a heart attack or stroke.
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`We took her down to
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`the emergency room.
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`They did a bunch of tests.
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`They now
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`think it was probably some kind of atypical migraine
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`attack.
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`She's had migraines in the past but never
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`anything like this.
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`All of the tests came back not being
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`heart attack or stroke.
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`I apologize for the delay.
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`I
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`was used to hurricanes causing delays, which is why we
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`wanted your phone number.
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`Hopefully you all got your
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 9
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`calls so you didn't have to come down here this morning.
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`Also, fortunately we had enough time built
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`into the schedule that if we keep moving right along, I
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`still think the evidence will be wrapped up -- it will be
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`a little later in the day but on the same as we talked
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`about before.
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`Let me mention two things.
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`We're going into
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`this infringement analysis.
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`Remember that in the end
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`you're going to be looking at the claims that you're
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`given -- and I'll give those to you in the
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`instructions -- and you will compare those against the
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`accused products, in this case these various versions of
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`the iPod.
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`Now, you're going to hear evidence about other
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`things, for example, iTunes and some of the other things
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`will be talked about because they're related to it; but
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`those aren't related products.
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`So, that's not part of
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`the infringement.
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`And you're also going to see some charts
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`showing some shorthand in the chart of what the claim is,
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`for example, like claim 1B -- or 1B of a claim.
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`Keep in
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`mind that you won't be looking at the shorthand; you'll
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`be looking at the claim language itself to see whether
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`that's contained in the iPod you're looking at, for
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`example.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 10
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`But on the other hand, if you had to read out
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`all of this language every single time someone mentioned
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`it, this would go on forever.
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`The other thing is you've heard and you'll
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`probably continue to hear that, for example, the people
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`at Personal Audio had a lot of different patents.
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`The
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`people at Apple have a lot of different patents.
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`Whether
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`or not somebody has a patent in the past doesn't make
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`this patent or these two patents or the claims in these
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`two patents good or bad.
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`Apple can have a patented
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`product if other elements are patented and it can still
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`infringe.
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`Mr. Logan can have patents and they were good
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`patents and you could find that these particular patents
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`or a claim -- any one or all of the claims were invalid.
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`So, don't get too carried away about the idea that people
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`have patents in the past or people have patents now.
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`Now, there is going to be some argument about
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`the fact that if something is patented it can't be what's
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`called "equivalent."
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`And they'll get into that later.
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`But don't focus in on, "Oh, gee, they're patented" or "He
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`has patents" or count up "Well, this expert has 32
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`patents and that expert only has 28 patents."
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`That's not
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`how this goes.
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`You're looking at the claim language.
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`You compare that with the accused products.
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`And when
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`they get to what's called "invalidity," when Apple is
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 11
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`saying the patent is not valid, you're going to be
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`looking at the claim language and you're going to see if
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`it was not new or if it was obvious or if it didn't meet
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`671
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`a written description.
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`I'll give you some clear instructions on that.
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`I'm just giving you a little warning about don't get
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`caught up in what the lawyers and judges use as shorthand
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`or an easy way, well, let's just count up how many
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`patents there are on each side and they win.
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`That's not
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`how it works.
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`Go ahead, counsel.
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`MR. HOLDREITH:
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`Thank you, your Honor.
`
`CONTINUED DIRECT EXAMINATION OF
`
`KEVIN C. ALMEROTH
`
`BY MR. HOLDREITH:
`
`Q.
`
`Dr. Almeroth, as we left off on Friday and as the
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`judge was just instructing, your job is to analyze the
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`iPods sitting in front of you like the claims that are on
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`this Demonstrative Exhibit 1011.
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`And is that what you
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`did?
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`A.
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`Q.
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`Yes, sir.
`
`Now, Dr. Almeroth, when you looked to see if those
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`iPods had everything listed in this claim, for example,
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`did you notice that they have other things as well that
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`aren't on this list?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1118 - Page 12
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`672
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`A.
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`Q.
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`A.
`
`Yes, sir, I did.
`
`For example?
`
`The iPods have some additional functions, a clock
`
`and a calendar, notes that you can take and contacts you
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`can have.
`
`There are even some games on some of the
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`iPods.
