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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LINDSAY CORPORATION, §
` §
` Petitioner, §
` §
`VS. § CASE NUMBER IPR2015-01039
` §
`VALMONT INDUSTRIES, INC., § U.S. PATENT NO. 7,003,357
` §
` Patent Owner. §
`
` -----------------------------------
` ORAL DEPOSITION OF
` DR. MELVIN RAY MERCER
` APRIL 12, 2016
` VOLUME 1
` -----------------------------------
`
` ORAL DEPOSITION OF DR. MELVIN RAY MERCER,
`produced as a witness at the instance of the PETITIONER,
`and duly sworn, was taken in the above-styled and
`-numbered cause on April 12, 2016, from 9:01 a.m. to
`4:27 p.m., before Nathan Trexler, CSR in and for the
`State of Texas, reported by machine shorthand, at the
`law offices of Fish & Richardson, 1717 Main Street,
`Suite 5000, Dallas, Texas 75201, pursuant to the Federal
`Rules of Civil Procedure and the provisions stated on
`the record or attached hereto.
`
`Lindsay Corporation
`IPR2015-01039
`
`Exhibit 1017 - 1
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LINDSAY CORPORATION, §
` §
` Petitioner, §
` §
`VS. § CASE NUMBER IPR2015-01039
` §
`VALMONT INDUSTRIES, INC., § U.S. PATENT NO. 7,003,357
` §
` Patent Owner. §
`
` -----------------------------------
` ORAL DEPOSITION OF
` DR. MELVIN RAY MERCER
` APRIL 12, 2016
` VOLUME 1
` -----------------------------------
`
` ORAL DEPOSITION OF DR. MELVIN RAY MERCER,
`produced as a witness at the instance of the PETITIONER,
`and duly sworn, was taken in the above-styled and
`-numbered cause on April 12, 2016, from 9:01 a.m. to
`4:27 p.m., before Nathan Trexler, CSR in and for the
`State of Texas, reported by machine shorthand, at the
`law offices of Fish & Richardson, 1717 Main Street,
`Suite 5000, Dallas, Texas 75201, pursuant to the Federal
`Rules of Civil Procedure and the provisions stated on
`the record or attached hereto.
`
`Lindsay Corporation
`IPR2015-01039
`
`Exhibit 1017 - 1
`
`
`
`Page 2
`
` A P P E A R A N C E S
`
`FOR THE PETITIONER:
` MR. SCOTT BROWN
` HOVEY WILLIAMS, LLP
` 10801 MASTIN BOULEVARD
` SUITE 1000
` OVERLAND PARK, KANSAS 66210
` PHONE: (913) 647-9050
` FAX: (913) 647-9057
` E-MAIL: sbrown@hoveywilliams.com
`
`FOR THE PATENT OWNER:
` MR. WES MUSSELMAN
` FISH & RICHARDSON
` 1717 MAIN STREET
` SUITE 5000
` DALLAS, TEXAS 75201
` PHONE: (214) 292-4030
` FAX: (214) 747-2091
` E-MAIL: musselman@fr.com
`
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`Lindsay Corporation
`IPR2015-01039
`
`Exhibit 1017 - 2
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`
`
`Page 3
`
` INDEX
` Appearances . . . . . . . . . . . . . . . . . 2
` Stipulations. . . . . . . . . . . . . . . . . 4
` DR. MELVIN RAY MERCER
` Examination by Mr. Scott Brown . . . . . . 4
` Examination by Mr. Wes Musselman . . . . . 187
` Signature and Changes . . . . . . . . . . . . 190
` Reporter's Certificate. . . . . . . . . . . . 192
` REFERENCED EXHIBITS
` DESCRIPTION PAGE
` United States Patent 7,003,357 (357). . . . . 5
` Institution of Inter Partes Review. . . . . . 55
` Valmont 2009. . . . . . . . . . . . . . . . . 73
` United States Patent 7,010,294 (Pyotsia). . . 103
` United States Patent 6,337,971 (Abts) . . . . 123
` Declaration of Dr. Melvin Ray Mercer. . . . . 133
` Irrigation Advances . . . . . . . . . . . . . 164
` Patent Application (Scott). . . . . . . . . . 171
` Valmont 2015. . . . . . . . . . . . . . . . . 181
`
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`IPR2015-01039
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`Exhibit 1017 - 3
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`Page 4
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` P R O C E E D I N G S
` THE REPORTER: Any stipulations for the
`record?
