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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`WHATSAPP, INC. and FACEBOOK, INC., )
` )
` Petitioner, )
` )
` vs. ) IPR2015-00740
` )
`TRIPLAY, INC., )
` )
` Patent Owner. )
`____________________________________ )
`________________________________________________________
`
` DEPOSITION OF DAVID KLAUSNER
` Palo Alto, CA
`
` Wednesday, November 4, 2015
` Volume I
`
`Reported by: SUSAN F. MAGEE, RPR, CCRR, CLR
`CSR No. 11661
`
`Pages 1-87
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`TriPlay's Exhibit 2009
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`Page 4
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`1 APPEARANCES (continued):
`2 For the Patent Owner:
`3 GREENBERG TRAURIG LLP
`4 DOUGLAS R. WEIDER, ESQ.
`5 500 Campus Drive
`6 Florham Park, NJ 07932
`7 (973) 360-7900
`8 weiderd@gtlaw.com
`9
`10 Also Present:
`11 RAJEEV SURATI
`12 --o0o--
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
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`25
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`1 UNITED STATES PATENT AND TRADEMARK OFFICE
`2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`3 4 5
`
`WHATSAPP, INC. and FACEBOOK, INC., )
` )
`6 Petitioner, )
` )
`7 vs. ) IPR2015-00740
` )
`8 TRIPLAY, INC., )
` )
`9 Patent Owner. )
`____________________________________ )
`10 ________________________________________________________
`11
`12 DEPOSITION OF DAVID KLAUSNER taken on behalf of
`13 Patent Owner at COOLEY LLP, 3175 Hanover
`14 Street, Palo Alto, CA 94304-1130, beginning at
`15 9:09 a.m. and ending at 1:01 p.m. on Wednesday,
`16 November 4, 2015, before Susan F. Magee, RPR,
`17 CCRR, CLR, Certified Shorthand Reporter
`18 No. 11661.
`19
`20
`21
`22
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`24
`25
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`Page 3
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`Page 5
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`1 I N D E X
`2 DEPOSITION OF DAVID KLAUSNER
`3 Volume I
`4 EXAMINATION BY PAGE
`5 BY MR. SCHINDLER 7
`6 --o0o--
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`7 8 9
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`10
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`14
`15
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`24
`25
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`1 APPEARANCES:
`2 For the Petitioner:
`3 COOLEY LLP
`4 REUBEN H. CHEN, ESQ.
`5 3175 Hanover Street
`6 Palo Alto, CA 94304-1130
`7 (650) 843-5480
`8 rchen@cooley.com
`9
`10 LATHAM & WATKINS LLP
`11 RICHARD G. FRENKEL, ESQ.
`12 140 Scott Drive
`13 Menlo Park, CA 94025
`14 (650) 463-3080
`15 rick.frenkel@lw.com
`16
`17 For the Patent Owner:
`18 GREENBERG TRAURIG LLP
`19 BARRY J. SCHINDLER, ESQ.
`20 500 Campus Drive
`21 Florham Park, NJ 07932
`22 (973) 360-7944
`23 schindlerb@gtlaw.com
`24 //
`25
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`Page 6
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`Page 8
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`1 E X H I B I T S
`2 NUMBER DESCRIPTION PAGE
`3 Exhibit 1 US Patent No. 8,332,475, WhatsApp 9
`4 Inc.'s Exhibit 1001 (29 pages)
`5 Exhibit 2 Declaration of David Klausner, 9
`6 WhatsApp Inc.'s Exhibit 1002 (102
`7 pages)
`8 Exhibit 3 Supplemental Declaration of David 9
`9 Klausner (6 pages)
`10 Exhibit 4 US Patent No. 2003/0236892, WhatsApp 9
`11 Inc.'s Exhibit 1003 (12 pages)
`12 Exhibit 5 US Patent No. 6,167,441, WhatsApp 10
`13 Inc.'s Exhibit 1007 (12 pages)
`14 Exhibit 6 US Patent No. 6,928, 612, WhatsApp 10
`15 Inc.'s Exhibit 1004 (15 pages)
`16 Exhibit 7 "More HTML" for Dummies, 2nd Edition 11
`17 Excerpt, WhatsApp, Inc.'s Corrected
`18 Exhibit 1005 (35 pages)
`19 --o0o--
`20
`21
`22
`23
`24
`25
`
`1 A. Yes.
