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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` - - -
`
` FUJITSU NETWORK COMMUNICATIONS, INC.
`
` Petitioner
`
` v.
`
` CAPELLA PHOTONICS, INC.
`
` Patent Owner
`
` - - -
`
` Inter Partes Review Case No. IPR2015-00726
`
` Patent No. RE42,368
`
` AND
`
` Inter Partes Review Case No. IPR2015-00727
`
` Patent No. RE42,678
`
` - - -
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` MILBANK, TWEED, HADLEY & MCCLOY LLP
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` 28 LIBERTY STREET
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` NEW YORK, NEW YORK 10005
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` DECEMBER 11, 2015
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` 8:48 A.M.
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` VIDEOTAPED DEPOSITION OF
`
` JOSEPH E. FORD, PH.D.
`
` REPORTED BY:
`
` DEBRA SAPIO LYONS, RDR, CRR, CCR, CPE
`
` JOB NO. PA 2199236
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`Capella 2026
`Fujitsu v. Capella
`IPR2015-00727
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` - - -
`
` FUJITSU NETWORK COMMUNICATIONS, INC.
`
` Petitioner
`
` v.
`
` CAPELLA PHOTONICS, INC.
`
` Patent Owner
`
` - - -
`
` Inter Partes Review Case No. IPR2015-00726
`
` Patent No. RE42,368
`
` AND
`
` Inter Partes Review Case No. IPR2015-00727
`
` Patent No. RE42,678
`
` - - -
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` MILBANK, TWEED, HADLEY & MCCLOY LLP
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`17
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` 28 LIBERTY STREET
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` NEW YORK, NEW YORK 10005
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`18
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` DECEMBER 11, 2015
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` 8:48 A.M.
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` VIDEOTAPED DEPOSITION OF
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` JOSEPH E. FORD, PH.D.
`
` REPORTED BY:
`
` DEBRA SAPIO LYONS, RDR, CRR, CCR, CPE
`
` JOB NO. PA 2199236
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`Capella 2026
`Fujitsu v. Capella
`IPR2015-00727
`
`
`
`Page 2
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` December 11, 2015
`
` Videotaped deposition of Joseph E.
`
` Ford, Ph.D., held at the offices of Milbank,
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` Tweed, Hadley & McCloy LLP, 28 Liberty Street,
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` New York, New York 10005, before Debra Sapio
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` Lyons, a Registered Diplomat Reporter, a
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` Certified Realtime Reporter, a Certified
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` LiveNote Reporter, an Approved Reporter of the
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` United States District Court for the Eastern
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` District of Pennsylvania, a Certified Court
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` Reporter of the State of New Jersey, a Notary
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` Public of the States of New Jersey, New York
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` and the Commonwealth of Pennsylvania.
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` Veritext Legal Solutions
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` Mid-Atlantic Region
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` 1250 Eye Street NW - Suite 1201
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` Washington, D.C. 20005
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`Page 3
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` APPEARANCES:
` MILBANK, TWEED, HADLEY & MCCLOY LLP
` BY: NATHANIEL T. BROWAND, ESQUIRE
` CHRISTOPHER E. CHALSEN, ESQUIRE
` CHRISTOPHER J. GASPAR, ESQUIRE
` 28 Liberty Street
` New York, New York 10005-1413
` 212.530.5096
` 212.530.5380
` 212.530.5019
` nbrowand@milbank.com
` cchalsen@milbank.com
` cgaspar@milbank.com
` Attorneys for Petitioner
`
` STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.
` BY: JONATHAN TUMINARO, PH.D., ESQUIRE
` TYLER J. DUTTON, ESQUIRE
` 1100 New York Avenue, NW
` Washington, DC 20005
` 202.772.8967
` 202.772.8982
` jtuminar@skgf.com
` tdutton@skgf.com
` Attorneys for Patent Owner
` ALSO PRESENT:
` DEVERELL WRITE, VIDEOGRAPHER
` VERITEXT
`
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`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`Page 4
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` JOSEPH E. FORD, Ph.D.
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` THE VIDEO TECHNICIAN: We on the
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` record. Please note that the
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` microphones are sensitive and may pick
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` up whispering and private conversations.