` MR. BROWN: No.
` MR. MUSSELMAN: No.
` DR. MELVIN RAY MERCER,
`having been first duly sworn, testified as follows:
` EXAMINATION
`BY MR. BROWN:
` Q. Good morning.
` A. Good morning.
` Q. You've had your deposition taken before?
` A. True.
` Q. Yeah. On how many occasions?
` A. I don't know. I lost count a long time ago.
` Q. More than a few. So I'll -- I'll just spend a
`moment to remind you -- it might have been a while --
`that because we have a court reporter here and he can
`only take down one person speaking at a time, please let
`me finish my questions. And I'll try and give you the
`same courtesy and let you finish your answers, and then
`we won't have a frustrated court reporter on our hands.
` Is there any reason you can think of that
`you can't give full, complete, truthful testimony today?
` A. Not that I'm aware of.
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 4
`
`
`
`Page 5
` Q. All right. Have you ever had your proposed
`opinions excluded by a district court before?
` A. Not that I'm aware of.
` MR. BROWN: I'm going to hand you
`Exhibit 1001, which is U.S. Patent 7,003,357.
` Q. (BY MR. BROWN) You familiar with that?
` A. Yes.
` Q. That is the patent which is -- which is the
`subject of this inter partes review.
` A. That's my understanding.
` Q. Is it okay if we refer to that as the 357
`patent, just to shorthand it?
` A. That'll be fine.
` Q. Okay. What would you say is the relevant part
`to the claims of the 357 patent?
` A. So I think I can refer you to my report. I
`have a copy of that, if you're comfortable with me using
`it. If you'd like to, you can produce this to make sure
`that I'm not using anything that I shouldn't use.
` Q. No, that's okay. But can you answer it without
`looking at your report?
` A. I can -- I can do a rough characterization on
`it. Obviously, I spent more time thinking about that
`question before I wrote my report. So I will give you
`sort of what I think of as a thumbnail.
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 5
`
`
`
`Page 6
`
` Q. Uh-huh.
` A. Not with the weight of the opinion that I
`issued in my -- in my report. Generally speaking, when
`I start to look at these thing and try to answer that
`question, there are three places I look.
` The first is I look at the title, and here
`it says, "Methods and means for reading the status of
`and controlling irrigation components." So it would
`seem to me that this -- at the highest level, what the
`357 is about is method and means, and those are the
`kinds of -- well -- okay -- so those are the kinds of
`things that the patent talks about generally.
` Then I look at the abstract -- and I
`won't -- I won't read it to you -- but there's the
`concept of a handheld remote user interface. If it's
`okay this day, I'll call that RUI, R-U-I. If you're
`comfortable with that and if the court reporter's
`comfortable with that, it's just capital R, capital U,
`capital I. This is the -- this is the mechanism by
`which -- at least part of the mechanism by which a user
`is able to control irrigation components.
` The summary of the invention just talks
`about ways of remotely reading the status and
`controlling irrigation components and other equipment,
`which comprise a remote user interface, or RUI, which is
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 6
`
`
`
`Page 7
`a separate unit from the irrigation component control.
`So this is talking about using a separate entity, name
`of it's RUI, perhaps in conjunction with other
`equipment, to accomplish the objective of controlling
`irrigation equipment.
` Now, clearly, while I've given you a broad
`characterization, the fine details of the patent and
`their teaching speak for themselves in the specification
`of the claims.
` Q. So what examples of a RUI are given in the 357
`patent?
` A. Well, the place that -- that I'm most likely to
`go to is in column 6. And I will begin with line 11 for
`context. And about four lines down, we'll start to get
`to the fine details.
