·1· · · · · ·IN THE UNITED STATES DISTRICT COURT
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`·2· · · · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`·3· · · · · · · · · · SOUTHERN DIVISION
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`·4
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`·5
`· · ·KINGLITE HOLDINGS, INC.,· · )
`·6· · · · · · · · · · · · · · · ·)
`· · · · · · · · · Plaintiff,· · ·)
`·7· · · · · · · · · · · · · · · ·)
`· · · · ·vs.· · · · · · · · · · ·) CASE NO.:
`·8· · · · · · · · · · · · · · · ·) CV 14-03009 JVS (PJWx)
`· · ·MICRO-STAR INTERNATIONAL,· ·) Consolidated with
`·9· ·CO., LTD, AND MSI COMPUTER· ) CB 14-04989 JVS (PJWx)
`· · ·CORP.,· · · · · · · · · · · )
`10· · · · · · · · Defendants.· · )
`· · ·____________________________)
`11· · · · · · · · · · · · · · · ·)
`· · ·This Document Relates to· · )
`12· ·BOTH CASES.· · · · · · · · ·)
`· · ·____________________________)
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`15· · · · · · ·Deposition of LEONARD GALASSO, taken
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`16· · · · on behalf of the Defendant/Counterclaim
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`17· · · · Plaintiff American Megatrends, Inc., at
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`18· · · · 633 West Fifth Street, Suite 1900, Room
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`19· · · · 19-C, Los Angeles, California, commencing
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`20· · · · from 8:55 a.m. to 11:40 a.m., 2.20 hours
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`21· · · · total on record, on Wednesday, December 17,
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`22· · · · 2014, before Tracy M. Fox, Certified
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`23· · · · Shorthand Reporter Number 10449.
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`24
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`25
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`1
`EX 1012 IPR of Pat. No. 6,892,304
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`
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`·2· · · · ·FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`·3· · · · · · · · · · SOUTHERN DIVISION
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`·4
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`·5
`· · ·KINGLITE HOLDINGS, INC.,· · )
`·6· · · · · · · · · · · · · · · ·)
`· · · · · · · · · Plaintiff,· · ·)
`·7· · · · · · · · · · · · · · · ·)
`· · · · ·vs.· · · · · · · · · · ·) CASE NO.:
`·8· · · · · · · · · · · · · · · ·) CV 14-03009 JVS (PJWx)
`· · ·MICRO-STAR INTERNATIONAL,· ·) Consolidated with
`·9· ·CO., LTD, AND MSI COMPUTER· ) CB 14-04989 JVS (PJWx)
`· · ·CORP.,· · · · · · · · · · · )
`10· · · · · · · · Defendants.· · )
`· · ·____________________________)
`11· · · · · · · · · · · · · · · ·)
`· · ·This Document Relates to· · )
`12· ·BOTH CASES.· · · · · · · · ·)
`· · ·____________________________)
`13
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`14
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`15· · · · · · ·Deposition of LEONARD GALASSO, taken
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`16· · · · on behalf of the Defendant/Counterclaim
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`17· · · · Plaintiff American Megatrends, Inc., at
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`18· · · · 633 West Fifth Street, Suite 1900, Room
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`19· · · · 19-C, Los Angeles, California, commencing
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`20· · · · from 8:55 a.m. to 11:40 a.m., 2.20 hours
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`21· · · · total on record, on Wednesday, December 17,
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`22· · · · 2014, before Tracy M. Fox, Certified
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`23· · · · Shorthand Reporter Number 10449.
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`24
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`1
`EX 1012 IPR of Pat. No. 6,892,304
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`·1· ·APPEARANCES OF COUNSEL:
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`·2
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`·3· ·FOR THE PLAINTIFF:
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`·4· · · · · · STADHEIM & GREAR, Ltd.
`· · · · · · · BY:· ROBERT M. SPALDING, ESQ.
`·5· · · · · · 400 North Michigan Avenue
`· · · · · · · Suite 2200
`·6· · · · · · Chicago, Illinois· 60611
`· · · · · · · (312) 755.4400
`·7· · · · · · spalding@stradheimgrear.com
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`·8
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`·9· ·FOR THE DEFENDANT AND COUNTERCLAIM PLAINTIFF
`· · ·AMERICAN MEGATRENDS, INC.:
`10
`· · · · · · ·HILL, KERTSCHER & WHARTON, LLP
`11· · · · · ·BY:· JOHN L. NORTH, ESQ.