`2 Q. Okay. So you're pretty familiar with the
`3 deposition procedure?
`4 A. I guess so.
`5 Q. Okay. First thing in a deposition procedure,
`6 as you know, the way this will work is I will first ask
`7 a question. Wait for me to finish so the court reporter
`8 can get it down, and then you can answer.
`9 Do I have an agreement with that?
`10 A. Yes.
`11 Q. Second is if you don't understand a question, I
`12 expect you to ask me; otherwise, if you answer, I can
`13 assume you understood my question.
`14 Can I have that agreement?
`15 A. Yes.
`16 Q. Third, any time you want a break, please ask
`17 me. This is not, as I said, a session to torture you.
`18 This is a session to try to get to the truth.
`19 Do you understand that?
`20 A. Yes.
`21 Q. And finally is are you on any medication, or is
`22 there any reason why you cannot answer my questions
`23 truthfully today?
`24 A. No.
`25 MR. SCHINDLER: Okay. Thank you.
`
`Page 7
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`Page 9
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`1 So I have marked, to make our life easy, a
`2 series of exhibits that I will be using today, and I'm
`3 going to tell the court reporter what these are first,
`4 and then I'm going to hand the stack to you.
`5 (Exhibit 1 was marked for identification by the
`6 court reporter and is attached hereto.)
`7 MR. SCHINDLER: So the first exhibit is
`8 Exhibit 1, and we've marked it D. Klausner Exhibit 1,
`9 and it's Patent U.S. 8,332,475 and -- which I will refer
`10 to today as the '475 patent.
`11 (Exhibit 2 was marked for identification by the
`12 court reporter and is attached hereto.)
`13 MR. SCHINDLER: Exhibit 2 is a declaration of
`14 David Klausner, and that is dated February 14, 2015.
`15 (Exhibit 3 was marked for identification by the
`16 court reporter and is attached hereto.)
`17 MR. SCHINDLER: The third exhibit that's been
`18 marked is supplemental declaration of David Klausner,
`19 and that is dated September 21st, 2015.
`20 (Exhibit 4 was marked for identification by the
`21 court reporter and is attached hereto.)
`22 MR. SCHINDLER: The fourth exhibit is U.S.
`23 2003/0236892 which I will be referring as Coulombe,
`24 patent application of Coulombe. Coulombe is
`25 C-o-u-l-o-m-b-e.
`
`1 Palo Alto, CA, Wednesday November 4, 2015
`2 9:09 a.m.
`
`3 4
`
` DAVID KLAUSNER,
`5 having been administered an oath, was examined and
`6 testified as follows:
`
` EXAMINATION BY MR. SCHINDLER
`
`7 8
`
`9
`10 Q. Good morning, Mr. Klausner.
`11 A. Good morning.
`12 Q. Mr. Klausner, my name is Barry Schindler. I'm
`13 from the firm of Greenberg Traurig, and I represent
`14 TriPlay Communications, the patentee in this IPR.
`15 With me is Doug Weider, and he's also a member
`16 of the firm. And with me also is Raj --
`17 Your last name, please.
`18 MR. SURATI: Surati.
`19 MR. SCHINDLER: Yes.
`20 BY MR. SCHINDLER: Q. So Mr. Klausner, let me
`21 ask you, have you had your deposition taken before?
`22 A. Yes.
`23 Q. More than once?
`24 A. Yes.
`25 Q. More than ten times?
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`1 (Exhibit 5 was marked for identification by the
`2 court reporter and is attached hereto.)
`3 MR. SCHINDLER: The fifth exhibit is U.S.
`4 Patent 6,167,441, and I will also -- and that's
`5 Exhibit 5. And I will be referring to it as the Himmel
`6 patent.
`7 MR. CHEN: Counsel, I don't think I have a copy
`8 of Exhibit 5.
