MS 1119
`MS 1119
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`MS 1119
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 1 of 292 PageID #: 42715
`Jury Trial, Volume 9
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
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`DOCKET 9:09CV111
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`JULY 6, 2011
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`8:57 A.M.
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`BEAUMONT, TEXAS
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`||||| ||
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`PERSONAL AUDIO, LLC
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`VS.
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`APPLE, INC., ET AL
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`--------------------------------------------------------
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`VOLUME 9 OF __, PAGES 2627 THROUGH 2918
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`REPORTER'S TRANSCRIPT OF JURY TRIAL
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`BEFORE THE HONORABLE RON CLARK
`UNITED STATES DISTRICT JUDGE, AND A JURY
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`--------------------------------------------------------
`
`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
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`10022
`
`LAWRENCE LOUIS GERMER
`GERMER GERTZ
`550 FANNIN
`SUITE 400
`BEAUMONT, TEXAS
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`77701
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 1
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 2 of 292 PageID #: 42716
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`FOR THE DEFENDANTS:
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`RUFFIN B. CORDELL
`FISH & RICHARDSON - WASHINGTON DC
`1425 K STREET NW
`SUITE 1100
`WASHINGTON, DC
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`20005
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`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
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`92130
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`J. THAD HEARTFIELD
`THE HEARTFIELD LAW FIRM
`2195 DOWLEN ROAD
`BEAUMONT, TEXAS
`
`77706
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`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TEXAS
`77701
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`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 1119 - Page 2
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 3 of 292 PageID #: 42717
`Jury Trial, Volume 9
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`INDEX
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`DIRECT EXAMINATION OF KEVIN ALMEROTH
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`CROSS-EXAMINATION OF KEVIN ALMEROTH
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`PLAINTIFF RESTS
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`DEFENDANT RESTS AND CLOSES
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`PLAINTIFF RESTS AND CLOSES
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`CONCORDANCE INDEX
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`INDEX OF EXHIBITS
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`Plaintiff's Exhibit 706
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`Plaintiff's Exhibit 706
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`Plaintiff's Exhibit 203
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`Plaintiff's Exhibit 204
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`Plaintiff's Exhibit 200
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`Plaintiff's Exhibit 201
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`Plaintiff's Exhibit 201
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`Plaintiff's Exhibit 200
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`Plaintiff's Exhibit 201
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`Plaintiff's Exhibit 200
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`203 and 204
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`Plaintiff's Exhibit 201
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`Plaintiff's Exhibit 1
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`PAGE
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`MS 1119 - Page 3
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`Plaintiff's Exhibit 1
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`Plaintiff's Exhibit 1
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`Defendant's Exhibit 69
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`Defendant's Exhibit 69
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`Defendant's Exhibit 69
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`Defendant's Exhibit 69
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`Defendant's Exhibit 1
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`Defendant's Exhibit 1
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`Defendant's Exhibit 1
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`Defendant's Exhibit 1
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`Defendant's Exhibit 449
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`Defendant's Exhibit 449
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`Defendant's Exhibit 449
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`Defendant's Exhibit 42
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 4
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 5 of 292 PageID #: 42719
`Jury Trial, Volume 9
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`(REPORTER'S NOTES PERSONAL AUDIO V. APPLE,
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`JURY TRIAL, VOLUME 9, 8:57 A.M., WEDNESDAY, JULY 6, 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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`Is Mr. Elacqua here?
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`MR. CORDELL:
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`He is not, your Honor.
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`THE COURT:
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`Okay.
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`When he was presenting
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`Dr. Wicker, Ms. Mullendore has pointed out that we were
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`going to take up the admission of the slides which
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`technically are not a Rule 1006 summary but which I've
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`already said that in this particular case I was going to
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`let both sides get in with an appropriate instruction to
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`the jury.
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`And, so, the issue I wanted to be sure of is
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`that -- since I don't think it has been done -- exactly
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`which ones that we're talking about so that we can -- I
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`don't think there's much disagreement among counsel, but
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`it is important that we know which ones we have.