`
`So, there are other things on the iPod that
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`aren't related to this claim.
`
`Q.
`
`And how does it factor into your analysis of
`
`infringement that iPods have some other things that are
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`1 2 3 4 5 6 7 8 9
`
`10
`
`not in this claim?
`
`11
`
`A.
`
`It doesn't factor into my analysis.
`
`My job was to
`
`12
`
`13
`
`14
`
`find these limitations in the iPod.
`
`If there was other
`
`things, that doesn't make a difference with respect to
`
`matching up these claims and these limitations with
`
`15
`
`what's in the device.
`
`16
`
`Q.
`
`So, Dr. Almeroth, if one iPod could store ten
`
`17
`
`18
`
`songs or a hundred songs or a thousand songs, does that
`
`make a difference to your infringement analysis?
`
`19
`
`A.
`
`No.
`
`20
`
`Q.
`
`Why is that?
`
`21
`
`A.
`
`Because a requirement to store a certain number of
`
`22
`
`songs is not listed up there on the board and is not part
`
`23
`
`of the judge's construction.
`
`That's not a test for
`
`24
`
`whether or not this device infringes or not.
`
`25
`
`What color the device is, what size it is,
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 13
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 14 of 229 PageID #: 40761
`Jury Trial, Volume 3
`
`those are not things with respect to claim 1 that have to
`
`be evaluated and have to be present to infringe this
`
`claim.
`
`It really is just those specific things on the
`
`673
`
`board.
`
`Q.
`
`A.
`
`And does it have to be able to store some songs?
`
`Yes.
`
`There will be limitations.
`
`We've talked
`
`about that in the context of the patent.
`
`But there are
`
`the things on the board -- it does have to store songs,
`
`yes.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`So, is it the number of songs that's not required?
`
`11
`
`A.
`
`That's correct.
`
`12
`
`Q.
`
`Okay.
`
`And what if an iPod can download songs
`
`13
`
`really, really fast?
`
`How does that factor into your
`
`14
`
`analysis?
`
`15
`
`A.
`
`The fact that it's fast or really fast or
`
`16
`
`17
`
`18
`
`19
`
`superfast or kind of slow, those aspects don't matter
`
`when it comes to determining infringement.
`
`It just has
`
`to be able to -- for some of the claims to be able to
`
`download and transfer those songs onto the device.
`
`20
`
`Q.
`
`And how about -- there was some testimony about
`
`21
`
`this wheel or scroll -- Clickwheel on the iPods.
`
`How
`
`22
`
`does that factor into your analysis?
`
`23
`
`A.
`
`The same way.
`
`There has to be -- for example, on
`
`24
`
`the board with 1C, there has to be a means for accepting
`
`25
`
`control commands.
`
`The court has identified a couple of
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 14
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 15 of 229 PageID #: 40762
`Jury Trial, Volume 3
`
`674
`
`ways that you can do that, but whether it's a Clickwheel
`
`or some other kind of method doesn't matter.
`
`Q.
`
`All right.
`
`There was some testimony during
`
`Mr. Call's examination about bells and whistles.
`
`Were
`
`you present for that?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Does this have anything to do with bells and
`
`whistles?
`
`A.
`
`It's related to bells and whistles.
`
`The patent
`
`describes a number of different inventions, and it
`
`describes some extra features that can be considered as
`
`part of other claims.
`
`But when it comes to this claim,
`
`this claim will be the boundary for defining what
`
`infringement is and it's really about this claim, these
`
`limitations and then these devices.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`Q.
`
`All right.
`
`Dr. Almeroth, I'd like to turn now to
`
`17
`
`how you did your analysis.
`
`And that includes what types
`
`18
`
`19
`
`of information you had available to examine and some of
`
`the things that you studied to try to figure out if the
`
`20
`
`iPods have the limitations in the claim.
`
`All right?
`
`21
`
`A.
`
`Yes.
`
`22
`
`Q.
`
`Let's start by asking:
`
`Did you prepare an index
`
`23
`
`showing some of the technical documents that you looked
`
`24
`
`at?
`
`25
`
`A.
`
`Yes, I did.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 15
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 16 of 229 PageID #: 40763
`Jury Trial, Volume 3
`
`Q.
