MS 1023
`MS 1023
`
`
`MS 1023
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`
`
`Jury Trial, Volume 4
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 1 of 373 PageID #: 40977
`
`889
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`DOCKET 9:09CV111
`
`JUNE 28, 2011
`
`8:28 A.M.
`
`BEAUMONT, TEXAS
`
`||||| ||
`
`PERSONAL AUDIO, LLC
`
`VS.
`
`APPLE, INC., ET AL
`
`--------------------------------------------------------
`
`VOLUME 4 OF __, PAGES 889 THROUGH 1261
`
`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
`
`1 2 3 4 5 6 7 8 9
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 1
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`
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`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 2 of 373 PageID #: 40978
`Jury Trial, Volume 4
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`FOR THE DEFENDANTS:
`
`890
`
`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.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`MS 1023 - Page 2
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`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 3 of 373 PageID #: 40979
`Jury Trial, Volume 4
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`INDEX
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`891
`
`CONTINUED DIRECT EXAM OF KEVIN C. ALMEROTH
`
`CROSS-EXAMINATION OF KEVIN C. ALMEROTH
`
`DIRECT EXAMINATION OF ANTHONY M. FADELL
`
`CROSS-EXAMINATION OF ANTHONY M. FADELL
`
`PAGE
`
`897
`
`1026
`
`1057
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`1100
`
`CONTINUED CROSS-EXAM OF KEVIN C. ALMEROTH
`
`1168
`
`CONCORDANCE INDEX
`
`1220
`
`INDEX OF EXHIBITS
`
`Plaintiff's Exhibit 287
`
`Plaintiff's Exhibit 98
`
`Plaintiff's Exhibit 98
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 715
`
`Plaintiff's Exhibit 714
`
`Plaintiff's Exhibit 713
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`905
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`906
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`907
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`914
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`914
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`914
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`917
`
`917
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`917
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`917
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`917
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`MS 1023 - Page 3
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`892
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`919
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`924
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`926
`
`927
`
`953
`
`953
`
`960
`
`960
`
`963
`
`964
`
`975
`
`975
`
`979
`
`979
`
`984
`
`985
`
`985
`
`985
`
`987
`
`987
`
`988
`
`988
`
`989
`
`992
`
`992
`
`Plaintiff's Exhibit 714
`
`Plaintiff's Exhibit 628A
`
`Plaintiff's Exhibit 628A
`
`Plaintiff's Exhibit 628A
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 113
`
`Plaintiff's Exhibit 377
`
`Plaintiff's Exhibit 712
`
`713, and 714 and 715
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 715
`
`Plaintiff's Exhibit 714
`
`Plaintiff's Exhibit 713
`
`712, 713, 714, and 715
`
`Plaintiff's Exhibit 712
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`Plaintiff's Exhibit 712
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 4
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`893
`
`993
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`999
`
`1000
`
`1001
`
`1001
`
`1003
`
`1008
`
`1009
`
`1009
`
`1010
`
`1010
`
`1011
`
`1012
`
`1012
`
`1012
`
`1013
`
`1013
`
`1014
`
`1014
`
`1015
`
`1015
`
`1015
`
`1016
`
`1017
`
`1017
`
`Plaintiff's Exhibit 712
`
`Plaintiff's Exhibit 161
`
`Plaintiff's Exhibit 715
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 772A through 781A
`
`Plaintiff's Exhibit 104
`
`Plaintiff's Exhibit 298
`
`Plaintiff's Exhibit 321
`
`Plaintiff's Exhibit 95
`
`Exhibit 95
`
`Plaintiff's Exhibit 102
`
`Plaintiff's Exhibit 294
`
`Plaintiff's Exhibit 317
`
`Plaintiff's Exhibit 92
`
`Plaintiff's Exhibit 113
`
`Plaintiff's Exhibit 310
`
`Plaintiff's Exhibit 322
`
`Plaintiff's Exhibit 96
`
`Plaintiff's Exhibit 105
`
`Plaintiff's Exhibit 311
`
`Plaintiff's Exhibit 323
`
`Plaintiff's Exhibit 97
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`Plaintiff's Exhibit 106
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`Plaintiff's Exhibit 292
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 5
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`
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`894
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`1018
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`1018
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`1019
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`1020
`
`1021
`
`1021
`
`1022
`
`1023
`
`1024
`
`1024
`
`1025
`
`1025
`
`1028
`
`1031
`
`1060
`
`1061
`
`1061
`
`1062
`
`1062
`
`1069
`
`1076
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`1078
`
`1080
`
`1090
`
`1090
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`Plaintiff's Exhibit 331
`
`Plaintiff's Exhibit 98
`
`Plaintiff's Exhibit 103
`
`Plaintiff's Exhibit 278
`
`Plaintiff's Exhibit 290
`
`Plaintiff's Exhibit 314
`
`Plaintiff's Exhibit 99
`
`Plaintiff's Exhibit 107
`
`Plaintiff's Exhibit 291
`
`Plaintiff's Exhibit 85
`
`Plaintiff's Exhibit 100
`
`Plaintiff's Exhibit 100
`
`Plaintiff's Exhibit 1
`
`Plaintiff's Exhibit 1
`
`Plaintiff's Exhibit 784
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`Plaintiff's Exhibit 784
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`Plaintiff's Exhibit 784
`
`Plaintiff's Exhibit 784
`
`Plaintiff's Exhibit 784
`
`Plaintiff's Exhibit 753
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`Plaintiff's Exhibit 754
`
`Plaintiff's Exhibit 755
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`Plaintiff's Exhibit 745
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`36
`
`Plaintiff's Exhibit 36
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 6