`· · · · · · ·3350 Riverwood Parkway
`12· · · · · ·Suite 800
`· · · · · · ·Atlanta, Georgia· 30339
`13· · · · · ·(678) 384-7458
`· · · · · · ·jln@hkw-law.com
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`·1· · · · · · · · · · · · I N D E X
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`·3· ·WITNESS:· · · · · · · EXAMINED BY:· · · · · ·PAGE:
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`·4· ·Leonard J. Galasso· · Mr. North· · · · · · · · ·5
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`·8· ·DEFENDANTS' EXHIBITS FOR IDENTIFICATION:· · ·PAGE:
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`·9· ·GALASSO EXHIBITS:
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`10· ·EXHIBIT 1 - Defendant and Counterclaim
`· · · · · · · · ·Plaintiff American Megatrends,
`11· · · · · · · ·Inc's Notice of Deposition of
`· · · · · · · · ·Leonard J. Galasso (3 pages)· · · ·10
`12
`· · ·EXHIBIT 2 - United States Patent Number
`13· · · · · · · ·5,844,986 dated December 1,
`· · · · · · · · ·1998 (10 pages)· · · · · · · · · · 56
`14
`· · ·EXHIBIT 3 - Copy of 990 Application
`15· · · · · · · ·dated October 9, 1997
`· · · · · · · · ·(66 pages)· · · · · · · · · · · · ·58
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`·1· · · · · · · · · I N D E X (Continued)
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`·2
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`·3· ·DEFENDANTS' EXHIBITS PREVIOUSLY MARKED FOR
`· · ·IDENTIFICATION:
`·4
`· · ·ZILMER EXHIBITS:· · · · · · · · · · · · · · · PAGE:
`·5
`· · ·EXHIBIT 2 - United States Patent Number
`·6· · · · · · · ·U.S. 6,892,304 B1 dated
`· · · · · · · · ·May 10, 2005 (34 pages)· · · · · · 20
`·7
`· · ·EXHIBIT 3 - File History for the 990
`·8· · · · · · · ·Application, Filing Date:
`· · · · · · · · ·October 9, 1997 (166 pages)· · · · 31
`·9
`· · ·EXHIBIT 4 - U.S. Utility Patent Application
`10· · · · · · · ·Number 6148387 (136 pages)· · · · ·32
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`14· · · · · · ·QUESTIONS UNANSWERED BY THE WITNESS:
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`15· · · · · · · · · · · · · ·(None.)
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`19· · · · · · · · · · INFORMATION REQUESTED:
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`20· · · · · · · · · · · ·Page:· · · Line:
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`21· · · · · · · · · · · · 13· · · · ·16
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`·1· · · · · · · · ·LOS ANGELES, CALIFORNIA
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`·2· · · · · · · ·WEDNESDAY, DECEMBER 17, 2014
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`·3· · · · · · · · · · · · 8:55 A.M.
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`·4
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`·5· · · · · · · · · ·LEONARD J. GALASSO,
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`·6· · · · · ·called as a witness and sworn in by
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`·7· · · · · · Deposition Officer, was examined
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`·8· · · · · · · · and testified as follows:
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`·9
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`10· · · · · · ·DEPOSITION OFFICER:· Can you raise your
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`11· ·right hand, please.
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`12· · · · · · ·Do you solemnly state that the testimony
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`13· ·you are about to give in the following deposition
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`14· ·will be the truth, the whole truth, and nothing but
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`15· ·the truth?
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`16· · · · · · ·THE WITNESS:· I do.
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`17· · · · · · ·DEPOSITION OFFICER:· Thank you.
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`18
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`19· · · · · · · · · · · ·EXAMINATION
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`20· ·BY MR. NORTH:
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`21· · · · Q.· ·Good morning, Mr. Galasso.
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`22· · · · A.· ·Good morning.
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`23· · · · Q.· ·My name is John North, and I represent the
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`24· ·Defendants in a patent litigation matter which is
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`25· ·brought by a company called Kinglite.
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`5
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`·1· · · · · · ·And one of the patents as to which you
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`·2· ·are a named inventor is at issue in the case, and
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`·3· ·that's why we're here today, so I can ask you a few
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`·4· ·questions about that.
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`·5· · · · · · ·Do you generally understand that that's
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`·6· ·why you're here today?
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`·7· · · · A.· ·I do.
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`·8· · · · Q.· ·All right.· And then next to you is
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`·9· ·Mr. Spalding, who is one of Kinglite's lawyers.
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`10· · · · · · ·Is he representing you here today?
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`11· · · · A.· ·Yes.
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`12· · · · Q.· ·And I understand that the day before
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`13· ·yesterday you had a preparation session at which
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`14· ·Mr. Spalding's partner Mr. Summerfield was present,
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`15· ·and also Mr. Zilmer was present; is that correct?