`9 MR. SCHINDLER: You don't have Himmel?
`10 MR. CHEN: Yes. Or beyond.
`11 MR. SCHINDLER: Oh. Now you will have the
`12 patent. Sorry.
`13 MR. CHEN: Okay.
`14 MR. SCHINDLER: And also you don't have a copy
`15 of this here.
`16 MR. CHEN: Okay.
`17 (Exhibit 6 was marked for identification by the
`18 court reporter and is attached hereto.)
`19 MR. SCHINDLER: The next exhibit is Exhibit 6,
`20 and that's U.S. Patent 6,928,617, and I'll be referring
`21 to that as the Druyan or "Druyan" patent. "Druyan" is
`22 D-r-u-y-a-n.
`23 MR. CHEN: Counsel, I think I don't have that
`24 one as well.
`25 MR. SCHINDLER: You don't have Druyan?
`
`Page 12
`1 look at each of the exhibits I marked, and the question
`2 for each exhibit will be, are you familiar with that
`3 exhibit?
`4 So Exhibit 1 which is what we referred to as
`5 the '475 patent -- are you okay with me referring to it
`6 as the '475 patent?
`7 A. Yes.
`8 Q. You've seen '475 patent before?
`9 A. Yes.
`10 Q. And have reviewed '475 patent before?
`11 A. I have.
`12 Q. Okay. The next exhibit is -- I will refer to
`13 as the Klausner declaration.
`14 Is that a document that you wrote?
`15 A. Yes.
`16 Q. And I gather you're familiar and have reviewed
`17 that document?
`18 A. Yes.
`19 Q. I will show you what's been marked as Exhibit 3
`20 which is a Klausner supplemental declaration.
`21 Did you write that declaration?
`22 A. Yes.
`23 Q. So again, I assume that you're familiar and
`24 have reviewed that document?
`25 A. Yes.
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`Page 11
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`Page 13
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`1 MR. CHEN: Yeah.
`2 MR. SCHINDLER: Oh. I'm holding out on you.
`3 (Exhibit 7 was marked for identification by the
`4 court reporter and is attached hereto.)
`5 MR. SCHINDLER: And the last exhibit is
`6 Exhibit 7, and that's -- title is "More HTML for
`7 Dummies," second edition, and I will be referring to
`8 that as the Tittel document or the Tittel exhibit.
`9 Tittel is T-i-t-e-l [sic].
`10 And Counsel, this is, I believe, the exhibit
`11 with the additional pages.
`12 MR. CHEN: Correct. Additional page.
`13 MR. SCHINDLER: Yes.
`14 BY MR. SCHINDLER: Q. And Mr. Klausner, I'm
`15 going to hand you the exhibit, and I want you to confirm
`16 that.
`17 So I'll hand you actually this doc. Is that
`18 right?
`19 MR. CHEN: That's correct, yes. It has the
`20 additional page 262.
`21 BY MR. SCHINDLER: Q. I apologize. I have to
`22 walk over to you. I don't mean -- if you sit down, I'll
`23 ask you some questions about that. There is an exhibit
`24 missing in your thing, so we'll get there.
`25 So Mr. Klausner, I would like you to take a
`
`1 Q. Exhibit 4 I'm going to refer to as the
`2 Coulombe, period.
`3 Are you comfortable with me referring to it as
`4 Coulombe?
`5 A. Yes.
`6 Q. Okay. Have you seen Coulombe before?
`7 A. Yes.
`8 Q. Have you reviewed Coulombe?
`9 A. Yes.
`10 Q. Exhibit 5 I will refer to as the Himmel
`11 exhibit.
`12 Are you okay with me referring to that as the
`13 Himmel document?
`14 A. Yes.
`15 Q. And again, have you seen this document and
`16 reviewed it?
`17 A. I have.
`18 Q. Exhibit 6 is what I refer to as Druyan.
`19 I may destroy the name, but are you comfortable
`20 with me referring to that exhibit which is Exhibit 6 as
`21 Druyan?
`22 A. Yes.