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`
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`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 7 of 373 PageID #: 40983
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`895
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`1090
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`1096
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`1138
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`1140
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`1142
`
`1147
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`901
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`952
`
`952
`
`952
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`953
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`1044
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`1047
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`1048
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`1068
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`1112
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`1116
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`1121
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`1123
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`1125
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`1126
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`1127
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`1128
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`Plaintiff's Exhibit 36
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`Plaintiff's Exhibit 377
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 745
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`Plaintiff's Exhibit 745
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`Defendant's Exhibit 104
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`Defendant's Exhibit 102
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`Defendant's Exhibit 108
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`Defendant's Exhibit 109
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`Defendant's Exhibit 109
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`Defendant's Exhibit 271
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`Defendant's Exhibit 271
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`Defendant's Exhibit 57
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`Defendant's Exhibit 271
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 303
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 7
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`Defendant's Exhibit 305
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`Defendant's Exhibit 305
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`Defendant's Exhibit 303
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`Defendant's Exhibit 305
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`Defendant's Exhibit 303
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`Defendant's Exhibit 261
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`Defendant's Exhibit 261
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`Defendant's Exhibit 261
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`Defendant's Exhibit 261
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`896
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`1128
`
`1128
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`1128
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`1129
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`1129
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`1149
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`1153
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`1153
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`1154
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`409/654-2891
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`MS 1023 - Page 8
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`Jury Trial, Volume 4
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 9 of 373 PageID #: 40985
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`(REPORTER'S NOTES PERSONAL AUDIO V. APPLE,
`
`897
`
`JURY TRIAL, VOLUME 4, 8:28 A.M., TUESDAY, JUNE 28, 2011,
`
`BEAUMONT, TEXAS, HON. RON CLARK PRESIDING.)
`
`(OPEN COURT, ALL PARTIES PRESENT, JURY
`
`PRESENT.)
`
`gentlemen.
`
`THE COURT:
`
`Welcome back, ladies and
`
`Counsel, go ahead.
`
`MR. HOLDREITH:
`
`Thank you, your Honor.
`
`CONTINUED DIRECT EXAMINATION OF
`
`KEVIN C. ALMEROTH
`
`CALLED ON BEHALF OF THE PLAINTIFF
`
`BY MR. HOLDREITH:
`
`Q.
`
`A.
`
`Q.
`
`Good morning, Dr. Almeroth.
`
`Good morning.
`
`When we left off yesterday, we were looking at
`
`this Demonstrative Number 1058 on the iPod groups.
`
`I'd
`
`like to ask you now:
`
`For each of the seven groups that
`
`we haven't talked about yet, 2 through 8 and the classic
`
`1 and 2 as well, did you also analyze a user guide and
`
`technical specifications and a chip schematic and a bill
`
`of materials?
`
`A.
`
`Yes, I did.
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`1 2 3 4 5 6 7 8 9
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`19
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`20
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`21
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`22
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`23
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`24
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`Q.
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`And for purposes of the information that you were
`
`25
`
`relying on to determine what's in the iPods, did those
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 9
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`kinds of documents contain the same information in the
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`user guides and chip schematics and bills of materials
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`and technical specifications that you found in the
`
`documents for the classic 3?