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`16· · · · A.· ·It is.
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`17· · · · Q.· ·And I know you had a nice warm-up
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`18· ·breakfast with Mr. Spalding this morning.
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`19· · · · · · ·Did you talk more about this deposition at
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`20· ·that time?
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`21· · · · A.· ·We referred to it.· I think we -- we
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`22· ·talked about it was imminent, but we didn't discuss
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`23· ·any details.
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`24· · · · Q.· ·It wasn't a substantive discussion?
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`25· · · · A.· ·It was not.
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`6
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`·1· · · · Q.· ·Would you state your full name just so
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`·2· ·it's on the record, and also then provide your
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`·3· ·address.
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`·4· · · · · · ·You provided it to the court reporter,
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`·5· ·but, again, just so it's on the record, if you can
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`·6· ·provide it to us.
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`·7· · · · A.· ·Leonard James Galasso.· My mailing address
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`·8· ·is P.O. Box 993, Trabuco Canyon, California 92678.
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`·9· · · · Q.· ·How old a person are you?
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`10· · · · A.· ·I am 57.
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`11· · · · Q.· ·Are you on any medications today or
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`12· ·otherwise under any condition that would prevent you
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`13· ·from telling the truth as best as you know it?
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`14· · · · A.· ·I'm not.
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`15· · · · Q.· ·Have you ever been deposed before in a
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`16· ·professional -- regarding work as opposed to
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`17· ·personal matters?
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`18· · · · A.· ·No.
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`19· · · · Q.· ·Then let me provide some of the ground
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`20· ·rules for today.
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`21· · · · · · ·The golden and most important guiding
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`22· ·principle is that we're trying to have as clear
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`23· ·questions as I can ask, and the best, honest,
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`24· ·truthful answers as you can provide in a way that
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`25· ·the court reporter can take it down in an accurate
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`7
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`·1· ·fashion.
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`·2· · · · · · ·Do you understand that?
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`·3· · · · A.· ·Yes.
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`·4· · · · Q.· ·And as part of that, if you can wait for
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`·5· ·me to finish my question before you start answering,
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`·6· ·and I will try to wait for you to finish your answer
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`·7· ·before I get the next question, that will be helpful
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`·8· ·to the court reporter.
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`·9· · · · · · ·Does that make sense?
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`10· · · · A.· ·Yes.
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`11· · · · Q.· ·And, again, even though we have a
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`12· ·wonderful court reporter, she can't read our minds,
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`13· ·and so we need to articulate our responses rather
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`14· ·than shake our heads -- yesses and noes -- as we
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`15· ·often do in conversation.
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`16· · · · · · ·Is that fair?
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`17· · · · A.· ·Yes.
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`18· · · · Q.· ·We will take a few breaks, and hopefully
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`19· ·we won't be going too long today.
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`20· · · · · · ·But if at any time you've lost
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`21· ·concentration or otherwise need a break, if you'd
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`22· ·please let us know, I'll simply ask you to answer
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`23· ·the question and then we'll be glad to take a break
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`24· ·if you need one.
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`25· · · · · · ·Is that fair?
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`8
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`·1· · · · A.· ·Yes.
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`·2· · · · Q.· ·I'm going to ask the questions in the best
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`·3· ·way that I know how, but you know more about this
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`·4· ·technology and the issues than I do.
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`·5· · · · · · ·So if I ever phrase a question in a way
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`·6· ·that doesn't make sense to you, please let me know
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`·7· ·and I'll try to rephrase it.
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`·8· · · · · · ·Is that fair?
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`·9· · · · A.· ·Yes.
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`10· · · · Q.· ·Likewise, if you provide an answer and I'm
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`11· ·not certain of it, I may ask for clarification, and
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`12· ·I hope you'll bear with me.
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`13· · · · A.· ·Sure.
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`14· · · · Q.· ·Okay.· And the first document that
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`15· ·I'd like to mark will be Galasso -- "Notice of
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`16· ·Deposition of Leonard J. Galasso."· And I will
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`17· ·hand it to the court reporter to mark and then we'll
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`18· ·place it in front of you and then I'll just have a
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`19· ·few questions.
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`20· · · · · · ·DEPOSITION OFFICER:· And "Galasso" is
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`21· ·G-a-l-a-s-s-o; correct?
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`22· · · · · · ·THE WITNESS:· Yes.
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`23· · · · · · ·DEPOSITION OFFICER:· I just wanted to make
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`24· ·sure because you didn't spell it on the record.
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`25· · · · · · ·THE WITNESS:· Right.
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`9
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`·1· · · · · · ·DEPOSITION OFFICER:· Thank you.