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`MR. HOLDREITH:
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`And, your Honor, there are
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`some very specific ones that counsel offered that we
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`think are the ones that go back to the jury room.
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`It's
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`just a handful --
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`THE COURT:
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`I just wanted to identify those
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`because we were going through last night which ones they
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 5
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`were on each side; and we've located, we think,
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`Dr. Almeroth's.
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`We just need to be sure which ones they
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`are.
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`Maybe counsel have already talked about it and
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`you can just give me which ones they are.
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`MR. CORDELL:
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`Your Honor, I have an idea; but
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`if I could --
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`THE COURT:
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`Okay.
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`MR. CORDELL:
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`-- have until the next break to
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`confer with --
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`THE COURT:
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`Oh, sure.
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`No, we have time.
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`We
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`just need to bring it up.
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`I don't want at the end, when
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`the jury is waiting for us, to start having that
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`argument.
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`We've got basically all of today to figure
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`that out.
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`All right.
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`Let's just be sure we don't forget
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`that because, otherwise, tomorrow morning we're suddenly
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`scrambling around.
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`MR. CORDELL:
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`I appreciate that, your Honor.
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`Thank you.
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`THE COURT:
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`Okay.
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`Is the jury out there?
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`Let's bring them on in, please.
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`Fortunately Ms. Mullendore is very thorough,
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`picked up on that and reminded me of that.
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`MR. CORDELL:
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`And me as well, your Honor.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 6
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`Thank you.
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`(The jury enters the courtroom, 9:01 a.m.)
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`THE COURT:
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`Good morning, ladies and
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`gentlemen.
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`Welcome back.
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`We are now continuing on.
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`The
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`defendant has rested its case-in-chief and plaintiff will
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`now be allowed some time for rebuttal.
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`Go ahead, counsel.
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`MR. HOLDREITH:
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`Thank you, your Honor.
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`May I
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`make a transition statement?
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`THE COURT:
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`You may.
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`MR. HOLDREITH:
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`Thank you.
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`Ladies and gentlemen, this is the last part of
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`the case now.
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`And what's going to happen now is
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`Dr. Almeroth will come back; and he will be responding to
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`the opinions that Dr. Wicker offered, in particular about
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`validity.
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`This is what's called "rebuttal," where
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`Dr. Almeroth is allowed to sort of respond to what
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`Dr. Wicker said.
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`We won't get to do everything we would
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`like to.
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`There are some limits on what we can say and
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`where we can respond.
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`Primarily we're going to be talking about
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`validity of the patents, and that was the discussion
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`about the DAD and the Sound Blaster.
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`And what
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`Dr. Almeroth will talk about is why the DAD and the Sound
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`Blaster do not have everything that's in these patent
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 7
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`claims.
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`It's the same analysis as for infringement.
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`You
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`have to find everything that's in the patent claim in the
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`reference in the DAD or in the Sound Blaster to find that
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`these patents are anticipated.
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`And Dr. Almeroth will
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`explain his opinion that that is not the case.
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`We'll also talk about obviousness, which is
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`the idea that, well, if something is missing from the DAD
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`or from the Sound Blaster, would it have been obvious to
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`combine something else with the DAD or the Sound Blaster
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`and put it together and make the invention.
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`And Dr. Almeroth will explain the analysis he
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`did to look for whether there were any reasons that
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`people would have put things together the way that
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`Dr. Wicker suggested.
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`The other question we'll ask and he'll answer
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`is even if you put those things together, you have to
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`have everything that's in the invention when you combine
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`those things.
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`Dr. Almeroth will explain even if you
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`combined the Sound Blaster or the DAD system with some
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`other things like CD players, you still wouldn't have
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`everything that's in those claims.
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`That will be the main
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`part of his testimony.
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`He'll talk about something called "secondary
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`considerations of nonobviousness."