`
` My name is Deverell Write
`
` representing Veritext Legal Solutions.
`
` Today's date is December 11, 2015. The
`
` time on the video monitor is
`
` approximately 8:48 a.m.
`
` This deposition is being held at
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` offices of Milbank, Tweed located at
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` 28 Liberty Street, New York, New York;
`
` and is being taken for counsel for the
`
` patent owner.
`
` The caption of this case, Fujitsu
`
` Network Communication, Incorporated,
`
` versus Capella Photonics, Incorporated.
`
` This case is filed in the U.S. Patent
`
` and Trademark Office, Case Number
`
` IPR2015-00726 RE42,368 and IPR2015-00727
`
` RE42,678.
`
` The name of the Witness is
`
` Dr. Joseph Ford.
`
` At this time, will counsel please
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`Page 5
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` JOSEPH E. FORD, Ph.D.
`
` enter appearances.
`
` MR. TUMINARO: Jonathan Tuminaro
`
` from the law firm of Sterne, Kessler,
`
` Goldstein & Fox on behalf of the patent
`
` owner, Capella Photonics, Inc.
`
` MR. DUTTON: Tyler Dutton from
`
` the law firm Sterne, Kessler,
`
` Goldstein & Fox on behalf of the patent
`
` owner, Capella Photonics, Inc.
`
` MR. BROWAND: And Nathaniel
`
` Browand from Milbank, Tweed,
`
` Hadley & McCloy on behalf of Fujitsu
`
` Network Communications, Inc.
`
` THE VIDEO TECHNICIAN: Will the
`
` reporter please swear in the Witness.
`
` - - -
`
` JOSEPH E. FORD, Ph.D., having
`
` been first duly sworn, was examined and
`
` testified as follows:
`
` - - -
`
` E X A M I N A T I O N
`
` - - -
`
` BY MR. TUMINARO:
`
` Q. Good morning, sir. Please state
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`Page 6
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` JOSEPH E. FORD, Ph.D.
`
` your name.
`
` A. My name is Joseph Ford.
`
` Q. Your full name?
`
` A. Joseph E. Ford.
`
` Q. Okay. And where do you live?
`
` A. I live at 145 East Cliff Street
`
` in Solana Beach, California.
`
` Q. Okay. And what's your work
`
` address?
`
` A. I work at the University of
`
` California, San Diego, which is at 9500 Gilman
`
` Drive, La Jolla, California.
`
` Q. Okay. Have you ever had your
`
` deposition taken before?
`
` A. Yes, I have.
`
` Q. Okay. So I'm just going to go
`
` over a couple ground rules for this
`
` deposition.
`
` There's a court reporter here
`
` trying to take down our testimony, so I'll ask
`
` that you don't speak over me, and I'll try not
`
` to speak over you.
`
` Is that fair?
`
` A. Yes.
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`Page 7
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` JOSEPH E. FORD, Ph.D.
`
` Q. Okay. I'm going to try to ask
`
` clear questions, but if at any time you don't
`
` understand one of my questions, would you let
`
` me know?
`
` A. Yes.
`
` Q. Okay. But if you answer one of
`
` my questions, I'm going to assume that you
`
` understood it.
`
` Is that fair?
`
` A. Yes.
`
` Q. Okay. I'm going to take periodic
`
` breaks, probably about every hour or so, but
`
` if at any time you need a break, would you let
`
` me know?
`
` A. Yes.
`
` Q. One thing I'd ask, though, is if
`
` there's a pending question, please answer the
`
` question before we take a break.
`
` Is that fair?
`
` A. Yes.
`
` Q. Okay.
`
` A. Most -- I mean, depends how long
`
` it takes to answer a question.
`
` Q. Okay. How long it takes you to
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`Page 8
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` JOSEPH E. FORD, Ph.D.
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` answer the question, is that what you're
`
` saying?
`
` A. Well, if it took -- if it was a
`
` very extended question and the break was
`
` urgent, then I reserve the -- I reserve a
`
` biological event overriding urgency.
`
` Q. Got it. I understand. Try to
`
` keep that to a minimum.
`
` Is that fair?