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`·2· · · · · · ·THE WITNESS:· Yes.
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`·3· · · · · · ·(Whereupon, Defendants' Galasso Exhibit
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`·4· · · · · · ·Number 1 was marked for identification
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`·5· · · · · · ·by the Deposition Officer.)
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`·6· ·BY MR. NORTH:
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`·7· · · · Q.· ·Mr. Galasso, this is a legal document that
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`·8· ·formally gave notice regarding your appearing today
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`·9· ·to answer questions regarding the case.
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`10· · · · · · ·And if you or your counsel can confirm
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`11· ·that you are here to testify today in response
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`12· ·to and in accordance with this notice of deposition.
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`13· · · · A.· ·Yes, I am.
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`14· · · · Q.· ·And all of the parties do appreciate you
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`15· ·coming here to White & Case to answer the questions,
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`16· ·and it's to all of our convenience, and we do
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`17· ·appreciate that.
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`18· · · · · · ·Could you give me a high-level summary of
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`19· ·your educational background?
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`20· · · · A.· ·Yes.· Sure.
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`21· · · · · · ·I was trained in electronics beginning
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`22· ·in 1972 in high school; I took four years of
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`23· ·electronics training, after which I took two years
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`24· ·of college electronics training at a junior college.
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`25· · · · · · ·And after that I transferred into several
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`10
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`·1· ·different engineering programs, never completing
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`·2· ·them.
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`·3· · · · · · ·So I am an engineer with a background in
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`·4· ·electrical engineering and software engineering, but
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`·5· ·I don't possess any college degrees.
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`·6· · · · Q.· ·Thank you.
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`·7· · · · · · ·And I didn't hear at the very beginning,
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`·8· ·because we have some colds in the room, what that
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`·9· ·word was.· Can you repeat --
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`10· · · · · · ·(The record was read as follows:
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`11· · · · · · ·A.· I was trained in electronics
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`12· · · · · · ·beginning in 1972 in high school.)
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`13· ·BY MR. NORTH:
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`14· · · · Q.· ·That was "electronics"?
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`15· · · · A.· ·Yes.
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`16· · · · Q.· ·Okay.· Thank you.
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`17· · · · · · ·MR. SPALDING:· Sorry.
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`18· · · · · · ·MR. NORTH:· Off the record for a second.
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`19· · · · · · ·(Whereupon, a brief discussion was held
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`20· · · · · · ·off the record.)
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`21· · · · · · ·DEPOSITION OFFICER:· Back on the record.
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`22· ·BY MR. NORTH:
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`23· · · · Q.· ·At some point you became employed by
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`24· ·Phoenix Technologies; is that correct?
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`25· · · · A.· ·It is.
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`11
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`·1· · · · Q.· ·Can you tell me, as best as you can
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`·2· ·recall, when you joined Phoenix?
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`·3· · · · · · ·And I'll refer to Phoenix Technologies as
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`·4· ·"Phoenix" if that's okay with you.
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`·5· · · · A.· ·Yes.
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`·6· · · · Q.· ·Okay.
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`·7· · · · A.· ·I joined Phoenix in -- sometime in 1993, I
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`·8· ·believe it was, after the company that I was
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`·9· ·currently employed with was purchased by Phoenix.
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`10· · · · · · ·That company was a smaller company
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`11· ·purchased by Phoenix, a larger company.
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`12· · · · Q.· ·When did you leave the employment of
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`13· ·Phoenix?
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`14· · · · A.· ·I left Phoenix in April of 2000 -- 2001.
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`15· · · · Q.· ·Was the reason that you were seeking
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`16· ·employment with another company at that point?
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`17· · · · A.· ·No.
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`18· · · · Q.· ·We have heard that there were a number of
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`19· ·layoffs at Phoenix.· Were you subject to some of
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`20· ·those, if I might ask?
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`21· · · · A.· ·I was.
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`22· · · · Q.· ·I'm going to step back and ask you a
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`23· ·little bit about before you were a part of joining
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`24· ·Phoenix, and then we'll talk about Phoenix for a
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`25· ·moment.
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`12
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`·1· · · · · · ·What was the name of that company that you
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`·2· ·were part of before it was purchased by Phoenix?
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`·3· · · · A.· ·It was called Quadtel, Q-u-a-d-t-e-l,
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`·4· ·Corporation.· It was based in Costa Mesa,
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`·5· ·California.
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`·6· · · · Q.· ·How long were you with that company?
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`·7· · · · A.· ·Less than a year, eight to nine months
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`·8· ·before the acquisition took place.