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`That's a legal test
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`where he can look at whether the evidence about how the
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 8
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`market really behaved shows that it would not have been
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`obvious to combine things, in particular because before
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`the patent and even for some time after the patent,
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`nobody was combining things to make a player that is like
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`the one in the claims.
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`So, it wasn't obvious to people
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`working in the industry.
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`Eventually everyone in the industry started
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`doing it and making players with playlists that are
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`navigable, that you could receive from outside the
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`player, and that's called "industry acceptance" and
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`that's another secondary consideration that Dr. Almeroth
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`will explain.
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`That's evidence that this is something
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`people wanted and liked; and if it had been obvious, the
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`industry would have done it sooner because there was a
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`demand for it and a need for it.
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`Finally, we may get to talk a little bit about
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`the infringement case and Dr. Almeroth's disagreements
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`with some of what Dr. Wicker said and we may be able to
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`do some of that but to the extent there are limits on
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`that, that's just the process and I'll hope that you
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`remember what Dr. Almeroth said in his original
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`testimony.
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`So, it's a great privilege to present the
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`technical case to you.
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`This is the last thing I get to
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`do in the case.
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`We really appreciate the careful
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 9
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`attention you-all have obviously been paying.
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`Thank you
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`for that.
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`And with that, we'll try to make it as focused
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`and as concise as possible to get you through this last
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`2636
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`part of the case.
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`Thank you.
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`THE COURT:
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`You remember, of course, you're
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`still under oath.
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`THE WITNESS:
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`Yes, sir.
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`THE COURT:
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`Go ahead.
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`DIRECT EXAMINATION OF KEVIN ALMEROTH
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`CALLED IN REBUTTAL ON BEHALF OF THE PLAINTIFF
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`BY MR. HOLDREITH:
`
`Q.
`
`A.
`
`Q.
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`Good morning, Dr. Almeroth.
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`Good morning.
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`I want to just start by very briefly asking you:
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`Have you carefully considered the testimony and evidence
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`that Apple put on regarding infringement?
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`A.
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`Q.
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`Yes, I have.
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`And does anything you heard or saw that Apple put
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`on change your opinion about infringement in this case?
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`A.
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`There was nothing that Apple presented that
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`changes my opinions in this case with respect to
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`infringement.
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`Q.
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`And does it remain your conclusion that the iPods
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`infringe the claims as you explained previously?
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`A.
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`Yes.
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`That's correct.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 10
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 11 of 292 PageID #: 42725
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`Q.
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`All right.
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`Let me turn now to validity.
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`Dr. Almeroth, have you considered the testimony and
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`evidence Apple put on regarding validity of the patent
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`claims?
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`A.
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`Q.
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`Yes, I have.
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`And did you, yourself, perform a careful study of
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`the claims and of the prior art that Apple talked about
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`and arrive at an independent conclusion about validity in
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`this case?
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`A.
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`Yes, sir, I did.
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`Q.
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`And did you use the same care and attention to
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`detail when you did your validity study that you used
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`when you did your infringement study?
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`A.
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`That's correct.
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`Q.
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`What conclusion did you reach about the validity
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`of the patent claims in this case, Dr. Almeroth?
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`A.
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`I concluded that the patents were valid, that the
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`asserted claims that have been asserted against these
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`products are, in fact, valid.
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`Q.
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`And did you consider the DAD manual and the
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`demonstration of the DAD system?
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`A.
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`I did.
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`Q.
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`Now, can you just explain -- we'll go into some
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`detail in a minute.
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`But what is your conclusion about
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`whether the DAD renders the claims invalid, either by
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1119 - Page 11
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 12 of 292 PageID #: 42726
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`2638
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`obviousness or anticipation?
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`A.
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`It was my conclusion after reviewing the
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`demonstration and the system, as well as the DAD manual,
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`that both of those are missing key limitations from the
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`asserted claims; and, therefore, the claims are still
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`valid, even considering those systems and the manual.
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`Q.
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`A.
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`Q.
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`And are you prepared to explain that conclusion?
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`Yes.