`
`A.
`
`They contained very similar information.
`
`Some of
`
`it was identical.
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`Much of it was overlapping.
`
`So, it
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`really became a process of what I've talked about for
`
`classic 3, finding similar kinds of information in the
`
`other materials.
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`1 2 3 4 5 6 7 8 9
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`10
`
`Q.
`
`Are you prepared, Dr. Almeroth, to explain where
`
`11
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`12
`
`you found differences that mattered to your infringement
`
`analysis in these other seven groups?
`
`13
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`A.
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`Yes, sir, I am.
`
`14
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`Q.
`
`And have you prepared a chart to help illustrate
`
`15
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`that testimony?
`
`16
`
`A.
`
`I have.
`
`17
`
`Q.
`
`Dr. Almeroth, I'm now showing you the
`
`18
`
`Demonstrative Exhibit 1059.
`
`Can you explain what this
`
`19
`
`is, please?
`
`20
`
`A.
`
`Yes.
`
`This is a chart that I prepared.
`
`It has the
`
`21
`
`groups across the top, 1 through 8.
`
`And then down the
`
`22
`
`rows are the different elements as they relate to
`
`23
`
`claim 1.
`
`What that means is inside of the table what
`
`24
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`I've identified is differences between the devices and
`
`25
`
`between the groups; and then I've also recognized that
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 10
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`for other parts, they are also substantially the same.
`
`Q.
`
`All right.
`
`So, just to orient us, across the top
`
`where it says "Group 1, 2, 3, 4, 5, 6, 7, 8," is that the
`
`same groups we've been talking about?
`
`A.
`
`Q.
`
`Yes, sir, they are.
`
`And down the column that says "Element," are these
`
`related to the patent claims in '076 claim 1 somehow?
`
`A.
`
`Q.
`
`Yes, they are.
`
`Explain that, please.
`
`1 2 3 4 5 6 7 8 9
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`10
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`A.
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`There is a little bit of a shorthand that I've
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`11
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`12
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`13
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`14
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`used in the words themselves, but I've also included a
`
`key that references to the number and the letter that
`
`corresponds to the board on the left so that I can
`
`explain some of those similarities and differences across
`
`15
`
`the limitations.
`
`16
`
`Q.
`
`So, for example, the first row has the label
`
`17
`
`"means for accepting commands 1C" here (indicating).
`
`18
`
`A.
`
`Yes.
`
`19
`
`Q.
`
`How is that related to the '076 claim 1?
`
`20
`
`A.
`
`That is element 1C from claim 1 of the
`
`21
`
`'076 patent.
`
`22
`
`Q.
`
`All right.
`
`Now, why is there a row across next to
`
`23
`
`"means for accepting commands 1C"?
`
`What's the
`
`24
`
`significance of that?
`
`25
`
`A.
`
`The goal of this chart is to be able to take any
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1023 - Page 11
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`900
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`column and any row and match it up.
`
`And what I've tried
`
`to do then inside the body of the table is where there
`
`were similarities across the devices, those rows -- or
`
`those cells would be grouped together.
`
`And where there
`
`were differences that I had to analyze with respect to my
`
`opinion, then there would be a dividing line.
`
`So, for example, in the "means for accepting,"
`
`the classic 3 that we've talked about had the buttons
`
`across the top; but all of the other devices in the
`
`groups had the buttons that were inside of the
`
`Clickwheel, that you could just press the Clickwheel and
`
`that would correspond to the button.
`
`So, that was a
`
`difference that I had noted and want to discuss now.
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
`
`Q.
`
`All right.
`
`Just as a reminder, I'll put the
`
`15
`
`16
`
`17
`
`definition for the structure for that element 1C, means
`
`for accepting, up on the big screen.
`
`That was the one
`
`where you were looking for a structure that is equivalent
`
`18
`
`to a keyboard?
`
`19
`
`A.
`
`That's correct.
`
`20
`
`Q.
`
`All right.
`
`And I think you've already explained
`
`21
`
`it in part.
`
`Could you just briefly explain, did you find
`
`22
`
`structure that is identical or equivalent to the keyboard
`
`23
`
`structure in all of the seven other groups of iPods that
`
`24
`
`you analyzed?
`
`25
`
`A.
`
`Yes, I did.