`
` A. Of course.
`
` Q. Okay. You understand that you're
`
` testifying under oath here today?
`
` A. Yes.
`
` Q. Is there any reason you can't do
`
` that?
`
` A. No.
`
` Q. Okay. All right. So you -- you
`
` said you had your deposition taken before.
`
` A. Yes.
`
` Q. What were -- what was the
`
` circumstances of that previous case?
`
` A. I gave depositions as an expert
`
` witness in circumstances not too dissimilar
`
` from this.
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` JOSEPH E. FORD, Ph.D.
`
` Q. How many times have you had your
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`Page 9
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` deposition taken?
`
` A. Twice.
`
` Q. Twice, including this one?
`
` A. No, this would be the third.
`
` Q. This would be the third.
`
` Okay. And let's say the first
`
` deposition that you had given, when was that?
`
` A. I'm not sure exactly of the date,
`
` but it was a couple years ago.
`
` Q. Roughly 2011, 2012?
`
` A. Yes.
`
` Q. Okay. Do you remember what the
`
` case was?
`
` A. It was in -- regarding Cheetah
`
` Omni versus a number of telecommunications
`
` companies.
`
` Q. So it was a patent case?
`
` A. Yes.
`
` Q. And you acted as an expert in
`
` that case?
`
` A. Yes.
`
` Q. Okay. And you said you had given
`
` a second deposition.
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`Page 10
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` JOSEPH E. FORD, Ph.D.
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` A. Yes.
`
` Q. What was the context of that
`
` case?
`
` A. Also expert witness testimony for
`
` a -- for a patent infringement case.
`
` Q. Okay. Roughly when was that?
`
` A. A year and -- two years ago,
`
` something like that. A year and a half ago.
`
` Q. Okay. Have you ever given --
`
` apart from those two depositions, have you
`
` ever given testimony under oath?
`
` A. I gave testimony quite some time
`
` ago, more than ten years ago, in a private
`
` arbitration. I'm not sure whether that counts
`
` as under oath or not.
`
` Q. Was that in relation to a
`
` technical matter or --
`
` A. Yes.
`
` Q. -- something else?
`
` A. Yes.
`
` Q. A technical matter?
`
` A. Yes.
`
` Q. A patent matter?
`
` A. Not -- well, indirectly.
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`Page 11
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` JOSEPH E. FORD, Ph.D.
`
` Q. Okay. Were you acting as an
`
` expert in that case?
`
` A. Yes.
`
` Q. Did -- on behalf of the patent
`
` owner or someone else?
`
` A. It was --
`
` MR. BROWAND: Objection to the
`
` form of the question.
`
` THE WITNESS: It was a business
`
` dispute that revolved around a patent.
`
` BY MR. TUMINARO:
`
` Q. Okay. And which side of the
`
` dispute were you on?
`
` A. The -- I guess the person
`
` bringing suit. The plaintiff, would you say?
`
` Q. Okay. All right. That's fair.
`
` Do you know why you're here
`
` today?
`
` MR. BROWAND: Objection to the
`
` form of the question.
`
` THE WITNESS: To --
`
` BY MR. TUMINARO:
`
` Q. It -- well -- so just so it's
`
` clear, he -- he may object at some times. You
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`Page 12
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` JOSEPH E. FORD, Ph.D.
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` still have to answer the question, unless he
`
` specifically instructs you not to answer.
`
` So do you know why you're here
`
` today?
`
` A. I understand --
`
` MR. BROWAND: Same objection.
`
` THE WITNESS: I understand that
`
` I'm here to give testimony --
`
` MR. TUMINARO: Okay.
`
` THE WITNESS: -- about the
`
` patents at -- at -- in dispute.
`
` BY MR. TUMINARO:
`
` Q. Okay. And you submitted a
`
` Declaration in this case?
`
` A. Yes.
`
` MR. TUMINARO: Have this one
`
` marked as 1 and this one marked as 2.
`
` (Exhibit Ford-1, Declaration of
`
` Joseph E. Ford, Ph.D. in Inter Partes
`
` Review Case No. Case Number
`
` IPR2015-00726 RE42,368, is marked for
`
` identification.)