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`Let's do that in a moment, but I want to ask you
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`about the Sound Blaster.
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`Did you consider the Sound
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`Blaster manual and the testimony about it?
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`A.
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`I did.
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`Q.
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`Did you also consider the Sound Blaster
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`combination that Dr. Wicker proposed?
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`A.
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`Yes, I considered that as well.
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`Q.
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`Now, do you agree with Dr. Wicker's conclusion
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`that the Sound Blaster is not the invention and by itself
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`it did not have playlists that it received from outside
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`the player?
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`A.
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`That part of his opinion I do agree with, that
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`there are missing limitations from the Sound Blaster.
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`Q.
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`What conclusion did you reach about whether it
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`would have been obvious to combine Sound Blaster with
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`some other things to arrive at the invention?
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`A.
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`For a number of reasons, I found that it would
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 12
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`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 13 of 292 PageID #: 42727
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`2639
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`have not been obvious to combine the Sound Blaster with
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`some of the other prior art that Dr. Wicker discussed.
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`And I further concluded that even if it was possible to
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`combine those things and there was a motivation to
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`combine, that those combinations would still be missing
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`key limitations from the asserted claims.
`
`Q.
`
`A.
`
`Q.
`
`And are you prepared to explain those conclusions?
`
`Yes, sir.
`
`Okay.
`
`We'll return to those in a moment as well.
`
`Now, did you do a study of something called
`
`"secondary considerations of nonobviousness"?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`A.
`
`Yes, I did.
`
`13
`
`Q.
`
`And is that a study where you're looking for
`
`14
`
`15
`
`evidence that, in fact, it would not have been obvious to
`
`combine things to arrive at the invention in this case?
`
`16
`
`A.
`
`That's correct.
`
`17
`
`Q.
`
`And is one of the things you looked at the
`
`18
`
`development of the player industry over time?
`
`19
`
`A.
`
`Yes, that's correct.
`
`20
`
`Q.
`
`Did you study whether players were using navigable
`
`21
`
`playlists that you could get from outside the player
`
`22
`
`prior to the patent being filed?
`
`23
`
`A.
`
`Yes.
`
`24
`
`Q.
`
`And what did you find?
`
`25
`
`A.
`
`I found that before the patent was filed, there
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 13
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 14 of 292 PageID #: 42728
`Jury Trial, Volume 9
`
`were no players with downloadable navigable playlists.
`
`Q.
`
`Did that continue for some period of time after
`
`2640
`
`the patent was filed?
`
`A.
`
`It did.
`
`It continued for a number of years, and
`
`that's part of what's formed my opinion about why there
`
`wouldn't have been a motivation to combine some of these
`
`references.
`
`It continued until at least 2000.
`
`I didn't
`
`find any other players, when I went and did my own
`
`survey, that had these downloadable navigable playlists.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`Does that evidence suggest that it was not obvious
`
`11
`
`12
`
`13
`
`to make the invention, at least to those people who were
`
`making players after the patent was filed and who weren't
`
`doing it with playlists you could receive from outside
`
`14
`
`the player?
`
`15
`
`A.
`
`That's exactly correct.
`
`The fact that no one had
`
`16
`
`17
`
`18
`
`19
`
`done it for one, two, three, four years after the patent
`
`application was filed is strong evidence suggesting that
`
`it wouldn't have been obvious to do some of the
`
`combinations that Dr. Wicker has identified.
`
`20
`
`Q.
`
`Did you also study whether the industry eventually
`
`21
`
`accepted the idea of being able to download separate
`
`22
`
`playlists onto a player and use them as navigable
`
`23
`
`playlists on the player?
`
`24
`
`A.
`
`Yes, I did.
`
`The second piece of my analysis was
`
`25
`
`to look at what happened around 2000-2001 when players
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 14
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 15 of 292 PageID #: 42729
`Jury Trial, Volume 9
`
`started to include downloadable navigable playlists, and
`
`what I found is that it was accepted by industry.