`23 Q. Have you seen and reviewed that document?
`24 A. Yes.
`25 Q. The last exhibit is referred to -- I'm going to
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`1 refer to because if you go to the second page is
`2 referred to as the Tittel document.
`3 Are you okay with me referring to that as the
`4 Tittel document?
`5 A. I am.
`6 Q. And have you seen and reviewed that document?
`7 A. Yes.
`8 Q. Thank you. What I'd like you to do is go to
`9 what I call the Klausner declaration which is Exhibit 2.
`10 A. I have it.
`11 Q. And what I'd like you to do is go to paragraph
`12 64. It's page 40 of your declaration.
`13 A. I have it.
`14 Q. Okay. And when I say 65, actually I'm
`15 referring to the section called "c" and below that.
`16 Do you have that section "c" that says -- that
`17 quotes a claim limitation?
`18 A. Yes.
`19 Q. And what I would like to do is talk to you a
`20 little bit about this section from 65 essentially
`21 through what I would refer to as 70. So before I ask
`22 you some questions, I'd like you to just make sure you
`23 are familiar with 65 through 70.
`24 A. Please proceed.
`25 Q. Okay. And one last thing. Can you take a look
`
`1 Q. Okay. So you refer to those.
`2 So you have given an opinion as to those
`3 sections in Coulombe?
`4 A. Yes.
`5 Q. So let's go to Coulombe. Coulombe is
`6 Exhibit 4.
`7 A. I have Coulombe.
`8 Q. Okay. Go to paragraph 86. It should be page 5
`9 of Coulombe.
`10 A. I have it.
`11 Q. You have paragraph 86 in front of you? Could
`12 you read paragraph 86 to yourself first, and then I'll
`13 have some questions.
`14 A. I've read it.
`15 Q. Okay. So you see the sentence that says --
`16 it's the last sentence on 86 that says, "Adaptation
`17 operations performed are usually limited to the message
`18 body and include the following."
`19 Do you see that?
`20 A. Yes.
`21 Q. So my question is, when it says "include the
`22 following," is this -- and it then lists five different
`23 what it calls "message body include the following," is
`24 there -- could there be other capabilities other than
`25 these five that are listed?
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`Page 15
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`Page 17
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`1 at paragraph 64 which is on page 38, please. Also
`2 familiarize yourself with that.
`3 A. Yes.
`4 Q. Okay. Those sections refer to -- in the
`5 Coulombe from Exhibits 86 through 90.
`6 Would you agree with that at least? And
`7 specifically if I refer you to page 40, you cite
`8 paragraphs 86, 87, 89.
`9 And then if you go through the paragraphs I had
`10 you do, you're referring to paragraphs 90. You refer to
`11 various other paragraphs in Coulombe in that area;
`12 correct?
`13 A. I don't think so.
`14 Q. You refer to 86; correct? Page 40, you refer
`15 to paragraph 86?
`16 A. When you say these sections, you mean --
`17 Q. I'm going to go -- so on page 40, do you in
`18 your declaration refer to paragraph 86?
`19 A. Correct.
`20 Q. Do you refer to paragraph 87?
`21 A. Correct.
`22 Q. Do you refer to paragraph 89?
`23 A. Yes.
`24 Q. Do you refer to paragraph 90?
`25 A. In my paragraph 66, yes.
`
`1 MR. CHEN: Objection. Form.
`2 THE WITNESS: The language used is the word
`3 "include" which implies that there may be others.
`4 BY MR. SCHINDLER: Q. Okay. So let me --
`5 let's stay in that paragraph and -- in 86. And it talks
`6 about in the second sentence where it's talking about
`7 this message adaptation engine.
`8 And are you familiar with the message
`9 adaptation engine?
`10 A. Yes.
`11 Q. And in your declaration if you turn to -- turn
`12 to paragraph 60, page 35.
`13 A. I have it.
`14 Q. You state that, "The 'media block' to Coulombe
`15 corresponds to the 'Message Adaptation Engine' 20, also
`16 shown in Figure 1 above as being in communication with
`17 the SIP Proxy/Registrar 12 ('access block')"?