`
` MR. TUMINARO: It's a long reach.
`
` (Exhibit Ford-2, Declaration of
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`Page 13
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` JOSEPH E. FORD, Ph.D.
`
` Joseph E. Ford, Ph.D. in Inter Partes
`
` Review Case No. Case Number
`
` IPR2015-00726 RE42,368, is marked for
`
` identification.)
`
` BY MR. TUMINARO:
`
` Q. Sir, you've been handed what's
`
` been marked as Exhibit 1 for identification
`
` purposes.
`
` Do you recognize this document?
`
` A. Yes.
`
` Q. And what is it?
`
` A. It is my Declaration for the '368
`
` Patent, on the IPR on the '368 Patent.
`
` Q. Okay. And if you go to the last
`
` page, it's Page 111.
`
` A. (The Witness Complies With the
`
` Request of Counsel.)
`
` Q. Is that your signature at the
`
` bottom of the page?
`
` A. Yes.
`
` Q. And you signed this document,
`
` Exhibit 1 on November 11th, 2015?
`
` A. Yes.
`
` Q. Okay. Is there anything that you
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`Page 14
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` JOSEPH E. FORD, Ph.D.
`
` would like to add to your Declaration that's
`
` Exhibit 1?
`
` MR. BROWAND: Objection to the
`
` form of the question.
`
` THE WITNESS: No.
`
` BY MR. TUMINARO:
`
` Q. Is there anything that you would
`
` like to delete from Exhibit 1?
`
` MR. BROWAND: Same objection.
`
` THE WITNESS: No.
`
` BY MR. TUMINARO:
`
` Q. Are there any corrections that
`
` you'd like to make at all to Exhibit 1?
`
` A. No.
`
` Q. Okay. So this is a complete and
`
` accurate representation of your opinions?
`
` MR. BROWAND: Objection to the
`
` form, Counsel.
`
` THE WITNESS: Yes.
`
` BY MR. TUMINARO:
`
` Q. Okay. And if -- also in front of
`
` you is Exhibit 2.
`
` Do you recognize this document?
`
` A. Yes.
`
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`Page 15
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` JOSEPH E. FORD, Ph.D.
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` Q. What is it?
`
` A. It is my Declaration in regards
`
` to the IPR of the Patent '368.
`
` Q. '678, sir?
`
` A. My Exhibit 2 is '368 -- wait.
`
` Oh, it says '368.
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` MR. TUMINARO: I apologize. It
`
` got marked wrong.
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` MR. BROWAND: Yeah, you want to
`
` go off the record for a second?
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` MR. TUMINARO: Yeah, sure.
`
` THE VIDEO TECHNICIAN: The time
`
` on the video mon --
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` THE WITNESS: This one must be
`
` the '678 (indicating).
`
` THE VIDEO TECHNICIAN: I'm sorry.
`
` MR. TUMINARO: Go off the record.
`
` THE VIDEO TECHNICIAN: The time
`
` on the video monitor is 8:57 a.m.
`
` We off the record.
`
` (Discussion is held off the
`
` record.)
`
` (Exhibit Ford-2 remarked.)
`
` (Exhibit Ford-2, Declaration of
`
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`Page 16
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` JOSEPH E. FORD, Ph.D.
`
` Joseph E. Ford, Ph.D. in Inter Partes
`
` Review Case No. Case Number
`
` IPR2015-00727 RE42,678, is marked for
`
` identification.)
`
` THE VIDEO TECHNICIAN: We are
`
` back on record.
`
` The time on the video monitor is
`
` 8:57 a.m.
`
` BY MR. TUMINARO:
`
` Q. Welcome back, sir. You have now
`
` what's in front of you as Exhibit 2 for
`
` identification purposes.
`
` Do you recognize this document?
`
` A. Yes.
`
` Q. And --
`
` MR. BROWAND: And so just to
`
` clarify for the record, Counsel, we went
`
` off the record because what had been
`
` handed -- what -- as Exhibit 2 was a
`
` apparent duplicate of Exhibit 1.
`
` We went off the record to correct
`
` what had been improperly marked as
`
` Exhibit 2 to the current, now correct --
`
` correctly marked Exhibit 2.