` "To enable the RUI 14 to exchange
`information with irrigation components and ancillary
`equipment, the PDA is preferably coupled with wireless
`telemetry technology, such as RF telemetry or cell phone
`telemetry. It is contemplated that the PDA and wireless
`telemetry technology could be combined into a single
`integrated RUI 14 such as," and then it lists three
`examples. "The Sprint TP3000, Kyocera 6035,
`Samsung 1300," and it goes on to say, "or similar
`devices that would enable the user to monitor and
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 7
`
`
`
`Page 8
`control the subject equipment from virtually anywhere."
` So I think that, hopefully, is a complete
`answer to your question.
` Q. So those three particular commercial products
`were given as examples of devices that could act as a
`RUI of the claims of the 357 patent?
` A. Well, I mean, the patent speaks for itself.
`But it says that if you take -- if you combine these
`things that are in the claim, and you combine them into
`one thing that's similar to these devices.
` So it's not specifically saying these
`devices, but it's saying something similar to these
`devices. And in particular, with sort of the
`capabilities of these devices or something like that.
`And obviously, you have to have wireless telemetry
`technology.
` Q. The patent was filed July 1, 2002. Do you see
`that?
` A. Yes, I do.
` Q. And in your opinion, are you assuming that that
`is the appropriate prior art date for the claims of this
`patent?
` A. Yes. I -- if you look in my report, you'll see
`that I state that I've been advised by counsel that
`that's the date I should use.
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 8
`
`
`
`Page 9
` Q. Okay. So let's talk about what was known to
`one of ordinary skill in the art.
` In June of 2002, just before the filing of
`this patent application, which matured into the 357
`patent: As of June 2002, PDAs already existed, right?
` A. Well, PDAs like the examples that were shown
`here, but not generic PDAs. Obviously PDAs have had a
`long life. And so this kind of sets the timeframe and
`sets the kind of PDAs that we're talking out in those
`three examples that I pointed out to you.
` Q. Okay. So there were certainly -- were -- were
`kinds of personal digital assistants, PDAs, that
`preexisted the filing of the 357 patent?
` A. I think one can draw that conclusion from the
`fact that those three PDAs appear in the specification.
` Q. And so the inventors aren't purporting to have
`designed the -- the PDA?
` A. I -- I didn't read that, no. I don't -- I
`don't believe that's the case.
` Q. Okay. And in fact, when patent introduces PDAs
`as a potential RUI, it does so without even explaining
`what a PDA is, right?
` A. Well, I'm not sure I necessarily agree with
`that. I'm not sure that there's an explicit diatribe of
`many, many columns on that. But I think by citing these
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 9
`
`
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`Page 10
`examples we're talking about, we get a very good of what
`was intended by the authors to communicate to one of
`skill in the art, the kinds of PDAs that are being
`contemplated, though with the modifications in that
`section that I read to you.
` Q. And --
` A. And by the way, if I can say one other thing:
`I think that statement was sort of a forward-looking
`statement rather than a back-looking statement.
` In other words: Those people were looking
`at this and seeing that these things could be done with
`something that could be done in the future. Not
`necessarily that existed at this particular time, but,
`on the other hand, very similar to the things that
`existed at that time.
` Q. I'm not sure I understand that last comment.
`Let me ask you a question about it. Is it -- isn't it
`your understanding -- based on that passage you read
`from column 6 -- that the inventors were saying that the
`particular three commercial PDAs that are listed, or
`similar devices, had the capability to be a remote user
`interface of the claims of the 357 patent?
` A. I will refer you there to column 14 -- I mean
`column 6, line 14, where it says, "It is contemplated
`that the PDA and wireless telemetry technology could be
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`Exhibit 1017 - 10
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`Page 11
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`combined to a single integrated RUI 14..."
` So they're not specifically citing PDAs.
`They're citing what they believe is their invention,
`which is the RUI. But they're saying the trade gives
`some details what the characteristics of that RUI would
`be. They're trying to set the character of the RUI in
`the -- in the mind of the inventor.