`18 Do you see that?
`19 A. Yes.
`20 Q. So is it your testimony that the media block
`21 corresponds to Message Adaptation Engine?
`22 A. Yes.
`23 Q. Okay. So go back to paragraph 86.
`24 A. I have it.
`25 Q. In the paragraph that -- the sentence that
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`1 begins, "It determines the characteristics of the
`2 original message and compares them to the recipient's
`3 terminal capabilities or user preferences," do you see
`4 that sentence?
`5 A. Yes.
`6 Q. Did I read that correctly?
`7 A. Yes.
`8 Q. So when it says it determines the
`9 characteristics of the original message, what does that
`10 mean?
`11 A. From the teachings of Coulombe it includes the
`12 format or could include the format, the layout, the
`13 media and which size, quality, colors inside the image
`14 in GIFs, the presentation, the layout, the orientation.
`15 Generally the things described in, at least, paragraphs
`16 87 through 91 of Coulombe.
`17 Q. You said "at least." And other characteristics
`18 also it could include?
`19 A. Yes.
`20 Q. So then I'd like to direct you back to your
`21 declaration.
`22 A. I have it.
`23 Q. Paragraph 61, that's page 36. Can you read
`24 paragraph 61 to yourself.
`25 A. I have read it.
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`Page 20
`1 A. There are boxes, Items 32 and 60, along with 34
`2 that are involved in receiving registration information
`3 from the receiving device to determine its
`4 characteristics and selects those characteristics
`5 returned by the receiving device as a result of the
`6 registration process.
`7 In addition, there is also the Message
`8 Adaptation Engine Control 64 of Item 20.
`9 Q. In Figure 3?
`10 A. Also in Figure 3 --
`11 Q. Okay.
`12 A. -- that selects those characteristics of the
`13 receiving device and forwards them on to Item 68 within
`14 Item 20 for the purposes of performing the -- comparing
`15 and determining.
`16 Q. Okay.
`17 A. That ends my answer.
`18 Q. So when you refer to -- in this Figure 3 -- and
`19 you discussed each one of those. Where in Coulombe in
`20 the text does it disclose that it's doing a selection
`21 process? I heard that -- I will agree that Coulombe
`22 talks about determining or determines, but where does
`23 Coulombe talk about selecting in -- when it's talking
`24 about Message Adaptation Engine?
`25 A. An example would be in Coulombe paragraph 57.
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`Page 19
`1 Q. So am I correct in the first sentence when you
`2 say, "The 'media block' in Coulombe is also," and then
`3 you have this quote, that is a quote from Claim 1 of the
`4 '475 patent; correct?
`5 A. Yes.
`6 Q. So that's not a quote from Coulombe, a direct
`7 quote from Coulombe?
`8 A. I think that's true.
`9 Q. So -- and you go on in the next sentence
`10 talking about this takes place with the Message
`11 Adaptation Engine, do you see? So we're talking about
`12 the Message Adaptation Engine which you said is --
`13 corresponds to the media block; correct?
`14 A. Yes.
`15 Q. So if you go back to Coulombe, where in
`16 Coulombe does it disclose that the Message Adaptation
`17 Engine is configured to select before transmitting at
`18 least one message format?
`19 A. There are several places in Coulombe where this
`20 occurs.
`21 Q. Show me where that says that when you're
`22 talking about the Message Adaptation Engine.
`23 A. For example, in Item 12 in Figure 3 of
`24 Coulombe --
`25 Q. Hold on. Item 12. Okay.
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`Page 21
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`1 Q. 57. Okay.
`2 A. Which, along with the paragraphs that precede
`3 and follow, describes a resolution of the terminal
`4 capabilities of the registering terminal. That
`5 includes -- that determination or resolution includes
`6 selecting them.
`7 Q. So where does it talk -- where does it disclose
`8 that it's selecting? I understand you're talking
`9 resolution and determining. Where in the -- this
`10 paragraph you're referring to me -- 54, 55, 56, 57 --
`11 does it talk about a selection process?
`12 A. As I've just described, that is a selection
`13 process.