`
`And just very generally, where did you get these
`
`675
`
`technical documents?
`
`A.
`
`These technical documents were produced by Apple.
`
`As part of this case they have to prove documents that
`
`are relevant; and, so, many of these documents on this
`
`list came from Apple directly.
`
`Q.
`
`All right.
`
`Dr. Almeroth, I'm now showing you
`
`Plaintiff's Exhibit 748A.
`
`What is this?
`
`A.
`
`This is a list of that summary of technical
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`documents.
`
`11
`
`Q.
`
`And who prepared this?
`
`12
`
`A.
`
`I did.
`
`13
`
`Q.
`
`This document has a title.
`
`It's a little hard to
`
`14
`
`read.
`
`Can you explain what the title is?
`
`15
`
`A.
`
`Yes.
`
`There are a number of pages to this
`
`16
`
`document, and on each page there is documents provided
`
`17
`
`for each of the 13 devices.
`
`There are some groupings as
`
`18
`
`we've discussed before.
`
`But all of the documents broken
`
`19
`
`down by the generations are on this and subsequent pages.
`
`20
`
`Q.
`
`So, page 1 is the classic Generation 1; and, for
`
`21
`
`example, page 2 is?
`
`22
`
`A.
`
`Classic Generation 2.
`
`The next one, classic
`
`23
`
`Generation 3, then 4, then 5, et cetera.
`
`24
`
`Q.
`
`Okay.
`
`And within Exhibit 748, do you have a list
`
`25
`
`of technical documents that describe each of the iPods
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 16
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 17 of 229 PageID #: 40764
`Jury Trial, Volume 3
`
`676
`
`that you analyzed?
`
`A.
`
`Q.
`
`Yes, sir.
`
`All right.
`
`Let's walk a little bit through what
`
`some of those documents are.
`
`We'll use the classic 3 as
`
`an example.
`
`And we'll get into some of these documents
`
`in detail as we go.
`
`Right now I'd just like you to
`
`introduce them.
`
`Let me ask you, first of all, about the
`
`physical devices.
`
`Did you also look at all the physical
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`devices?
`
`11
`
`A.
`
`Yes, sir.
`
`Those are up here on the railing, and
`
`12
`
`then I can also demonstrate some of them later.
`
`13
`
`Q.
`
`And I'm showing you now Exhibit 744.
`
`Is this an
`
`14
`
`index you prepared of the iPods that you examined by
`
`15
`
`number?
`
`16
`
`A.
`
`Yes, sir, it is.
`
`17
`
`Q.
`
`And there are some numbers along the column there,
`
`18
`
`like PX-50 and PX-186.
`
`Can you explain what that is?
`
`19
`
`A.
`
`Yes.
`
`Those are the exhibit numbers.
`
`And I think
`
`20
`
`there is a typo in there.
`
`The first column should be DX.
`
`21
`
`Those represent these 13 devices, and they all became a
`
`22
`
`defendant's exhibit.
`
`So, you have -- actually, no, I'm
`
`23
`
`sorry.
`
`Right.
`
`So, that's correct.
`
`24
`
`So, for some of these I had access to multiple
`
`25
`
`devices.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 17
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 18 of 229 PageID #: 40765
`Jury Trial, Volume 3
`
`Q.
`
`Okay.
`
`So, for example, do you have one of the
`
`devices that's on this list right there in front of you?
`
`A.
`
`Yes.
`
`For example, the iPod classic third
`
`generation, this is one (indicating); and on the back
`
`677
`
`it's PX-187.
`
`Q.
`
`And, so, does this list help you figure out which
`
`of the iPods you looked at and what trial exhibit number
`
`they are?
`
`A.
`
`Yes, sir.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`All right.
`
`Let's look at the documents now.
`
`And
`
`11
`
`I'm showing you again Exhibit 748A, page 3 for the
`
`12
`
`classic 3.
`
`Does this use exhibit numbers the same way?
`
`13
`
`A.
`
`Yes, it does.
`
`14
`
`Q.
`
`Okay.
`
`And what is listed next to each of the
`
`15
`
`exhibit numbers?
`
`For example, PX-108 says it's the iPod
`
`16
`
`classic third generation user guide.
`
`What are you
`
`17
`
`indicating there?