`
`As I said, the keys that are part of
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`901
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`this board of keys here are separate from the Clickwheel.
`
`But then in the later versions -- and I'll do the mini 2
`
`because it's still a little bit bigger.
`
`You have --
`
`Q.
`
`Doctor -- I'm sorry -- could you just tell us the
`
`exhibit number for the iPod you're holding in your hand?
`
`A.
`
`Q.
`
`A.
`
`Yes, sir.
`
`This is Defendant's Exhibit 104.
`
`Thank you.
`
`This device has the buttons that are part of the
`
`Clickwheel.
`
`You can still move your finger around in a
`
`circular fashion to navigate up and down lists, but the
`
`buttons themselves are part of the Clickwheel.
`
`So, in
`
`order to, for example, skip, you just have to press that
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`button.
`
`And I don't know if they'll be able to see
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`these, but you can feel when you press it that there is a
`
`click just like with a key on a keyboard.
`
`And that's the same for all of the devices,
`
`all of the way up into the nano 5, which is a little bit
`
`harder to see but it has the same kind of configuration.
`
`And what I'm showing in this
`
`Demonstrative 1059 is that in the classic 3, the buttons
`
`were separate from the Clickwheel; and then afterwards
`
`22
`
`they were all integrated into the Clickwheel.
`
`23
`
`Q.
`
`And are the buttons that are on the Clickwheel
`
`24
`
`there -- are those the same buttons that were in a row
`
`25
`
`across the top on the classic 3?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 13
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 14 of 373 PageID #: 40990
`Jury Trial, Volume 4
`
`A.
`
`That's correct.
`
`There are the four buttons, the
`
`back command, the menu, the play/pause, and then the skip
`
`902
`
`command.
`
`Q.
`
`And they do the same thing as the four buttons on
`
`the classic 3?
`
`A.
`
`Q.
`
`Yes.
`
`That's correct.
`
`All right.
`
`Dr. Almeroth, did you find element 1C
`
`of the '076 patent, claim 1, in all seven groups that you
`
`analyzed other than the classic 3?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`Yes, I did.
`
`11
`
`Q.
`
`All right.
`
`I'd like to ask you now about the next
`
`12
`
`13
`
`row on Demonstrative Exhibit 1059 labeled "persistent
`
`storage" with element 1A and 1B.
`
`What is that?
`
`14
`
`A.
`
`This relates to the persistent storage that's
`
`15
`
`16
`
`required for the limitations 1A and 1B.
`
`As we discussed
`
`yesterday with respect to classic 3, 1A requires a means
`
`17
`
`for storing.
`
`1B is the means for receiving and storing.
`
`18
`
`19
`
`20
`
`With respect to the storing limitations that
`
`are required in the function and then the corresponding
`
`structure, I analyzed all eight groups and all 18 devices
`
`21
`
`with respect to that persistent storage.
`
`And what I've
`
`22
`
`done for this row is there are basically two types of
`
`23
`
`persistent mass storage that are used in these devices.
`
`24
`
`There's the hard disk drive that we used for classic 3.
`
`25
`
`And, in fact, that first column is representative of what
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 14
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 15 of 373 PageID #: 40991
`Jury Trial, Volume 4
`
`we went through in detail yesterday.
`
`903
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`You're speaking about Column 1 here (indicating)?
`
`Yes, sir.
`
`Okay.
`
`So, for example, we talked about the hard disk
`
`drive in classic 3.
`
`Classic 4 and classic 5 have a hard
`
`disk drive.
`
`Nanos 1, 2, and 3 have a NAND flash; and I
`
`can talk about that in a little bit more detail.
`
`And
`
`then classic 6 has a hard disk drive, and the nano 4 and
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`5 have this NAND flash that they use as persistent mass
`
`11
`
`storage.
`
`12
`
`13
`
`So, that's a difference between the devices;
`
`but it doesn't affect my conclusion.
`
`14
`
`Q.
`
`Dr. Almeroth, let me pause for a moment.
`
`I see
`
`15
`
`16
`
`that Group 6 has a nano 3 and a classic 6 but they have
`
`different persistent storage; is that right?
`
`17
`
`A.
`
`That's correct.
`
`18
`
`Q.
`
`And the nano 3 and the classic 6, are they grouped
`
`19
`
`together in the same Group 6?
`
`20
`
`A.
`
`That's correct.