` Q. As of June 2002, it was known to one of
`ordinary skill in the art that applications could be
`developed to run on a PDA of the type disclosed in the
`357 patent.
` A. I think you'll -- you'll see a lot of those
`details in my report. And I can read those to you, or
`if you prefer, if you want it to be expeditious, I'll
`give you, again, an overview perspective. But again,
`not with the weight of the opinions that appear in the
`report. It's your choice.
` Q. Just please answer without looking at the
`report.
` THE WITNESS: Okay. So then, let me ask
`you to repeat the question so I have it exactly.
` (Requested portion was read.)
` A. So I think you mean "applications of this type"
`being applications such as the applications that are
`taught for the RUI. Or are you just using the term
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`IPR2015-01039
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`Exhibit 1017 - 11
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`Page 12
`"applications" in the generic sense of did applications
`exist?
` Q. (BY MR. BROWN) I'm asking in the generic
`sense. Was it known to one of ordinary skill in the
`art, as of June 2002, that it was possible to develop
`specific applications to run on a PDA?
` A. And the answer is yes. But when you say
`"specific," I think the scope of those applications is
`fairly limited and pretty well known.
` PDAs do things like they have probably
`phone books. At this time, however, those phone books
`might be able to tell you the phone number, but you
`might have to change the context entirely before you
`could actually make a call. Those two might not even be
`linked together.
` I cite a particular document which really
`described this in a very reasonable amount of detail.
`And so in the exhibits to the declaration, you'll see
`entry number 14, which is Exhibit 2010, is by someone
`named David Sandovall, and it's called laptop versus
`PDA.
` And what this is really talking about is
`what sets of applications would be possible with a PDA
`and which ones would probably not be possible with a
`PDA, and instead would -- would involve a laptop. A
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`Exhibit 1017 - 12
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`Page 13
`
`laptop would make a lot more sense.
` And the boundary that they draw there is if
`you have a really simple excel spreadsheet, maybe a PDA
`can handle that, maybe. If it's a complex spreadsheet,
`no, you need a laptop. If you're going to compose a
`letter, you're going to do something really simple, a
`simple message, probably a PDA can do that.
` If you're going to do a formal, desirable,
`meaningful kind of letter that you would not normally do
`in the course of your business, that was probably beyond
`the scope of the PDA applications in the timeframe we're
`talking about.
` Q. And that document was referring to commercially
`available applications, correct? Those that an end
`consumer would purchase with a PDA?
` A. Well, it's true that those are commercially
`available, but the point is that commercially available
`are the ones that people who are trying to make money
`out of this are sort of seeing as the most desirable and
`the most effective things that can be provided with that
`underlying infrastructure.
` And so, while it's commercially available,
`I think it's indicative of what you could do whether it
`was commercially available or not.
` Q. What is a GUI within the meaning of the
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`Exhibit 1017 - 13
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`Page 14
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`claims of the 357 patent?
` A. I think of the GUI as an acronym. And
`actually, if you look at material reviewed in line 9,
`which is Exhibit 1011, it actually states there, quote:
`Graphical user interface, or GUI, G-U-I.
` I would also say that the authors of the
`357 patent are very, very specific. They spend a good
`deal of time -- they spend a significant fraction of
`their patent giving examples of what kind of GUIs
`they're talking about.
` And if you wish, those are discussed in
`context with Figure 2, Figure 3, Figure 4, Figure 5,
`Figure 6, Figure 7, and Figure 8 of the 359 (sic)
`specification. If you wish, I could cite the specific
`descriptions that are in the -- in the patent.
` Q. Let me -- let me try and ask a more pointed
`question. I have sometimes heard of a GUI being
`referring to the entire display, but it seems to me that
`in this patent, they are referring to individual
`elements within the display as a GUI.
` Is that your understanding?
` MR. MUSSELMAN: Objection, form.
` A. Yeah. I'm not sure that I made that
`differentiation. So -- but let's go to a very specific
`example. Let's suppose -- the first thing they talk
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`Exhibit 1017 - 14
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`Page 15
`about is Figure 2. So let's look at the patent and see
`what they say about that.