`
`18
`
`A.
`
`That's the title of the document.
`
`So, the first
`
`19
`
`one on the list, the 108, is the user guide that comes
`
`20
`
`with this classic 3.
`
`21
`
`Q.
`
`And did you have user guides like this for all of
`
`22
`
`the devices that you looked at?
`
`23
`
`A.
`
`Yes, I did.
`
`24
`
`Q.
`
`So, for example, if we look at the previous page
`
`25
`
`of Exhibit 748, page 2, this is for which device?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 18
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 19 of 229 PageID #: 40766
`Jury Trial, Volume 3
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`678
`
`A.
`
`Q.
`
`A.
`
`This is for the classic Generation 2.
`
`And did you list a user guide for this one?
`
`No.
`
`I didn't for this one because it's basically
`
`the same as a classic Generation 1.
`
`Q.
`
`And if we look at the classic Generation 1, the
`
`first page of Exhibit 748, did you list a user guide
`
`here?
`
`A.
`
`Q.
`
`Yes, I did.
`
`And is that the same user guide as for the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`classic 3?
`
`11
`
`A.
`
`It's similar, but there are separate documents
`
`12
`
`because they apply to the different devices.
`
`So, I
`
`13
`
`listed both of them.
`
`14
`
`Q.
`
`Just to make that clear, the user guide for
`
`15
`
`classic 1 is what exhibit number?
`
`16
`
`A.
`
`112.
`
`17
`
`Q.
`
`112.
`
`And if we go to the classic 3, the user
`
`18
`
`guide is what exhibit number?
`
`19
`
`A.
`
`Exhibit 108.
`
`20
`
`Q.
`
`All right.
`
`Let's look at that user guide,
`
`21
`
`Exhibit 108.
`
`I'm now showing you the first page of
`
`22
`
`Plaintiff's Exhibit 108.
`
`Can you explain what this is?
`
`23
`
`A.
`
`This is the user guide -- it's a little hard to
`
`24
`
`show up.
`
`Thank you for blowing it up.
`
`25
`
`It's the user's guide.
`
`It comes with a
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 19
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 20 of 229 PageID #: 40767
`Jury Trial, Volume 3
`
`device.
`
`It comes with a little booklet, and it has a
`
`bunch of pages that relate to teaching a user how to use
`
`679
`
`an iPod.
`
`Q.
`
`Is this information that Apple provides to the
`
`public somehow?
`
`A.
`
`Q.
`
`A.
`
`Yes, it does.
`
`How do they do that?
`
`In the case of this user guide, it was packaged
`
`with the iPod.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`What kind of information is contained in the user
`
`11
`
`guide?
`
`12
`
`A.
`
`It tells you, for example, getting started, what
`
`13
`
`14
`
`you need to connect the communication port on this device
`
`to receive songs and playlists.
`
`It tells you about the
`
`15
`
`buttons.
`
`It tells you about charging the device,
`
`16
`
`17
`
`troubleshooting, all the things that a user has to know
`
`to take advantage of the functions of this device.
`
`18
`
`Q.
`
`All right.
`
`Now turning back to Exhibit 748, the
`
`19
`
`20
`
`index for the classic 3, the next line talks about an
`
`iPod classic 3 online technical specification, which is
`
`21
`
`Exhibit 305.
`
`22
`
`A.
`
`Yes.
`
`23
`
`Q.
`
`I'm going to show you that.
`
`Can you explain what
`
`24
`
`kind of information is contained in a technical
`
`25
`
`specification?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 20
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 21 of 229 PageID #: 40768
`Jury Trial, Volume 3
`
`680
`
`A.
`
`This has specifications, details about some of the
`
`components in the device, from the kinds of storage it
`
`has to the kinds of power that it has; and it's about
`
`three pages long and lists some of the details that --
`
`the more technical aspects of the device.
`
`Q.
`
`A.
`
`Q.
`
`Now, this says "N 3" up here.
`
`What does that mean?
`
`That's the third generation of the iPod classic.
`
`Is this a public document that Apple provides to
`
`the public?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`No.
`
`This is available internal only to Apple.
`
`11
`
`Q.
`
`And is this a confidential document?
`
`12
`
`A.