`14 Q. So when you're doing resolution and
`15 determining, you're saying that's equivalent to
`16 selecting?
`17 A. Yes.
`18 Q. Okay.
`19 A. In addition, adaption is also equivalent to
`20 selecting.
`21 Q. Oh. So adapting is also equivalent to
`22 selecting?
`23 A. Yes.
`24 Q. Okay. So let me ask you a hypothetical.
`25 If I have a multiple choice exam and I can
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`Page 22
`1 select from A, B and C, on the other hand if I give you
`2 that same test and you must answer it without A, B or
`3 C -- it's not a multiple choice question -- is that also
`4 selecting?
`5 MR. CHEN: Objection. Incomplete hypothetical.
`6 THE WITNESS: I don't understand.
`7 BY MR. SCHINDLER: Q. Okay. You would agree,
`8 if I have a multiple choice exam and I have A, B and C,
`9 I'm going to select either A, B or C.
`10 You agree with that?
`11 A. Yes.
`12 Q. I would select. I have that same exam, and the
`13 professor now makes me come up with an answer that I
`14 must determine, am I also doing a selection?
`15 A. Yes. You're selecting A, B or C.
`16 Q. No. The second exam there is no -- you're not
`17 given a choice of A, B or C. You must write down an
`18 answer. You must determine an answer.
`19 Is that the same thing as selection?
`20 MR. CHEN: Objection. Incomplete hypothetical.
`21 THE WITNESS: I don't understand. I can also
`22 choose not to answer.
`23 BY MR. SCHINDLER: Q. That's your prerogative.
`24 I'm trying to understand here --
`25 A. I mean, in your hypothetical --
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`Page 24
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`1 prosecution history of the '475 patent?
`2 MR. CHEN: Objection. Mischaracterizes
`3 testimony.
`4 BY MR. SCHINDLER: Q. I'm not trying to
`5 mischaracterize. I'm just trying to understand your
`6 answer.
`7 A. Well, you have my answer. It's based partly on
`8 that, yes.
`9 Q. So then is it -- am I correct in saying that if
`10 you didn't take in what you're -- what you're assuming
`11 happened in the prosecution history and only reading
`12 Coulombe, adapting a layout is not the same as selecting
`13 the layout?
`14 MR. CHEN: Objection. Form.
`15 THE WITNESS: I don't understand the question.
`16 I'm sorry.
`17 BY MR. SCHINDLER: Q. Okay, fine.
`18 THE WITNESS: Can I hear the question back?
`19 MR. SCHINDLER: No. Let me ask it again.
`20 BY MR. SCHINDLER: Q. If you were to read
`21 Coulombe itself without reading the file history, the
`22 '475 or anything else and you're one skilled in the art
`23 reading Coulombe, when Coulombe talks about adapting the
`24 layout, am I correct that that's not the same as
`25 selecting the layout?
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`Page 23
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`Page 25
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`1 Q. Yes.
`2 A. -- I can choose not to answer.
`3 Q. You can choose whatever you want the answer is
`4 going to be.
`5 I'm trying to determine, when Coulombe talks
`6 about selecting, for example, selecting the layout --
`7 and does Coulombe say selecting the layout?
`8 MR. CHEN: Objection. Form.
`9 THE WITNESS: Coulombe talks about adapting the
`10 layout, and that is selection.
`11 BY MR. SCHINDLER: Q. And so according to you,
`12 adapting and selecting are the same thing when you're --
`13 hold on. Let me strike that.
`14 So I am adapting the layout is the same thing
`15 to you as selecting the layout?
`16 MR. CHEN: Objection. Form.
`17 THE WITNESS: The file history for the '475
`18 patent shows that the applicant argued to the Patent
`19 Office that adapting means selecting.
`20 BY MR. SCHINDLER: Q. So --
`21 A. That informs me about part of what the '475
`22 patent is teaching, and so you have my answer.
`23 Q. So just to be clear, so you're saying the
`24 reason that you're reading Coulombe, when it talks about
`25 adapting to be equivalent to selecting, is based on the
`
`1 MR. CHEN: Objection. Lacks foundation.