` Beginning in column 3, line 47, they say,
`"In a preferred embodiment, the software stored by the
`RUI is capable of generating one or more screens of
`compiled information. The information is displayed to
`the user on the display 16 in the format of one or more
`graphical user interfaces."
` So I think that's a pretty generic
`statement. I think that allows for both possibilities.
`It could be that a GUI is a part of the screen, or it
`could be that it's the entirety of the screen. In the
`case when it's one, obviously it would be the entirety
`of the screen. When it's one of many, then it would be
`part of the screen.
` Q. (BY MR. BROWN) Okay. So then, when you're
`looking at the claims of the 357 patent, are you reading
`the claims on individual elements within the display, or
`on the entire display when it refers to a GUI?
` A. Okay. Would you like to refer me to a specific
`claim element?
` Q. Yeah. For instance, if you look at claim 1,
`and it says there's a sub limitation A, "Displaying data
`received from the irrigation equipment as a plurality of
`GUIs that are configured to present said data as status
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`Exhibit 1017 - 15
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`Page 16
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`information on said display."
` Within the context of claim 1, do you
`understand GUIs to be referring to individual elements
`on a screen, or the entirety of the screen?
` A. So I -- in this particular case, I would refer
`you to claims that depend from -- from claim 1.
` And if you -- if you see claim 7, it
`states, "The remote user interface of claim 6 wherein
`said plurality of GUIs are selectively displayed on a
`single screen on said display." So clearly we know that
`claim 1 covers the situation where there are a
`multiplicity of GUIs, they all appear in the same
`screen.
` If we follow on with claim 8, "The remote
`user interface of claim 6 wherein said plurality of GUIs
`are selectively displayed on a plurality of individual
`screens." Now, this goes to what I was saying before.
`Since we have a plurality displaying a plurality, I
`think, you know, that doesn't necessarily say one way or
`the other.
` I think it's wide open whether there's a
`single GUI that could be a screen or not be a screen,
`since there's a plurality of them, and it doesn't
`specify how many GUIs appear on any given screen, just
`that they're selectively displayed on a plurality.
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`Exhibit 1017 - 16
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`Page 17
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` Q. In June of 2002, PDAs had the ability to
`display GUIs, right?
` A. I think that's absolutely true. If you -- if
`you look, again, at the documents that I cited to you,
`and now I will point you to what's listed at 19 in
`Exhibit B. There's an exhibit 2015, called evolution of
`cell phone design between 1983 and 2009.
` And so the date of this is 2009, but the
`timeframe that's covered is 1983 until 2009. And this
`basically shows photographs of cell phones which, I
`think, sort of are indicative of the technology, and
`therefore are probably similar for what you'd find for a
`PDA.
` And so if you look around the period of
`2000, there certainly appear graphical displays. A
`person looks at them, so they are for user interface.
`And so at least some kinds of graphical user interfaces
`were available on PDAs, but not everything.
` And if I look, for example, at those
`things, I didn't see any animation. I didn't see any
`discussion of animation, as a matter of fact. And I
`think the reason that's true is because, well, there
`just wasn't a lot of that kind of thing, because there
`wasn't a lot of support for that kind of thing in 2002.
` Q. But you would agree that, in 2002, at least
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 17
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`Page 18
`simple graphical images could be displayed on PDA?
` A. Well, I think if you -- again, if you look at
`Figures 2 through 8 of the 357 patent, those would be
`what I would characterize as the kinds of GUIs that the
`authors were wanting to communicate to a person of
`ordinary skill in the art as they review the concept of
`the interface mechanisms that we associate with GUIs in
`the 357 patent.
` Q. But the inventors don't purport to have
`invented the GUI, right, the graphical user interface?
` A. No. I don't -- my understanding is that they
`didn't propose that. Obviously, there are specific GUIs
`that they -- that they propose and that they presented
`here. But those are specific as contrasted with the
`generic concept of a GUI.