`
`Apple had grouped these together
`
`21
`
`to create one group with nano 3 and classic 6.
`
`And
`
`22
`
`what's interesting about that grouping is one of the
`
`23
`
`devices has a hard disk drive and one of the devices has
`
`24
`
`a NAND flash for persistent mass storage.
`
`25
`
`In other words, by grouping these together,
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 15
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 16 of 373 PageID #: 40992
`Jury Trial, Volume 4
`
`Apple didn't draw a distinction between the type of mass
`
`904
`
`storage that was used in the device; and that's
`
`consistent with my opinion as well.
`
`Q.
`
`A.
`
`What is NAND flash?
`
`NAND flash is a kind of chip that you're able to
`
`store programs on.
`
`There is a type of flash memory that
`
`you use in the little USB connector memory devices that
`
`you plug in.
`
`It's persistent because when power leaves
`
`the device, what's stored on that device is still there.
`
`There's advantages to using NAND.
`
`For
`
`example, it doesn't have the spinning hard disk drive.
`
`But what's important for the limitation is that it's
`
`still a persistent mass storage device.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`Q.
`
`And for people in your field, is NAND flash a kind
`
`15
`
`of persistent storage?
`
`16
`
`A.
`
`Yes, it is.
`
`17
`
`Q.
`
`All right.
`
`How did you determine that the -- some
`
`18
`
`19
`
`of these other devices in Groups 4, 5, 7, and 8 have NAND
`
`flash for persistent storage for storing songs on a
`
`20
`
`sequencing file?
`
`21
`
`A.
`
`I used much of the same methodology, the kinds of
`
`22
`
`documents that I described yesterday with respect to the
`
`23
`
`classic 3.
`
`So, for example, the technical specification,
`
`24
`
`the bill of materials, and then the chip schematics all
`
`25
`
`describe using the NAND flash memory to store songs and
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 16
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 17 of 373 PageID #: 40993
`Jury Trial, Volume 4
`
`playlists.
`
`Q.
`
`I'm showing you now Plaintiff's Exhibit 287.
`
`What
`
`905
`
`is this?
`
`A.
`
`This is part of the technical specification.
`
`This
`
`is one of the documents, and it relates to -- now we're
`
`talking about the nano third generation device.
`
`Q.
`
`A.
`
`Q.
`
`And that's what the title says up here?
`
`Yes, sir.
`
`Now, what in this document was relevant to the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`persistent storage and the NAND flash?
`
`11
`
`A.
`
`There's two parts I would want to point out to.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`The first is the top part of this table.
`
`And it talks
`
`about storage and capacity and it talks about the
`
`4 gigabytes and also there is a second type of device
`
`that has 8 gigabytes instead of the 4 gigabytes.
`
`And it
`
`talks about using that storage for songs.
`
`17
`
`Q.
`
`And did you also inspect the iPods and determine
`
`18
`
`whether that storage is used for the sequencing file?
`
`19
`
`A.
`
`Yes, sir, I did.
`
`20
`
`Q.
`
`What did you find?
`
`21
`
`A.
`
`I found that that same NAND flash memory as the
`
`22
`
`persistent mass storage device is used for both songs and
`
`23
`
`playlists.
`
`24
`
`Q.
`
`Was there another part of this document you wanted
`
`25
`
`to point out?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 17
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 18 of 373 PageID #: 40994
`Jury Trial, Volume 4
`
`906
`
`A.
`
`Down here (indicating), under "capacity," it
`
`provides a little bit more information.
`
`It mentions
`
`again that the capacity of this flash drive is
`
`4 gigabytes and 8 gigabytes.
`
`Q.
`
`A.
`
`What does that tell you?
`
`That tells you that -- especially these other
`
`lines where it talks about the songs and the format are
`
`related to using that device to store -- the NAND flash
`
`drive to store songs.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`As long as we're on this document, Dr. Almeroth, I
`
`11
`
`12
`
`just wanted to ask you:
`
`There's a reference here -- if I
`
`could just pull it up -- to "included accessories."
`
`What
`
`13
`
`does this tell us?
`
`14
`
`A.
`
`One of the included accessories are the earphones.
`
`15
`
`That was the part that you needed for the speakers, or
`
`16
`
`headphones.
`
`And then it also includes the USB cable as
`
`17
`
`well.
`
`18
`
`Q.
`
`Dr. Almeroth, in addition to the technical
`
`19
`
`specification, how did you determine that that flash
`
`20
`
`storage is NAND flash storage?