`2 Incomplete hypothetical.
`3 THE WITNESS: Please give me a moment.
`4 BY MR. SCHINDLER: Q. Absolutely.
`5 A. I'm ready. Can I hear the question again?
`6 MR. SCHINDLER: Can you read the question back?
`7 (Whereupon, the following record was read:
`8 "QUESTION: If you were to read Coulombe
`9 itself without reading the file history, the
`10 '475 or anything else and you're one skilled
`11 in the art reading Coulombe, when Coulombe
`12 talks about adapting the layout, am I correct
`13 that that's not the same as selecting the
`14 layout?")
`15 THE WITNESS: One of ordinary skill in the art
`16 would understand adaption requires selection.
`17 BY MR. SCHINDLER: Q. Requires selection.
`18 A. Yes. The process of adapting includes
`19 selecting.
`20 Q. Well, now you're using the word "includes," and
`21 I thought you said "includes" is not -- there can be
`22 other things that are in addition, so I just am trying
`23 to understand your words.
`24 Does -- is the word "adapting the layout" read
`25 only within Coulombe means the same thing as "selecting
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`1 the layout"?
`2 A. Yes.
`3 Q. And the basis for that is what in Coulombe?
`4 A. The understanding of one of ordinary skill in
`5 the art.
`6 Q. In Coulombe, show me in Coulombe where the
`7 basis of that is.
`8 MR. CHEN: Objection. Asked and answered.
`9 THE WITNESS: You have my answer.
`10 BY MR. SCHINDLER: Q. I want to know, in
`11 Coulombe is there any basis for that?
`12 MR. CHEN: Objection. Asked and answered and
`13 argumentative.
`14 THE WITNESS: I find that paragraph 57 in
`15 Coulombe involves selecting.
`16 BY MR. SCHINDLER: Q. Paragraph 57 involves
`17 selecting. So let me just --
`18 A. Along with the paragraphs 58, 59. And as I
`19 testified to earlier, the registration process in
`20 general requires selecting, and the adaptation process
`21 requires selecting.
`22 Q. So these paragraphs that you just referred to
`23 me, paragraph 57, 58, 59, where does the word "select,"
`24 "selecting," "selection" appear?
`25 A. To answer your question, I will need to peruse
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`1 these paragraphs.
`2 Q. Peruse these paragraphs. I'm on 57, 58, 59.
`3 Tell me where the words "select," "selecting,"
`4 "selection" appears.
`5 A. The word "adapt" appears --
`6 Q. That's not my question.
`7 A. So you're asking for the syntax.
`8 Q. Where is the word "select," "selecting,"
`9 "selection," any of those add-ons of the word "select"
`10 appear in 57, 58 or 59?
`11 A. Well, you have my opinion that adapting is
`12 selecting.
`13 MR. SCHINDLER: Can you read back my question.
`14 THE WITNESS: I'm sorry. I'm not finished with
`15 my answer.
`16 And so I believe your client agrees with me
`17 that adaption is selection based on the file history in
`18 the '475. And so aside from any literal appearance of
`19 the word "select" or any of its grammatical forms, my
`20 opinion is that any adaptations are also selections as
`21 well as resolutions as part of -- as part of the
`22 registration process.
`23 And with that I'll continue to look for the
`24 literal appearance of the word -- of the word "select"
`25 along with any of its grammatical forms.
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`1 BY MR. SCHINDLER: Q. I'm going to ask you
`2 again, paragraphs 57, 58 and 59, where does the word
`3 "select," "selection" or "selecting" appear?
`4 MR. CHEN: Objection. Asked and answered.
`5 MR. SCHINDLER: He hasn't answered the
`6 question. If he answers the question, then I'm fine.
`7 MR. CHEN: Objection. Argumentative.
`8 THE WITNESS: I note during the process of my
`9 answer that paragraph 58 has "adaptation" and "adapt."
`10 I'm continuing with my perusal.