` And as a matter of fact, the scope of that
`generic consent of a GUI versus what is taught in the
`357 patent are not necessarily even the same.
` Q. And it was -- isn't it true that GUIs
`inherently convey information based upon the graphical
`image that they display?
` MR. MUSSELMAN: Objection, form.
` A. You have a word in there that starts with an I,
`that's "inherent." And so inherent means can I think of
`a counterexample where a GUI would not communicate
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`Lindsay Corporation
`IPR2015-01039
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`Exhibit 1017 - 18
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`information. And since we're talking about a graphical
`user -- graphical user interface, now I want to build
`something that's of the character of what's
`characterized as a GUI here, but it has the property
`that it doesn't communicate information.
` And so for example, if I take pure noise
`and I make a figure of it -- if I have a picture of
`random Brownian motion and I have a picture of it: I
`think, without context, if there's information
`communicated, it's absolutely minimal. And I think a
`lot of people of ordinary skill in the art would say, I
`get nothing out of that.
` So when you put in the word "inherent," I
`can't agree.
` Q. (BY MR. BROWN) Fair to say that it was known
`before June of 2002 to use GUIs to convey information
`based upon the graphical image they display?
` A. It was. And it was also understood that the
`character of the information that could be communicated
`would have to do with, among other things, the
`resolution of the display on which that GUI was used --
`what kind of resolution was used to present that GUI.
` Q. But you're not saying that these inventors were
`the first ones to trip upon the idea of using the GUI to
`graphically convey information to a user?
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`IPR2015-01039
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`Exhibit 1017 - 19
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` A. That's not my -- that's not my understanding.
`I agree, it is not my understanding.
` Q. It was known prior to June of 2002 that you
`could convey status information regarding a thing being
`portrayed by the GUI based upon how the GUI was shaped?
` A. Again, if we look at Figure 2, and we look at
`element 122, we see there is a GUI which is describing
`an irrigation pattern. It's circular in its character,
`but it's restricted to 270 degrees. The teaching of the
`specification says the restriction to 270 degrees, in
`this particular case, is indicative of the fact that,
`for whatever reason, that pivot is only designed to, at
`least at this point, irrigate a 270 degree range.
` That is clearly communicating information
`to the user. And that particular way of communicating
`the information with high probability was invented by --
`by the people in the 357. But the generic concept of
`just communicating information by GUI was well known.
` Q. So in that last answer, you're saying this
`particular GUI, labeled 122 in Figure 2, was something
`that the 357 inventors came up.
` But the generic concept of conveying
`information by shaping a GUI was known prior to their
`patent?
` A. I would say yes. It was known, but it was
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`IPR2015-01039
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`Exhibit 1017 - 20
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`bound. In particular, it was bound by the level of
`resolution or the level of detail in the actual -- in
`the actual graphical user display. Usually in these
`types, characterized by the number of pixels and they're
`arrangements that are used.
` Though, I'm not sure -- well, that --
`that -- that's enough.
` Q. And it was known by one of skill in the art --
`ordinary skill in the art in June of 2002 how to program
`the GUIs of PDAs?
` A. Well, that's a much, much broader question.
`And so I think you would have to give me some idea of
`what you mean by "how to program." And you'd have to
`give me some idea about GUIs.
` It entirely depends on the GUIs, entirely
`depends on the displays being used, entirely depends on
`the capability of the processor that's on the back end
`to generate that GUI, and depends on the resolution of
`the screen to communicate that to a human being. So
`generically, I think one could say some -- some such
`GUIs could be done at that timeframe, but certainly not
`all.
` There was a very real limitation, and I
`focus on that in my report specifically. And I'm happy
`to refer you to particular sections of my report that
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`Exhibit 1017 - 21
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`
`talk about that in some detail.
` Q. Well, let's take, for instance, the GUI 122 in
`Figure 2 of the 357 patent. It was known by one of
`ordinary skill, if they were told that this is a good
`GUI to use, they would have been able to do the
`programming to cause that GUI to be displayed on the PDA
`without being told anything other than the shape that
`was desired?