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` JOSEPH E. FORD, Ph.D.
`
` MR. TUMINARO: Thank you. I
`
` appreciate that, Counsel.
`
` BY MR. TUMINARO:
`
` Q. So Exhibit 2 now is your
`
` Declaration with respect to U.S. Patent Number
`
` RE42,678; is that right?
`
` A. That's right.
`
` Q. And I think you referred to
`
` this -- this patent as the '678 Patent; is
`
` that right?
`
` A. Yes.
`
` Q. Okay. So if I call it the "'678
`
` Patent" during the day today, you'll
`
` understand what I mean?
`
` A. Yes.
`
` Q. Okay. All right. And if we look
`
` at Exhibit 2, the last page, Page 115, is that
`
` your signature --
`
` A. Yes.
`
` Q. -- on Page 115?
`
` And you signed Exhibit 2 on
`
` November 11th, 2015?
`
` A. Yes.
`
` Q. Okay. And, again, is there
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` JOSEPH E. FORD, Ph.D.
`
` anything that you would like to add to
`
` Exhibit 2?
`
` MR. BROWAND: Objection to the
`
` form.
`
` THE WITNESS: No.
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` BY MR. TUMINARO:
`
` Q. Is there anything that you would
`
` like to delete from Exhibit 2?
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` MR. BROWAND: Same objection,
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` Counsel.
`
` THE WITNESS: No.
`
` BY MR. TUMINARO:
`
` Q. Are there any corrections that
`
` you'd like to make to Exhibit 2 at all?
`
` A. No.
`
` Q. So Exhibit 2 is complete and
`
` accurate --
`
` MR. BROWAND: Objection to the
`
` form.
`
` BY MR. TUMINARO:
`
` Q. -- representation of your
`
` opinions?
`
` MR. BROWAND: Objection to the
`
` form.
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` JOSEPH E. FORD, Ph.D.
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` THE WITNESS: Yes.
`
` BY MR. TUMINARO:
`
` Q. Okay. Well, Exhibit 2 is a
`
` complete and accurate representation of your
`
` opinions with respect to the '678 Patent?
`
` A. That's correct.
`
` Q. Okay. Just to be clear, back on
`
` Exhibit 1, Exhibit 1 is a complete and
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` accurate representation of your -- your
`
` opinions with respect to the '368 Patent?
`
` A. That's correct.
`
` Q. Okay. Yeah. All right. If you
`
` would turn with me to Exhibit -- I mean to
`
` Page 4 of Exhibit 1, please.
`
` A. (The Witness Complies With the
`
` Request of Counsel.)
`
` Q. And starting on Page 4 there's a
`
` table that spans onto Page 6 that purports to
`
` list the materials that you considered in
`
` forming your opinion; is that right?
`
` A. Yes, that's right.
`
` Q. Okay. One thing I --
`
` Dr. Drabik's Declaration is not listed in
`
` these materials considered.
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` JOSEPH E. FORD, Ph.D.
`
` Did you review Dr. Drabik's
`
` Declaration in forming your opinions expressed
`
` in Exhibit 1?
`
` MR. BROWAND: Objection to the
`
` form.
`
` THE WITNESS: Yes.
`
` BY MR. TUMINARO:
`
` Q. Okay. Is there anything else
`
` that you also reviewed that's not listed in
`
` your materials considered when forming your
`
` opinions that are expressed in Exhibit 1?
`
` A. Well, there's a considerable
`
` amount of material that I've reviewed over the
`
` course of my career, including my education
`
` and practice in the field of MEMS, fiber optic
`
` switch components. So, I mean, it would be
`
` impractical to list everything that I've
`
` reviewed and everything I've considered in
`
` forming an opinion.
`
` Q. Okay. So let's try to narrow it
`
` down. You understand that Fujitsu submitted a
`
` Petition in the IPR that ends in '726?
`
` A. Yes.
`
` MR. BROWAND: Objection to the
`
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` JOSEPH E. FORD, Ph.D.
`
` form.
`
` THE WITNESS: I'm sorry. You
`
` said that Fujitsu submitted an opinion?