`
`21
`
`A.
`
`I looked at both the bill of materials and also
`
`22
`
`the chip schematic.
`
`23
`
`Q.
`
`All right.
`
`Let's look at the chip schematic.
`
`I'm
`
`24
`
`showing you Plaintiff's Exhibit 98.
`
`What is this?
`
`25
`
`A.
`
`This is for N46 -- that's the internal code word
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 18
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 19 of 373 PageID #: 40995
`Jury Trial, Volume 4
`
`907
`
`for the -- I believe it's the nano 3.
`
`And down here
`
`(indicating) it talks about NAND flash, and it has in
`
`parentheses "mass storage."
`
`Q.
`
`Okay.
`
`And is that an indication you relied on to
`
`find that the iPod nano's NAND flash is persistent mass
`
`storage?
`
`A.
`
`Q.
`
`It is.
`
`Just as long as we're looking at this document, do
`
`you see the line that says -- line 6 here, "WM audio"?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`A.
`
`Yes.
`
`11
`
`Q.
`
`What's that a reference to?
`
`12
`
`A.
`
`That's a reference to the audio -- the
`
`13
`
`digital-audio conversion capability that's inside of the
`
`14
`
`nano 3.
`
`It's part of this device.
`
`15
`
`Q.
`
`And line 7 talks about "FireWire power" and "USB
`
`16
`
`RVP."
`
`What's that about?
`
`17
`
`A.
`
`What that's describing is by the time that you get
`
`18
`
`19
`
`20
`
`21
`
`to nano 3, it still has FireWire but the only use of
`
`FireWire at this point is for charging.
`
`All of the data
`
`transfer features are being done through USB; so, the
`
`songs in the playlists come over the USB cable and not
`
`22
`
`FireWire.
`
`23
`
`Q.
`
`All right.
`
`Now, you mentioned NAND flash is on
`
`24
`
`page 4.
`
`If we go to page 4 of Plaintiff's Exhibit 98,
`
`25
`
`what does this show?
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 19
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 20 of 373 PageID #: 40996
`Jury Trial, Volume 4
`
`A.
`
`This is the NAND flash, and then there is the
`
`controller.
`
`The controller is the gateway that will read
`
`908
`
`and write data from the NAND flash.
`
`Q.
`
`Now, Dr. Almeroth, having looked at these
`
`documents, did you find that there was similar
`
`information in the technical specifications and the chip
`
`schematics for all eight groups of iPods that you
`
`analyzed?
`
`A.
`
`Yes, I did.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`Do all eight groups have a high-speed RAM storage
`
`11
`
`and a persistent mass storage that's either a hard drive
`
`12
`
`or a NAND flash?
`
`13
`
`A.
`
`Yes, they do.
`
`14
`
`Q.
`
`And did you find, therefore, that elements 1A and
`
`15
`
`1B are met of the '076 claim 1 for all eight groups of
`
`16
`
`iPods?
`
`17
`
`A.
`
`That's correct.
`
`18
`
`Q.
`
`All right, Dr. Almeroth.
`
`Now, I asked you about
`
`19
`
`how you found that there is RAM.
`
`Can you point us to
`
`20
`
`that?
`
`21
`
`A.
`
`Yes.
`
`There are additional documents, both -- and
`
`22
`
`I believe in the chip spec and then also in the technical
`
`23
`
`specifications that describe the use of RAM.
`
`24
`
`Q.
`
`Okay.
`
`Let's go to the next row here, which is
`
`25
`
`"algorithms."
`
`And it says that's relevant to 1D, 1E, and
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 20
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 21 of 373 PageID #: 40997
`Jury Trial, Volume 4
`
`909
`
`1F.
`
`Can you explain that, please?
`
`A.
`
`Yes.
`
`The software that we looked at yesterday, 1D
`
`was continuously playing; 1E was the means for
`
`detecting -- I went over that fairly quickly because
`
`Apple has not contested that that limitation is
`
`present -- and then for 1F, that was executing the skip
`
`forward command.
`
`And those were the three parts of this
`
`claim that had algorithm steps.
`
`So, what I have labeled here as the row is the
`
`label of "algorithms"; and what I've pointed out is
`
`across these eight groups, there are really three
`
`different types of software.
`
`The first one was
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`"Player.c."