`
`Yes, it is.
`
`It says so in the lower left corner,
`
`13
`
`"confidential."
`
`14
`
`Q.
`
`That's down here (indicating).
`
`15
`
`A.
`
`Yes.
`
`16
`
`Q.
`
`And we'll get into this in a little bit more
`
`17
`
`detail; but just as a quick tour, you mentioned this
`
`18
`
`describes storage?
`
`19
`
`A.
`
`That's right.
`
`20
`
`Q.
`
`Is that something that will be important to your
`
`21
`
`analysis?
`
`22
`
`A.
`
`Yes, it will.
`
`23
`
`Q.
`
`And what under the "storage" line are the kinds of
`
`24
`
`things we'll be looking at?
`
`25
`
`A.
`
`It talks about the kind of storage, the fact that
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 21
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 22 of 229 PageID #: 40769
`Jury Trial, Volume 3
`
`681
`
`it has RAM.
`
`It talks about the type of persistent mass
`
`storage it has here.
`
`In this case it's a hard disk
`
`drive.
`
`The first line is about the capacity.
`
`It
`
`talks about the size in gigabytes, which roughly
`
`translates to a number of songs that the device can
`
`store.
`
`Q.
`
`And is this indication of connectivity something
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`we'll be talking about?
`
`11
`
`A.
`
`Yes.
`
`It also talks about the kind of
`
`12
`
`13
`
`14
`
`communication port that's on the bottom of this device
`
`and the kind of protocol that you can use to communicate
`
`and receive information.
`
`15
`
`Q.
`
`Did you have technical specifications like this
`
`16
`
`for all 13 of the iPods that you examined?
`
`17
`
`A.
`
`Yes, I did.
`
`18
`
`Q.
`
`Notice this document also has a reference to a
`
`19
`
`headphone port.
`
`Is that something that's also going to
`
`20
`
`be important to your analysis?
`
`21
`
`A.
`
`Yes.
`
`A document like this and others on the list
`
`22
`
`help build a picture for the kinds of things that I need
`
`23
`
`to reach a conclusion about whether it infringes or not.
`
`24
`
`Q.
`
`All right.
`
`Returning now to your index, just
`
`25
`
`under the document we just looked at, the technical
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 22
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 23 of 229 PageID #: 40770
`Jury Trial, Volume 3
`
`specification that's Plaintiff's Exhibit 305, there is a
`
`Plaintiff's Exhibit 304, a product specification?
`
`682
`
`A.
`
`Q.
`
`Yes.
`
`Let's look at that.
`
`It looks very similar.
`
`What
`
`is this?
`
`A.
`
`It does.
`
`It's a product specification.
`
`This one
`
`is a little bit longer.
`
`It's about four pages.
`
`But much
`
`of the information is the same, again more specific
`
`details -- clearly more specific details than what are in
`
`a user guide about kinds of components and what their
`
`capabilities are on the device.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`Q.
`
`This indicates that there are some things in the
`
`13
`
`box.
`
`Is that something you considered?
`
`14
`
`A.
`
`Yes, it is.
`
`15
`
`Q.
`
`And what does that mean?
`
`16
`
`A.
`
`Some of those things that are in the box -- for
`
`17
`
`18
`
`19
`
`example, the earbuds, those are headphones.
`
`And it also
`
`talks about the kind of cables that there are that will
`
`attach to the bottom of this device.
`
`That's all
`
`20
`
`information that's relevant in my opinion.
`
`21
`
`Q.
`
`And did you find that all of the iPods come with
`
`22
`
`earbuds and with a cable for connecting?
`
`23
`
`A.
`
`Yes, sir.
`
`24
`
`Q.
`
`Let's go now back to your index.
`
`The next kind of
`
`25
`
`document on the list is a hardware specification, and
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 23
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 24 of 229 PageID #: 40771
`Jury Trial, Volume 3
`
`there are two lines for the hardware specification.
`
`They're Plaintiff's Exhibit 329 and Plaintiff's
`
`Exhibit 71.
`
`What kind of information is in those?
`
`I'll
`
`683
`
`pull up 329.
`
`A.
`
`Those are documents that provide even more
`
`lower-layer detail about the device.