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`·9· · · · Q.· ·I assume that between the mid 1970s and
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`10· ·mid 1990s you were employed using your electronics
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`11· ·experience in a number of different positions with a
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`12· ·number of different companies --
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`13· · · · A.· ·Uh-huh.
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`14· · · · Q.· ·-- is that correct?
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`15· · · · A.· ·Yes.
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`16· · · · Q.· ·Do you have a resume that you could
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`17· ·provide to counsel, and thus to us, which would lay
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`18· ·that out rather than our trying to work it out as a
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`19· ·memory test here today?
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`20· · · · A.· ·I do.
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`21· · · · · · ·MR. NORTH:· Counsel, would you agree to
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`22· ·ask for that and provide it to us?
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`23· · · · · · ·MR. SPALDING:· Sure.
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`24· · · · · · ·MR. NORTH:· All right.· Great.
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`25· ·///
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`13
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`·1· ·BY MR. NORTH:
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`·2· · · · Q.· ·At the time you joined Phoenix in 1993
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`·3· ·within the electronics software sphere, did you have
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`·4· ·a particular focus or expertise?
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`·5· · · · · · ·Or it may have been two or three of them,
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`·6· ·but was there anything -- if you said, "This is why
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`·7· ·I am different than the other electronic software
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`·8· ·people out here in California."
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`·9· · · · A.· ·There was one thing in particular that if
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`10· ·I were -- were to pinpoint it at that point in time,
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`11· ·it was experience with writing Windows device
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`12· ·drivers.
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`13· · · · · · ·That was one aspect that was somewhat
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`14· ·unique in my background.
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`15· · · · Q.· ·And because this transcript may be read by
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`16· ·people who haven't been focusing on this technology
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`17· ·like we have, could you explain to the judge or jury
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`18· ·what a "device driver" is?
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`19· · · · A.· ·A device driver is a software module which
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`20· ·does several things.
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`21· · · · · · ·One thing it does most assuredly is
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`22· ·abstract the hardware details from the software that
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`23· ·would use that hardware.
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`24· · · · · · ·The second thing it does is it provides
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`25· ·synchronization between many competing threads that
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`14
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`·1· ·might want to use that piece of hardware and the
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`·2· ·operating system.
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`·3· · · · · · ·In this particular case, there was another
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`·4· ·aspect called "virtualization," which Windows device
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`·5· ·drivers were also providing.· And I think that might
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`·6· ·have been the one aspect that was very useful to the
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`·7· ·company that I joined at that time, Quadtel.
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`·8· · · · Q.· ·And does virtualization deal with the
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`·9· ·different types of memory one might have, meaning
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`10· ·virtual and physical memory?
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`11· · · · A.· ·No.
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`12· · · · Q.· ·What did you mean when you said
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`13· ·"virtualization"?
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`14· · · · A.· ·In this context, virtualization would be
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`15· ·providing -- providing everything but the hardware
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`16· ·itself to upper software layers.
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`17· · · · · · ·I might clarify it by saying this:· That I
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`18· ·could pretend there was a floppy drive in the system
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`19· ·when there was no floppy drive in the system, to the
`
`20· ·extent that all the software in the system would
`
`21· ·think there was a floppy drive and would try to use
`
`22· ·it if it needed to when in reality there was no
`
`23· ·floppy drive in the system.
`
`24· · · · · · ·That would be an example of
`
`25· ·virtualization.
`
`15
`
`
`·1· · · · Q.· ·And why might that functionality enhance a
`
`·2· ·system?
`
`·3· · · · A.· ·Although I did pick a bad example here,
`
`·4· ·some more useful examples of virtualization might
`
`·5· ·be, as you pointed out, memory.· There could
`
`·6· ·actually be a lot less memory than the system thinks
`
`·7· ·it has.
`
`·8· · · · · · ·Or there could be different types of
`
`·9· ·memory than actually exist in the system.· And by
`
`10· ·providing the simulation of these entities, the user
`
`11· ·experience could be enhanced in some way.
`
`12· · · · Q.· ·Would that be through enhanced speed of
`
`13· ·execution of programs, for example?
`
`14· · · · A.· ·No.
`
`15· · · · Q.· ·What would be some of the enhanced
`
`16· ·benefits to a user?
`
`17· · · · A.· ·It might provide memory protection for my
`
`18· ·application versus another application in the system
`
`19· ·that was executing concurrently, such that my memory
`
`20· ·could not be corrupted or even accessed by another
`
`21· ·computer without my knowledge of it and, therefore,
`
`22· ·my ability to block that access.
`
`23· · · · Q.· ·Do you recall what position or title you
`
`24· ·held when you joined Phoenix in -- at or about
`
`25· ·1993?