`
` BY MR. TUMINARO:
`
` Q. They -- you understand that in
`
` the 726 IPR, Fujitsu submitted a Petition for
`
` inter partes review of the '368 Patent?
`
` A. Yes.
`
` MR. BROWAND: Objection to the
`
` form.
`
` BY MR. TUMINARO:
`
` Q. You understand that?
`
` A. Yes.
`
` Q. Have you reviewed that Petition?
`
` A. Yes.
`
` Q. Okay. That's not listed in your
`
` materials considered; right?
`
` A. Well, these are the materials
`
` that are listed with reference to the creation
`
` of this Declaration.
`
` MR. BROWAND: Yeah, and I'll
`
` lodge an objection to the previous
`
` question.
`
` THE WITNESS: And it's not an
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` JOSEPH E. FORD, Ph.D.
`
` exhaustive list. It just says that I've
`
` considered the following. It doesn't
`
` say that I've considered only the
`
` following. That's Page 4.
`
` BY MR. TUMINARO:
`
` Q. Would you look at Paragraph --
`
` strike that.
`
` So just so I understand your
`
` testimony, you're saying what's listed in your
`
` materials considered is not an exhaustive list
`
` of the specific documents that you reviewed in
`
` forming your opinions expressed in Exhibit 1?
`
` MR. BROWAND: Objection to the
`
` form, Counsel.
`
` THE WITNESS: Well, I'm -- I'm
`
` not sure what you mean by "reviewed,"
`
` but that I have read, including, you
`
` know, various things that I've -- I've
`
` done over a long period of time, I've
`
` considered lots of documents, and I read
`
` both of the documents you referred to.
`
` BY MR. TUMINARO:
`
` Q. Okay. If you look at Paragraph 6
`
` of your Declaration.
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` JOSEPH E. FORD, Ph.D.
`
` A. (The Witness Complies With the
`
` Request of Counsel.)
`
` Q. Are you there? Are you at
`
` Paragraph 6, sir?
`
` A. Yes.
`
` Q. Okay. And I'll read it for the
`
` record. "My opinions expressed in this
`
` Declaration rely to a great extent on my own
`
` personal knowledge and recollection."
`
` Do you see that?
`
` A. Yes.
`
` Q. And that's consistent with what
`
` you said earlier, that you rely on your
`
` experience in this case; is that right?
`
` A. Yes.
`
` Q. Okay. And Paragraph 6 continues.
`
` It says, "However, to the extent I considered
`
` specific documents or data in formulating the
`
` opinions expressed in this Declaration,
`
` such -- such items are expressly referred to
`
` in this Declaration."
`
` Do you see that?
`
` A. Yes.
`
` Q. Did you expressly refer to the
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` JOSEPH E. FORD, Ph.D.
`
` Drabik Declaration?
`
` MR. BROWAND: Objection to the
`
` form, Counsel.
`
` THE WITNESS: So it's clear that
`
` this document substantially reiterates
`
` the Drabik Declaration, and I think that
`
` it's obvious that -- that that is the
`
` relationship of it.
`
` So if you were in any doubt as to
`
` whether that was the case, then I can
`
` affirm that I did read the Drabik
`
` Declaration, and I did read the Petition
`
` that Fujitsu submitted.
`
` BY MR. TUMINARO:
`
` Q. Okay. How about, do you
`
` understand that Capella, the patent owner,
`
` submitted a Preliminary Patent Owner Response
`
` in this 726 IPR?
`
` MR. BROWAND: Objection to the
`
` form.
`
` THE WITNESS: Yes.
`
` BY MR. TUMINARO:
`
` Q. Did you review that Patent Owner
`
` Preliminary Response in preparing your
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` JOSEPH E. FORD, Ph.D.
`
` opinions that are expressed in Exhibit 1?
`
` MR. BROWAND: Objection to the
`
` form, Counsel.
`
` THE WITNESS: I have reviewed it.
`
` BY MR. TUMINARO:
`
` Q. In forming your opinions
`
` expressed in Exhibit 1?
`
` A. I don't -- I don't think that I
`
` considered it relevant --
`
` Q. When did you review that
`
` document?