` A. No. I -- I don't -- I don't agree with that at
`all. I, myself, have built a lot of graphical user
`interfaces, and there's a -- there's a tremendous amount
`of detail that's required.
` You see, this is a -- this is an
`input/output device. It's running in some sort of
`environment, like an operating system. There are an
`enormous number of details that would have to be done,
`even by one of ordinary skill in the art, in order to
`accomplish this.
` I, myself, don't consider myself
`necessarily to be just one of ordinary skill in the art.
`But I will freely admit that, given tasks that were
`similar to this, I had to do a lot of experimentation
`before I learned how to use the system in a way that it
`accomplished the objective that I had, like this
`display.
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`Exhibit 1017 - 22
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`
` Q. Well, in the 357 patent, there are no
`algorithms provided for programming the GUIs, correct?
` A. That's true.
` Q. That was known to one of ordinary skill in the
`art at the time of the 357 patent, right?
` A. I think the -- the idea is here that one is
`communicating examples of GUIs that would be useful with
`respect to an invention under the 357 patent. I don't
`think that the fine details are necessarily all included
`here.
` And they're -- they're not included here
`because it's understood that one of skill in the art has
`certain abilities and that one of skill in the art has
`access to certain resources. And so combining those
`resources with motivation and information, I think
`there's a reasonable probability of success, after some
`effort, to produce these.
` But I don't want to trivialize them,
`because they're not.
` Q. Understood. But in other words: If one of
`ordinary skill in the art were given this application to
`read, there's enough information in this application for
`them to go forth and reduce the invention to practice,
`put it on a PDA, operate the GUIs as required by the
`claims?
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`Exhibit 1017 - 23
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` A. Okay. So that really is very close to the way
`I interpreted your earlier question. And so if you're
`asking me if the information explicitly, in this
`document, is adequate, I think the answer is no.
` If you're asking me, Is the information in
`this document, in combination with the knowledge of one
`of skill in the art -- by the way, one of skill in the
`art is no ordinary person. They read everything, they
`know everything that exists.
` And so if you integrate all of the
`information that would be accessible a practitioner with
`the information in this particular patent, I think,
`again, I would say with some tenacity and with some
`time, that this, with high probability, could be
`achieved.
` Though again, that depends on a large,
`large number of things. I can remember back when things
`were about this complicated, I had a boss who wanted me
`to port something like this from one operating system to
`another operating system. And he wanted it to work
`exactly the same. I said, No. I don't think that makes
`sense. I don't think you want to port it from one
`system to another. I think you're better off starting
`from the beginning.
` He didn't want to do that. He wanted it to
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`IPR2015-01039
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`Exhibit 1017 - 24
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`Page 25
`be exactly the same. Well, I refused to do it. And to
`show me that it could be done, he decided to do it
`himself. But a year later, he hadn't completed the
`task.
` So it depends on how you approach this
`problem. And generally speaking, most people of skill
`in the art would probably not have selected the approach
`that my boss had selected. I'm not saying that there
`are probably solution, but again, they're not trivial.
`It takes good engineering judgment, which I believe
`someone of skill in the art has.
` Q. So one of skill in the art, given all the
`background knowledge available to one of ordinary skill
`in the art and given the disclosure of the 357 patent,
`wouldn't require any particular teaching about how to
`program a GUI for a PDA?
` A. Oh, I think they would require a teaching. I
`think you have to know all kinds of things. I mean, to
`begin with, any of these PDAs you're going to run in
`some sort of environment. They're going to be using,
`for example, instruction sets. They certainly have to
`know something about instruction sets.
` Obviously, this claim talks about the
`processor, but this processor then also talks about a
`display. So going from the processor to the display is
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`Exhibit 1017 - 25
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`Page 26
`something they would certainly have to know about.
`They'd have to know a lot of details about that. I'm
`not saying that one of skill in the art wouldn't be
`argued to be able to access that, but I don't believe
`that they necessarily could sit down and be successful
`without doing that sort of access.
` So that's why we're talking about
`addit
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