`
`16
`
`
`·1· · · · A.· ·Yes.
`
`·2· · · · Q.· ·And what was that?
`
`·3· · · · A.· ·Senior project engineer.
`
`·4· · · · Q.· ·Was that within a particular group or
`
`·5· ·subgroup of engineers at Phoenix?
`
`·6· · · · A.· ·This was at Quadtel, my initial -- when I
`
`·7· ·joined the -- the group there.
`
`·8· · · · · · ·No, there was not a group for me to join;
`
`·9· ·I was basically my own group.
`
`10· · · · Q.· ·Was your -- the focus of your work on the
`
`11· ·technology we've just been discussing when you
`
`12· ·joined Phoenix?
`
`13· · · · A.· ·Yes.
`
`14· · · · Q.· ·All right.· When you joined Phoenix, did
`
`15· ·you have any experience with BIOS technology?
`
`16· · · · A.· ·Yes.
`
`17· · · · Q.· ·Can you generally describe what experience
`
`18· ·you had with BIOS at the time you joined Phoenix?
`
`19· · · · A.· ·My experience at that point was reading
`
`20· ·about, understanding, and knowing the scope of what
`
`21· ·types of services might be included in a typical
`
`22· ·system BIOS, and also writing small programs that
`
`23· ·accessed and used these services.
`
`24· · · · Q.· ·Did you have any experience with
`
`25· ·encryption at the time you joined Phoenix in 1993?
`
`17
`
`
`·1· · · · A.· ·Somewhat, yes.
`
`·2· · · · Q.· ·Please describe what level of experience
`
`·3· ·you had when you joined Phoenix.
`
`·4· · · · A.· ·At a previous company --
`
`·5· · · · · · ·Should I describe the name of the company?
`
`·6· · · · · · ·MR. SPALDING:· Sure.
`
`·7· · · · · · ·THE WITNESS:· Okay.
`
`·8· · · · · · ·-- MAI Basic Four, which produced mini
`
`·9· ·computers for business, there was one aspect of my
`
`10· ·work that involved decryption.
`
`11· ·BY MR. NORTH:
`
`12· · · · Q.· ·Did that decryption work include a
`
`13· ·public/private key system of encryption?
`
`14· · · · A.· ·No.
`
`15· · · · Q.· ·Did you have experience with a
`
`16· ·public/private key encryption type system at the
`
`17· ·time you joined Phoenix?
`
`18· · · · A.· ·I had awareness of it and had used some
`
`19· ·sample systems that had asymmetric or public/private
`
`20· ·key encryption.
`
`21· · · · Q.· ·Generally that technology was known in the
`
`22· ·software world at the time you joined Phoenix;
`
`23· ·correct?
`
`24· · · · A.· ·Yes.
`
`25· · · · Q.· ·At the time you joined Phoenix at or about
`
`18
`
`
`·1· ·1993, were you familiar with the concept of a BIOS
`
`·2· ·service request?
`
`·3· · · · A.· ·Yes.
`
`·4· · · · Q.· ·Tell me what your understanding was of a
`
`·5· ·BIOS service request at the time you joined Phoenix
`
`·6· ·in 1993.
`
`·7· · · · A.· ·The knowledge could be traced back, I
`
`·8· ·would say, to a system called CPM, which was popular
`
`·9· ·in the late '70s.
`
`10· · · · · · ·And I do believe that the whole notion of
`
`11· ·a BIOS might have been coined under that system.
`
`12· · · · · · ·And these services were very simple in
`
`13· ·nature and provided very simple, basic input and
`
`14· ·output services for things such as keyboards,
`
`15· ·screens, and simple data communications.
`
`16· · · · · · ·That was the extent.
`
`17· · · · Q.· ·What was the name of that entity you
`
`18· ·referred to?· CPM?
`
`19· · · · A.· ·CPM.· It was a very early single-user
`
`20· ·single-tasking operating system produced for some of
`
`21· ·the first generations of personal computers.
`
`22· · · · Q.· ·And was there a company that was
`
`23· ·associated with this technology?
`
`24· · · · A.· ·There were several.· I don't recall them.
`
`25· · · · Q.· ·Let us put in front of you now a copy of
`
`19
`
`
`·1· ·U.S. Patent 6,892,304, which was identified
`
`·2· ·yesterday in Mr. Zilmer's deposition as Zilmer
`
`·3· ·Exhibit Number 2, and we'll continue using that
`
`·4· ·today.
`
`·5· · · · · · ·And if we can pull that out and put it in
`
`·6· ·front of the witness, please.