`
`It
`
`became a very important part of some of these players,
`
`and I think we've heard testimony about that in this case
`
`2641
`
`as well.
`
`Q.
`
`And does the acceptance by the industry allow you
`
`to conclude that having downloadable navigable playlists,
`
`or playlists that you receive from outside the player,
`
`that that's a desirable feature?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`Yes, it is.
`
`I mean, the fact that once the
`
`11
`
`12
`
`13
`
`14
`
`15
`
`playlists started being included in these devices, that
`
`it became an important feature and it was seen as an
`
`important feature, meant that before when it wasn't
`
`obvious and then suddenly the light bulb went on in about
`
`2000-2001, it became an important part of these players.
`
`16
`
`Q.
`
`And does that permit you to conclude that because
`
`17
`
`18
`
`it was desirable, if it had been obvious, then people
`
`working in this area would have adopted it sooner?
`
`19
`
`A.
`
`That's correct.
`
`If it had been an obvious idea,
`
`20
`
`21
`
`then in '95 or '96, right around the time of the patent,
`
`everyone would have said, "Oh, well, this is obvious.
`
`We
`
`22
`
`can just put these things together and have downloadable
`
`23
`
`navigable playlists.
`
`24
`
`It's important also that it became an
`
`25
`
`important feature.
`
`If it wasn't an important feature and
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 15
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 16 of 292 PageID #: 42730
`Jury Trial, Volume 9
`
`2642
`
`no one cared about it, then even though it might have
`
`been obvious, no one would have done it.
`
`But it's the
`
`fact that no one did it and as soon as it happened, it
`
`caught fire, those are important considerations for why
`
`these combinations were not obvious.
`
`Q.
`
`We'll come back to how you reached those
`
`conclusions and the evidence that you looked at in a
`
`moment.
`
`I would like to talk to you now about the tests
`
`that you are required to use and that you used for
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`studying invalidity.
`
`Okay?
`
`11
`
`A.
`
`Yes, sir.
`
`12
`
`Q.
`
`Now, is the anticipation analysis in any way
`
`13
`
`similar to the infringement analysis?
`
`14
`
`A.
`
`It is similar.
`
`15
`
`Q.
`
`And can you explain that?
`
`16
`
`A.
`
`Certainly.
`
`In the infringement analysis that I
`
`17
`
`18
`
`spent a good deal of time going over, you have to show --
`
`and I had to show -- that every single limitation was
`
`19
`
`present in the accused device.
`
`Every single limitation
`
`20
`
`has to be there.
`
`21
`
`Similarly, with anticipation Dr. Wicker has to
`
`22
`
`show that every single limitation of the claim is present
`
`23
`
`inside either the DAD system or the DAD manual or
`
`24
`
`anything else that he would say anticipates the asserted
`
`25
`
`claims.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 16
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 17 of 292 PageID #: 42731
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`
`Q.
`
`And anticipation, is that the question of whether
`
`something like the DAD manual is exactly the same as the
`
`2643
`
`claim?
`
`A.
`
`Q.
`
`That's correct.
`
`And if one thing is missing from the DAD that's in
`
`the claim, what does that mean?
`
`A.
`
`Then there is no anticipation, and the claim is
`
`valid.
`
`Q.
`
`Now, what about the level of evidence that's
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`needed when you do a validity analysis?
`
`Is that similar
`
`11
`
`to infringement?
`
`12
`
`A.
`
`No.
`
`That's different.
`
`13
`
`Q.
`
`And what's the difference?
`
`14
`
`A.
`
`For infringement it has to be what's called a
`
`15
`
`16
`
`17
`
`"preponderance of the evidence," which is sometimes
`
`called "more likely than not."
`
`For invalidity it has to
`
`be clear and convincing evidence, and that's a much
`
`18
`
`higher standard.
`
`19
`
`Q.
`
`So, if you're studying infringement and the
`
`20
`
`evidence is just slightly more likely than not that
`
`21
`
`everything is there, what does that mean for your
`
`22
`
`conclusion?