`
`Most of the functions that we looked at
`
`14
`
`15
`
`16
`
`17
`
`yesterday were in a file called "Player.c."
`
`What happened then after nano 1 was they
`
`started to do some updating and a transition to a new
`
`function or a new file and a new set of functions called
`
`18
`
`"TPodMediaPlayer."
`
`And the ".cpp" refers to an updated
`
`19
`
`version of the C programming language called "C" and then
`
`20
`
`"++."
`
`So, I analyzed that as well.
`
`21
`
`And then for the nano 2, it was slightly
`
`22
`
`different because it was in the process of transitioning.
`
`23
`
`And I looked at the source code for all of the devices to
`
`24
`
`confirm that everything that I talked about yesterday
`
`25
`
`with respect to the limitations 1D, 1E, and 1F were in
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 21
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 22 of 373 PageID #: 40998
`Jury Trial, Volume 4
`
`910
`
`all of that different software.
`
`Q.
`
`So, let's just understand this, Dr. Almeroth.
`
`One
`
`change you just mentioned is that some iPods were using
`
`this Player.c type code, and then did Apple later go to
`
`use some of this TPodMediaPlayer.cpp type code?
`
`A.
`
`Yes.
`
`I mentioned that there were 23,000 files
`
`across the 13 devices; and I've really just picked one of
`
`the main file names to represent all of the code.
`
`Many of the files stayed the same that were
`
`relevant to my analysis.
`
`Some changed over time and --
`
`but at the same time, I found all of the algorithms that
`
`I discussed yesterday in the different code.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`Q.
`
`And for the devices in Groups 1, 2, 3, and 4 --
`
`14
`
`15
`
`16
`
`MR. HOLDREITH:
`
`Your Honor, may I point
`
`something out on the chart?
`
`THE COURT:
`
`You may.
`
`17
`
`BY MR. HOLDREITH:
`
`18
`
`Q.
`
`For 1, 2, 3, and 4 that use this Player.c type
`
`19
`
`code, is it exactly the same for all four of those?
`
`20
`
`A.
`
`It's not exactly the same, but it's very close.
`
`21
`
`One of the ways that you can tell is that the names of
`
`22
`
`the functions are the same.
`
`For example, there would be
`
`23
`
`a PlayerNext function and you can look at the source code
`
`24
`
`and the next file and it's still called "PlayerNext."
`
`25
`
`And then in the next it's called "PlayerNext."
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 22
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 23 of 373 PageID #: 40999
`Jury Trial, Volume 4
`
`The same thing for some of the other functions
`
`911
`
`that were described that -- that I described yesterday.
`
`They have the very similar kind of algorithms.
`
`There's a
`
`couple of different steps as some of the devices included
`
`additional features.
`
`There's additional things that the
`
`software would do.
`
`But by and large and especially with
`
`respect to my analysis for infringement here, those
`
`algorithms were very, very similar.
`
`Q.
`
`And for the iPods in Groups 5, 6, 7, and 8 that
`
`use the hybrid and the TPodMediaPlayer.cpp type code, did
`
`you analyze all of those?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`A.
`
`Yes, I did.
`
`13
`
`Q.
`
`And are those exactly the same?
`
`14
`
`A.
`
`No.
`
`Again there are some small differences, but
`
`15
`
`16
`
`by and large the algorithms that are present in that
`
`source code are very similar across all of those groups.
`
`17
`
`Q.
`
`Did you also look at classic 1 and 2 source code?
`
`18
`
`A.
`
`I did and it used Player.c and it was very similar
`
`19
`
`to Groups 1 through 4.
`
`20
`
`Q.
`
`Okay.
`
`Now, Dr. Almeroth, as a reminder, are we
`
`21
`
`talking about the algorithms like on Demonstrative
`
`22
`
`Exhibit 1010 that I have on the screen now?
`
`23
`
`A.
`
`Yes, sir.
`
`The parts that are highlighted that
`
`24
`
`represent the algorithm -- or the algorithms for the
`
`25
`
`commands that are highlighted in this demonstrative.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 23
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 24 of 373 PageID #: 41000
`Jury Trial, Volume 4
`
`Q.
`
`And is this something that you looked into the
`
`912
`
`source code to find?
`
`A.
`
`Q.
`
`That's correct.
`
`Okay.
`
`And when we walked through lines of source
`
`code yesterday, is that what this is related to?
`
`A.
`
`Q.