`
`·7· · · · · · ·(Whereupon, Defendants' Zilmer Exhibit
`
`·8· · · · · · ·Number 2, was previously marked for
`
`·9· · · · · · ·identification by the Deposition Officer.)
`
`10· · · · · · ·(Whereupon, a brief discussion was
`
`11· · · · · · ·held off the record between counsel.)
`
`12· ·BY MR. NORTH:
`
`13· · · · Q.· ·Mr. Galasso, in front of you, again, is
`
`14· ·Zilmer Exhibit Number 2.
`
`15· · · · · · ·And if I refer to this as the "304
`
`16· ·Patent," will that be understandable to you --
`
`17· · · · A.· ·Yes.
`
`18· · · · Q.· ·-- as a short form?
`
`19· · · · A.· ·Yes.
`
`20· · · · Q.· ·Thank you.
`
`21· · · · · · ·And you are listed as one of the named
`
`22· ·inventors on this patent.
`
`23· · · · · · ·Do you see that?
`
`24· · · · · · ·(Document reviewed by the witness.)
`
`25· · · · · · ·THE WITNESS:· I do.
`
`20
`
`
`·1· ·BY MR. NORTH:
`
`·2· · · · Q.· ·And, in fact, were you one of the named
`
`·3· ·inventors of the 304 Patent?
`
`·4· · · · A.· ·I was.
`
`·5· · · · Q.· ·When was the last time that you saw a copy
`
`·6· ·of this patent, using "saw" in the broadest sense of
`
`·7· ·looked at, not necessarily studied.
`
`·8· · · · A.· ·I would say it's been five to ten years
`
`·9· ·since I've seen this particular document.
`
`10· · · · Q.· ·Do you recall the circumstances around
`
`11· ·which you saw it last?
`
`12· · · · A.· ·I do.
`
`13· · · · Q.· ·Please tell us.
`
`14· · · · A.· ·I received a Google alert which I had
`
`15· ·previously set up using the following triggering
`
`16· ·criteria:· My name -- first name, middle initial,
`
`17· ·last name.
`
`18· · · · · · ·I set this up periodically -- I set this
`
`19· ·up so that I would periodically get updates if
`
`20· ·anyone had used a document with my name in it or had
`
`21· ·written something referring to me by name -- that
`
`22· ·particular name.
`
`23· · · · · · ·So I do believe I received a Google alert
`
`24· ·with this document as the flagged notation in it.
`
`25· ·That probably -- although I can't say 100 percent
`
`21
`
`
`·1· ·certainty that was how I became aware of it.
`
`·2· · · · Q.· ·Do you recall who had been looking at the
`
`·3· ·304 Patent that triggered this alert?
`
`·4· · · · A.· ·I don't recall who it was, but it was some
`
`·5· ·sort of a reference to this document.
`
`·6· · · · Q.· ·Okay.
`
`·7· · · · A.· ·It was a reference by, cited by, or some
`
`·8· ·other citation in another document of this
`
`·9· ·document.
`
`10· · · · Q.· ·From your testimony I take it that you did
`
`11· ·not review, using that term broadly, in preparation
`
`12· ·for today's deposition?
`
`13· · · · A.· ·Certainly not, no.
`
`14· · · · Q.· ·Are you familiar with the term "file
`
`15· ·history" as it relates to patents?
`
`16· · · · A.· ·No.
`
`17· · · · Q.· ·If you would look at the cover page to the
`
`18· ·304 Patent under "Related U.S. Application Data" --
`
`19· ·it's on the left-hand side towards the middle.
`
`20· · · · · · ·Do you see that?
`
`21· · · · A.· ·I do.
`
`22· · · · Q.· ·And if you look -- this describes the
`
`23· ·chain of applications that led to the issuance of
`
`24· ·the 304 Patent, and the earliest application is
`
`25· ·dated October 9, 1997.
`
`22
`
`
`·1· · · · · · ·Do you see that?
`
`·2· · · · A.· ·Yes.
`
`·3· · · · Q.· ·Let me take -- let's go back towards
`
`·4· ·October-ish 1997.
`
`·5· · · · · · ·Can you tell us what your position was at
`
`·6· ·Phoenix during that time period?
`
`·7· · · · A.· ·I can.
`
`·8· · · · Q.· ·Please do.
`
`·9· · · · A.· ·In October of 1997, I was a senior R&D
`
`10· ·engineer with no staff, developing some software
`
`11· ·that was targeted for the Windows NT operating
`
`12· ·system.
`
`13· · · · · · ·DEPOSITION OFFICER:· You said "with no
`
`14· ·staff"?
`
`15· · · · · · ·THE WITNESS:· No staff, yes.