`11 I find in paragraph 59 just before the halfway
`12 point the phrase or the sentence, "All these methods may
`13 lead to a different set of capabilities or user
`14 preferences, and it may be required to complement the
`15 capabilities or user preferences obtained by one method
`16 with those obtained by others to get a full set of
`17 obtainable capabilities or user preferences that is
`18 fully reflective of the terminal's capabilities or user
`19 preferences." End of that sentence. And I continue
`20 with my perusal.
`21 Further down in this same paragraph 59 I
`22 quote, "Therefore, it will be understood that 'resolve'
`23 refers to the operation of, one, gathering all possible
`24 capability and reference descriptors from the
`25 information received about the terminals," and then
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`Page 29
`1 there's a parenthesized phrase and then a period, end
`2 quote.
`3 I'm continuing with my perusal.
`4 I include paragraph 60, and I continue.
`5 BY MR. SCHINDLER: Q. My question was 57
`6 through 59 which we previously did. We can do the next
`7 exercise after that.
`8 Does the word "select," "selection" or
`9 "selecting" refer -- does that word appear in 57, 58 or
`10 59?
`11 MR. CHEN: Objection. Asked and answered.
`12 BY MR. SCHINDLER: Q. If you simply answer the
`13 question . . .
`14 A. The textual forms of the word "select" do not
`15 appear in those three paragraphs.
`16 Q. Thank you. So let's talk about your reference
`17 to "all possible," "many possible" and so forth.
`18 So in paragraph 59 the second sentence says,
`19 "There are many possible mechanisms to obtain the
`20 terminal capabilities or user preferences."
`21 And after this it lists four of those
`22 possibilities; correct?
`23 A. Yes.
`24 Q. But those are not the only possibilities?
`25 A. I think that's right.
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`1 Q. That there are other possibilities?
`2 A. I think they are.
`3 Q. That there are other possibilities?
`4 A. Yes.
`5 Q. Thank you. Then further on down you refer to
`6 the sentence that says, "Therefore, it will be
`7 understood that 'resolve' refers to the operation of,
`8 one, gathering all possible capabilities and preference
`9 descriptors from the information received from [sic] the
`10 terminal."
`11 Do you see that?
`12 A. No. It says "received about the terminal."
`13 Q. Sorry. I didn't -- "received" -- so let me ask
`14 this again. Let's read this again. "Therefore, it will
`15 be understood that 'resolve' refers to the operation of,
`16 one, gathering all possible capabilities and preference
`17 descriptors from the information received about the
`18 terminal."
`19 Did I read that correctly?
`20 A. And that is followed by a parentheses.
`21 Q. "(Headers, URL, explicit capabilities or user
`22 preferences)."
`23 A. Yes.
`24 Q. And when it refers to all possible capability
`25 and preferences, how large is that number?
`
`1 but I don't know.
`2 Q. Okay. So throughout Coulombe, Coulombe talks
`3 about -- and if you stay in paragraph 59, and that's
`4 down in item -- it says, "2, Combining the capabilities
`5 or user preferences"?
`6 Do you see that sentence before I read the
`7 whole sentence?
`8 A. Yes.
`9 Q. Okay. It says "Two, Combining the capabilities
`10 or user preferences obtained by the different methods in
`11 the most appropriate manner to make a complete set of
`12 capability information."
`13 Do you see that?
`14 A. Yes.
`15 Q. Yes. So this patent continues to talk about
`16 user preferences throughout. Capabilities -- it
`17 constantly says capabilities or user preferences.
`18 You would agree?
`19 A. No.
`20 Q. So essentially -- so it's -- so I want to show
`21 you that when it talks about capability, so go to
`22 paragraph 86, for example. Paragraph 86 talks about
`23 capabilities or user preferences. And throughout --
`24 essentially if you go to paragraph 119, capabilities or
`25 user preferences, within 119, capability or user
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`1 MR. CHEN: Objection. Form.
`2 THE WITNESS: The size of that number is
`3 generally determined by the reporting capabilities of
`4 that terminal.
`5 BY MR. SCHINDLER: Q. 50?
`6 MR. CHEN: Objection. Form.
`7 THE WITNESS: It's generally determined by the
`8 capabilities o