`
`That's exactly correct.
`
`Now, did you find, Dr. Almeroth, for all eight
`
`groups of iPods that the algorithms that the court
`
`defined as structure for elements 1D, 1E, and 1F of the
`
`'076 patent claim 1 are present either literally or
`
`equivalently in all eight groups of iPods?
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`A.
`
`Yes, sir, I did.
`
`13
`
`Q.
`
`And yesterday did you show an example or examples
`
`14
`
`from the Player.c type code for the classic 3?
`
`15
`
`A.
`
`Yes.
`
`That's correct.
`
`16
`
`Q.
`
`And did that include discussion of, for example,
`
`17
`
`the continuously reproducing algorithm in limitation 1F?
`
`18
`
`A.
`
`That's -- yes.
`
`19
`
`Q.
`
`So --
`
`20
`
`A.
`
`Sorry.
`
`Continuously reproducing was 1D.
`
`21
`
`Q.
`
`I'm sorry.
`
`I misspoke.
`
`Thank you, Dr. Almeroth.
`
`22
`
`Can you now, with reference to TPodMediaPlayer
`
`23
`
`type code, explain how you found some of these
`
`24
`
`algorithms?
`
`25
`
`A.
`
`Certainly.
`
`I used a very similar technique.
`
`I
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 24
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 25 of 373 PageID #: 41001
`Jury Trial, Volume 4
`
`went into the code.
`
`Certainly having learned what I
`
`learned from the Player.c, I could look for similar kinds
`
`of statements that would be used as a guide that would
`
`913
`
`show me what was happening.
`
`I also used as a guide, for example, the -- we
`
`talked about the interrogatories that were provided by
`
`Apple yesterday; and that provided information about
`
`where in that source code the functions related to
`
`continuously reproducing, skip, and then the back
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`commands.
`
`11
`
`Q.
`
`Can you actually show us some source code to show
`
`12
`
`us what you found?
`
`13
`
`A.
`
`Yes, I can.
`
`14
`
`Q.
`
`All right.
`
`Where should we start?
`
`15
`
`A.
`
`One of the things that I did -- and remember for
`
`16
`
`17
`
`18
`
`19
`
`continuously reproducing as well as for skip forward --
`
`was after both parts came to this PlayerNext -- and what
`
`PlayerNext had to do was to figure out what the next
`
`playable item was, and it would do that by calling a
`
`20
`
`function.
`
`That was the "while" loop and then the
`
`21
`
`comment.
`
`22
`
`One of the things that I did was to look for
`
`23
`
`that same kind of information in the source code.
`
`What
`
`24
`
`I've got then is for four different versions, starting at
`
`25
`
`the very beginning with the classic 3 going all of the
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 25
`
`
`
`Case 9:09-cv-00111-RC Document 537 Filed 09/13/11 Page 26 of 373 PageID #: 41002
`Jury Trial, Volume 4
`
`way to the nano 5, some information related to that.
`
`So, Mr. Holdreith, if you could put up on the
`
`screen, there is a Plaintiff's Exhibit 712; and that is
`
`914
`
`nano 5 source code.
`
`Q.
`
`I'm now showing you Plaintiff's Exhibit 712.
`
`Is
`
`that what you're referring to?
`
`A.
`
`Q.
`
`A.
`
`Yes, sir.
`
`Okay.
`
`If you go to page 31 in that document --
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Q.
`
`Dr. Almeroth, let me ask you a question.
`
`Are we
`
`11
`
`12
`
`going to be comparing different versions of the source
`
`code together on the screen now, or are we going to stick
`
`13
`
`to this one version?
`
`14
`
`A.
`
`Let me just point out some of the features of this
`
`15
`
`one version first.
`
`16
`
`Q.
`
`Okay.
`
`So, that was page 32?
`
`17
`
`A.
`
`Let's start with page 31.
`
`18
`
`Q.
`
`31.
`
`All right -- oops.
`
`I think I gave you 30.
`
`19
`
`I'll go forward one.
`
`20
`
`Okay.
`
`I'm showing you Plaintiff's Exhibit 712
`
`21
`
`at page 31.
`
`Just to be perfectly clear, this is which
`
`22
`
`source code?
`
`23
`
`A.
`
`This is for the nano 5.
`
`24
`
`Q.
`
`All right.
`
`25
`
`A.
`
`And if you pull up -- if you can expand on this
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1023 - Page 26
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