`
` A. -- to the opinions.
`
` I read the Declaration of Tim
`
` Drabik first.
`
` Q. When did you review the Patent
`
` Owner Preliminary Response?
`
` A. I don't know exactly the date.
`
` Q. Was it before November 11th when
`
` you signed Exhibit 1?
`
` MR. BROWAND: Objection to the
`
` form, Counsel.
`
` And just caution the Witness not
`
` to reveal the substance of any
`
` communications with counsel. To the
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` JOSEPH E. FORD, Ph.D.
`
` extent you can answer the question
`
` without revealing the substance of
`
` communications with counsel, you may do
`
` so.
`
` THE WITNESS: I'm not sure.
`
` You -- you asked whether I -- I read it
`
` before I signed this, and I'm not -- I'm
`
` not certain.
`
` I read the Declaration that Tim
`
` Drabik had prepared. I read the
`
` patents. I looked at this material. I
`
` was concentrating on the facts of the
`
` matter.
`
` I'm not a legal expert. I'm a
`
` technical expert. So I'm paying
`
` somewhat less attention to the -- to the
`
` legal dispute, and more attention to the
`
` technical stuff.
`
` BY MR. TUMINARO:
`
` Q. Sure. All right. Are you aware
`
` that after Capella, the patent owner,
`
` submitted that Patent Owner Preliminary
`
` Response the Board issued an institution
`
` decision?
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` JOSEPH E. FORD, Ph.D.
`
` A. Yes.
`
` Q. Did you review the institution
`
` decision?
`
` A. I briefly reviewed it.
`
` Q. When?
`
` A. I'm not sure of the exact date.
`
` MR. BROWAND: Objection to the
`
` form.
`
` THE WITNESS: But I -- I -- I --
`
` I think, again, I was primarily
`
` concentrating on the technical aspects
`
` of this.
`
` The only aspect of the -- of the
`
` decision that was of significant
`
` relevance to me in reviewing the case
`
` materials, and deciding how to allocate
`
` my time and what to concentrate on was,
`
` I was -- I'm assuming that it's
`
` appropriate for me to say this, so
`
` object if it's -- if it's inappropriate,
`
` but I was told that the Court had
`
` decided that the patents and the --
`
` MR. BROWAND: Well, we won't get
`
` into what you were told, but you can
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` JOSEPH E. FORD, Ph.D.
`
` talk about your understanding. So --
`
` MR. TUMINARO: To the extent that
`
` he relied on this in forming his
`
` opinion, I think we're entitled to know
`
` what he was told.
`
` MR. BROWAND: Well, I'm going to
`
` instruct the Witness not to answer with
`
` regard to the substance of
`
` communications between Dr. Ford and --
`
` and counsel.
`
` If he has an understanding of the
`
` institution decision, he may provide
`
` that understanding.
`
` THE WITNESS: Okay. So my
`
` understanding of the institution
`
` decision was that the -- that the three
`
` documents that would form the basis of
`
` the -- of the decision or the dispute
`
` were Bouevitch, Carr, and Sparks, and so
`
` I was paying closer attention to them.
`
` I was -- I was interested to read
`
` the other documents, I'm familiar with
`
` Smith and Tew, but I was concentrating
`
` on -- on Bouevitch, Carr, and Sparks.
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`Page 29
`
` JOSEPH E. FORD, Ph.D.
`
` And the reason I was concentrating on
`
` them was, I was -- I understood that
`
` those were the matters of current
`
` interest.
`
` BY MR. TUMINARO:
`
` Q. Got it. If you look at your
`
` Declaration at the Table of Contents, you --
`
` for example, Roman Numeral II -- Page Number
`
` Roman Numeral II.
`
` A. Yes.
`
` Q. There is the -- there is a
`
` section "Analysis of Invalidity."
`
` Do you see that toward the top of
`
` the page?
`
` A. Where it says "The '368 Patent"?
`
` Q. No. On Roman Numeral II, sir,
`
` the next page.
`
` A. I'm --
`
` MR. BROWAND: Yeah, I'm not sure
`
` II is -- in Roman is 2. So that's the
`
` '368 Patent.
`
`
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