`
`They go into some
`
`of the specific components that are in the device.
`
`This first one is about the Q14 Buster.
`
`Q14 -- each of the devices has an internal code name for
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`it.
`
`In the case of the classic 3, it's Q14.
`
`They
`
`11
`
`12
`
`13
`
`usually use a letter and then a two-digit number.
`
`So,
`
`each of these 13 devices has one of these code names.
`
`And then this describes then the hardware
`
`14
`
`specification.
`
`If you advance forward a couple of pages,
`
`15
`
`for example, there will be details on the types of
`
`16
`
`components.
`
`Here is a table, for example, summarizing
`
`17
`
`18
`
`19
`
`20
`
`21
`
`some of the hardware components that are in this device.
`
`When you blow it up -- so, for example, the
`
`hard drive is from a company called "Toshiba."
`
`Now we're
`
`starting to look at additional details about the device.
`
`It talks about the battery, and that's from a company
`
`22
`
`called "LG."
`
`Then there's also NEC.
`
`And then there's
`
`23
`
`also -- for example, you get to the level of detail where
`
`24
`
`you have this battery pack insulating tape, and I'm not
`
`25
`
`even going to try and pronounce the company that that's
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 24
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 25 of 229 PageID #: 40772
`Jury Trial, Volume 3
`
`684
`
`from.
`
`But this hardware guide will start to lay out
`
`some of the specific details of the things that are in
`
`this device.
`
`THE COURT:
`
`Counsel, just to remind you, when
`
`you're going through the index, you're saying that it's
`
`plaintiff's exhibit.
`
`When you're talking about what's on
`
`the screen, you're just using a number.
`
`But just for
`
`record purposes, so far everything you've shown up on the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`screen so far this afternoon has been a plaintiff's
`
`11
`
`exhibit?
`
`12
`
`13
`
`14
`
`15
`
`MR. HOLDREITH:
`
`Yes, sir.
`
`THE COURT:
`
`Okay.
`
`If you'll remember -- and
`
`I'll try to remind you -- when you're talking about the
`
`ones that are up, as you show the exhibit, plaintiff's or
`
`16
`
`defendant's exhibits.
`
`We've got hundreds of each.
`
`17
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`18
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`19
`
`MR. HOLDREITH:
`
`I apologize for that; and just
`
`for the record, I'll read them right now.
`
`The ones we've
`
`discussed so far are PX-108, PX-305, PX-304, PX-329, and
`
`20
`
`PX-325.
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`21
`
`BY MR. HOLDREITH:
`
`22
`
`Q.
`
`All right.
`
`Dr. Almeroth, returning to your index,
`
`23
`
`underneath the hardware specification there is
`
`24
`
`Plaintiff's Exhibit 325, a bill of materials report.
`
`25
`
`What is a bill of materials report?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1118 - Page 25
`
`
`
`Case 9:09-cv-00111-RC Document 536 Filed 09/13/11 Page 26 of 229 PageID #: 40773
`Jury Trial, Volume 3
`
`685
`
`A.
`
`The hardware specification guides were one level
`
`of detail, and now we're going even further.
`
`This is
`
`about a 34-page document that lists, in very careful
`
`detail, all of the specific parts that are in there, down
`
`to some of the smallest components in the device.
`
`This kind of document is useful because it
`
`tells you manufacturer, part number, component
`
`information, size, shape, a lot of different details
`
`about everything that's in one of these devices.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`And did you have bills of materials reports for
`
`11
`
`all of the devices you examined?
`
`12
`
`A.
`
`Yes, sir, I did.
`
`13
`
`Q.
`
`Did you study them to find information in them to
`
`14
`
`help inform you as to whether those devices have parts
`
`15
`
`that correspond to the claim?
`
`16
`
`A.
`
`Absolutely.
`
`17
`
`Q.
`
`All right.
`
`Dr. Almeroth, the next type of
`
`18
`
`document in your guide is a chip schematic, Plaintiff's
`
`19
`
`Exhibit 89.
`
`What is a chip schematic?
`
`20
`
`A.
`
`I don't think we're going to go into lower than a
`
`21
`
`chip schematic.
`
`That has all of the specific chips, how
`
`22
`
`they are laid out on the boards, how those things a
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