`
`23
`
`A.
`
`That infringement is still there.
`
`It still takes
`
`24
`
`place.
`
`25
`
`Q.
`
`And for validity?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 17
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 18 of 292 PageID #: 42732
`Jury Trial, Volume 9
`
`A.
`
`No.
`
`It has to meet that higher standard.
`
`It has
`
`2644
`
`to be clear, and it has to be convincing evidence.
`
`Q.
`
`All right.
`
`Now, compared to the infringement
`
`analysis and the evidence that was available for
`
`infringement, did you find in the invalidity evidence
`
`that there was anything missing to meet this higher
`
`standard of clear and convincing evidence?
`
`A.
`
`Q.
`
`Yes, I -- yes, there was.
`
`Please explain.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`Well, certainly.
`
`Just for infringement we looked
`
`11
`
`12
`
`through all of the user manuals, the bill of materials,
`
`the circuit diagrams, and most importantly the source
`
`13
`
`code.
`
`One of the things that was completely missing from
`
`14
`
`15
`
`the invalidity case presented by Dr. Wicker was any
`
`source code whatsoever.
`
`There was no analysis of that
`
`16
`
`source code.
`
`17
`
`18
`
`19
`
`20
`
`21
`
`And because many of the claim limitations
`
`require software algorithms, the lack of source code and
`
`the lack of analysis of the source code to determine that
`
`those steps of those algorithms existed in the source
`
`code is, by itself, a reason why there was not clear and
`
`22
`
`convincing evidence presented for why these claims are
`
`23
`
`invalid.
`
`24
`
`Q.
`
`All right.
`
`Dr. Almeroth, I'd like to now turn
`
`25
`
`specifically to the DAD and your analysis of the DAD.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 18
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 19 of 292 PageID #: 42733
`Jury Trial, Volume 9
`
`2645
`
`Okay?
`
`A.
`
`Q.
`
`Yes.
`
`Now, you said you found that there are things
`
`missing from the DAD that are in the claims; so, I want
`
`to ask you about that.
`
`Okay?
`
`A.
`
`Q.
`
`Yes.
`
`Let me start with the commands to skip in the
`
`claims, like skipping forward, skipping to the beginning
`
`of the current track, skipping back.
`
`And I will show you
`
`Demonstrative Exhibit 1013, which is a list of the
`
`limitations in the '076 patent claim 15.
`
`Can you explain your conclusions about that?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`A.
`
`Certainly.
`
`There are a number of limitations here
`
`14
`
`15
`
`that require different kinds of control commands, and
`
`those control commands are not present inside of the DAD
`
`16
`
`system.
`
`17
`
`18
`
`19
`
`20
`
`So, for example, "first one of said control
`
`commands," "a second one of said control commands," "two
`
`consecutive ones of said second control commands."
`
`Claim 15 of the '076 patent requires that
`
`21
`
`there be different control commands and that those
`
`22
`
`control commands relate to skip, which is 14E; skip back,
`
`23
`
`14F; and then this double back that we've talked about in
`
`24
`
`15A.
`
`25
`
`Q.
`
`And what did you find about the DAD?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 19
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 20 of 292 PageID #: 42734
`Jury Trial, Volume 9
`
`A.
`
`That the DAD does not have those separate skip
`
`2646
`
`buttons.
`
`Q.
`
`Well, the DAD does let you go to any song that you
`
`want to go to, right?
`
`A.
`
`That's correct.
`
`The way that the DAD works, on
`
`the list of songs you can select any one of those and
`
`that becomes the position indicator and then you can hit
`
`the "next" button and go to that song.
`
`But that
`
`procedure that you have to follow is not what's required
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`by these claims and by these limitations.
`
`11
`
`Q.
`
`Now, did you study this slide that Dr. Wicker
`
`12
`
`presented which was Defendant's Demonstrative 647?
`
`13
`
`A.
`
`Yes, I did.
`
`14
`
`Q.
`
`And does this have anything to do with what you
`
`15
`
`just explained?
`
`16
`
`A.
`
`Yes, it does.
`
`What's described here is the "next"
`
`17
`
`18
`
`19
`
`20
`
`button that we've seen before and then there is also a
`
`position indicator and that position indicator identifies
`
`the next thing that's to be played.
`
`And the way that
`
`this position indicator is, it represents this
`
`21
`
`highlighted bar here (indicating).
`
`And the user can
`
`22
`
`scroll through this list and select anything in that list
`
`23
`
`and that becomes the value that goes into that position
`
`24
`
`indicator.
`
`And until that point, nothing has actually
`
`25
`
`happened to make the player go to that song.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 20
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 21 of 292 PageID #: 42735
`Jury Trial, Volume 9
`
`At that point, then the user hits the "next"
`
`2647
`
`button; and whatever is identified here as the position
`
`counter is the thing that becomes the song that's
`
`currently -- that plays.
`
`Q.
`
`Dr. Almeroth, is there any button other than the
`
`"next" button that allows you to skip to a different
`
`song?
`
`A.
`
`Q.
`
`No.
`
`There's just the one button.
`
`So, if you want to go forward, what do you have to
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`do?
`
`11
`
`A.
`
`Well, to go forward, you have to select the next
`
`12
`
`song and then --
`
`13
`
`Q.
`
`Which control do you hit?
`
`14
`
`A.
`
`You hit the "next" button.
`
`15
`
`Q.
`
`If you want to go back, what do you have to do?
`
`16
`
`A.
`
`You have to do some things in the menu and then
`
`17
`
`hit the "next" button.
`
`18
`
`Q.
`
`It's a "next" button there, too?
`
`19
`
`A.
`
`It's always the "next" button.
`
`That's the only
`
`20
`
`control that's there.
`
`21
`
`Q.
`
`Did you look for testimony to confirm your
`
`22
`
`analysis that the DAD lacks different commands for
`
`23
`
`skipping?
`
`24
`
`A.
`
`Yes, I did.
`
`25
`
`Q.
`
`And did you find some?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 21
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 22 of 292 PageID #: 42736
`Jury Trial, Volume 9
`
`A.
`
`Q.
`
`I did.
`
`All right.
`
`I'm showing you now Plaintiff's
`
`Demonstrative Exhibit 2004.
`
`This is some trial testimony
`
`from Eugene Novacek.
`
`Is this something you considered?
`
`2648
`
`A.
`
`Q.
`
`A.
`
`Yes, it is.
`
`And how does this relate to your opinion?
`
`The questions here are whether or not Mr. Novacek
`
`is familiar with the CD players and the CD players having
`
`separate buttons.
`
`So, (reading) are you familiar with
`
`these separate buttons?
`
`Yes, I am.
`
`And what these buttons do?
`
`Yes.
`
`And he didn't put those buttons into the DAD.
`
`The way that Mr. Novacek specifically designed the DAD
`
`was not to have the kinds of buttons like what were on a
`
`CD player, and he did that on purpose because of what he
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`was trying to do with the DAD.
`
`19
`
`Q.
`
`Could you just read into the record Mr. Novacek's
`
`20
`
`answer at page 1960 of the transcript from lines 20 to
`
`21
`
`24?
`
`22
`
`A.
`
`The question was:
`
`"But you decided it would be
`
`23
`
`best for your product to just have a "next" button and to
`
`24
`
`not have a separate 'skip forward' or 'skip back' button
`
`25
`
`on the interface, right?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 22
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 23 of 292 PageID #: 42737
`Jury Trial, Volume 9
`
`2649
`
`"That's correct."
`
`And did that confirm your analysis?
`
`That's correct, yes.
`
`Now, is there a reason, Dr. Almeroth, that a
`
`Q.
`
`A.
`
`Q.
`
`person designing the DAD, thinking about the DAD would
`
`not include these skip buttons?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`There is a reason.
`
`What is that reason?
`
`The DAD was designed for use in radio and
`
`television broadcasting and Mr. Novacek said that the
`
`interface was designed after something called a "cart
`
`machine" which is something used in radio stations and
`
`that's the idea where you have these set of tracks and as
`
`you play on the radio station, you can hit one button and
`
`it goes to the next track and you hit a button and it
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`goes to the next track.
`
`17
`
`18
`
`19
`
`20
`
`I mean, on the radio there isn't really this
`
`concept of rewind to the beginning of the song and start
`
`over and play again or you're listening to the radio and
`
`the DJ says, "Well, we really like that song.
`
`Let's go
`
`21
`
`back and listen to that song again."
`
`There is a specific
`
`22
`
`sequence of songs, and that's the sequence of songs that
`
`23
`
`you follow.
`
`There isn't a need in the radio station, for
`
`24
`
`example, to do the skip forward, skip back, and those
`
`25
`
`kinds of commands.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 23
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 24 of 292 PageID #: 42738
`Jury Trial, Volume 9
`
`Q.
`
`Did you look for any testimony that confirms your
`
`2650
`
`analysis?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes, I did.
`
`Did you find any?
`
`Yes, I did.
`
`I'm showing you now Plaintiff's Demonstrative
`
`2005.
`
`This is testimony of Mr. Novacek again.
`
`Does this
`
`have something to do with what you just explained?
`
`A.
`
`Yes, it does.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`Can you please explain that?
`
`11
`
`A.
`
`Sure.
`
`The first question on the page here was,
`
`12
`
`13
`
`14
`
`15
`
`"In fact, you thought about this; but what you wanted to
`
`do was implement something like a cart machine, not
`
`something with CD controls."
`
`And Mr. Novacek said, "We wanted the
`
`16
`
`combination of them.
`
`We left out the controls we didn't
`
`17
`
`18
`
`19
`
`think that would be that needed."
`
`And then there was a question.
`
`(Reading) And
`
`you looked at how you wanted to implement a cart or a CD
`
`20
`
`and there's really no "next" or "skip'"?
`
`21
`
`22
`
`"No, not in the way you're describing it."
`
`And then there's additional testimony here
`
`23
`
`about how the cart machine really only has the "next"
`
`24
`
`button.
`
`"And on the DAD system, you were trying to
`
`25
`
`replace the cart machine with an electronic system?"
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 24
`
`
`
`Case 9:09-cv-00111-RC Document 542 Filed 09/13/11 Page 25 of 292 PageID #: 42739
`Jury Trial, Volume 9
`
`2651
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`It was specifically being designed for
`
`replacing cart machines in radio stations, and that's
`
`what Mr. Novacek said.
`
`Q.
`
`And were you indicating testimony at page 1960 to
`
`1962 of the trial transcript?
`
`A.
`
`Q.
`
`Yes, sir.
`
`All right, Dr. Almeroth.
`
`Now, in addition to the
`
`commands to skip, did you also consider limitations in
`
`the patent claims that require algorithms for doing the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`skip after somebody presses a command button?
`
`11
`
`A.
`
`Yes.
`
`12
`
`Q.
`
`And what did you conclude about that?
`
`13
`
`A.
`
`Well, first, I concluded that there was no source
`
`14
`
`code provided.
`
`There was no source code that Dr. Wicker
`
`15
`
`16
`
`17
`
`analyzed to find the algorithm as it's described in the
`
`judge's construction; and that was a critical step,
`
`especially for establishing clear and convincing
`
`18
`
`evidence.
`
`19
`
`20
`
`Now, on top of that, the way that the DAD
`
`system works, you can see the interface and you can
`
`21
`
`immediately tell that the algorithm isn't there.
`
`22
`
`Normally you would have to look at the source code and
`
`23
`
`analyze the algorithm, but there's evidence just in the
`
`24
`
`interface that says why that algorithm is not present.
`
`25
`
`Q.
`
`All right.
`
`Let's just make sure we're oriented.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1119 - Page 25
`
`
`
`
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