`
`16· · · · · · ·DEPOSITION OFFICER:· Thank you.
`
`17· ·BY MR. NORTH:
`
`18· · · · Q.· ·And this was a continuation of your focus
`
`19· ·on Windows NT software that you described earlier?
`
`20· · · · A.· ·Windows in general, yes.· This particular
`
`21· ·aspect was for NT in particular.
`
`22· · · · · · ·At that point Windows was producing
`
`23· ·several versions of -- Microsoft was producing
`
`24· ·several versions of Windows; NT was one version.
`
`25· · · · Q.· ·Was there a particular aspect of the
`
`23
`
`
`·1· ·Windows NT software that you were focusing on at
`
`·2· ·this point?
`
`·3· · · · A.· ·Yes.· I had previously managed a team that
`
`·4· ·developed software for the PCMCIA connectivity
`
`·5· ·hardware.
`
`·6· · · · · · ·And we had developed it for earlier
`
`·7· ·versions of Windows, and it had sort of reached its
`
`·8· ·maturity.
`
`·9· · · · · · ·And we were thinking -- more than
`
`10· ·thinking -- we were actually developing a version of
`
`11· ·this for NT, which was the -- at the time thought to
`
`12· ·be the follow-on for Windows 3.0.
`
`13· · · · · · ·This was going to be the premier version
`
`14· ·of Windows.
`
`15· · · · Q.· ·Now, you referred to the PCM- -- could you
`
`16· ·spell that out just so again we have it very clear
`
`17· ·on the record?
`
`18· · · · A.· ·Yes.· P, as in "Peter"; C, as in --
`
`19· · · · Q.· ·Charlie.
`
`20· · · · A.· ·-- "Charlie"; M, as in "Mary"; C, as in
`
`21· ·"Charlie"; I, as in "Indigo"; and A, as in "Apple."
`
`22· · · · · · ·This was an industry acronym for PC Memory
`
`23· ·Card Interface Inta-something.· I don't remember
`
`24· ·exactly.
`
`25· · · · · · ·But it was a consortium put together by
`
`24
`
`
`·1· ·several manufacturers of print -- personal
`
`·2· ·computers.· They developed a standard for this
`
`·3· ·interconnection type.· And at that time it was just
`
`·4· ·called PCMCIA.· That was kind of how it was known.
`
`·5· · · · · · ·It evolved into something later called
`
`·6· ·CardBus.· It was an interconnection technology that
`
`·7· ·allowed you to plug in and plug hardware into and
`
`·8· ·out of a system while the system was operational.
`
`·9· ·You didn't have to power down the system.· It was
`
`10· ·kind of a new thing.
`
`11· · · · Q.· ·As I understand it, you had worked on this
`
`12· ·project in connection with Windows 3.0, and now you
`
`13· ·were trying to update, modify it for Windows NT?
`
`14· · · · A.· ·Correct.
`
`15· · · · Q.· ·Were you working -- and I'm focusing on
`
`16· ·the same time period for the next set of questions,
`
`17· ·even though I won't use that every time I ask it.
`
`18· · · · · · ·Were you within a group or subgroup of
`
`19· ·engineers at Phoenix at this time?
`
`20· · · · A.· ·Yes --
`
`21· · · · Q.· ·Okay.
`
`22· · · · A.· ·-- I was.
`
`23· · · · Q.· ·What subgroup was that?
`
`24· · · · A.· ·I don't remember what the group was
`
`25· ·called, honestly, but it was a group that I had
`
`25
`
`
`·1· ·formerly managed.
`
`·2· · · · · · ·And I had expressed to my management my
`
`·3· ·desire to get out of management and do more R&D, and
`
`·4· ·that group was turned over to someone else, and I
`
`·5· ·continued in a consultant capacity to work with that
`
`·6· ·group.
`
`·7· · · · · · ·And this is the basis on which we were
`
`·8· ·developing this NT software.
`
`·9· · · · Q.· ·All right.· Was Mr. Zilmer part of the
`
`10· ·group who was working on the PCMCIA software?
`
`11· · · · A.· ·He -- I believe he was at the time, yes.
`
`12· · · · Q.· ·Had he been part of that group that you
`
`13· ·had managed before, and no longer were managing to
`
`14· ·your desire to be more on the R&D side?
`
`15· · · · A.· ·To some extent, yes.· I believe he joined
`
`16· ·right before that, several months before that.
`
`17· · · · Q.· ·Was Mr. Phan, who is -- I hope I say that
`
`18· ·correctly -- P-h-a-n -- part of that working group
`
`19· ·before you transitioned out of the leadership?
`
`20· · · · A.· ·No.· Quang was in another group in another
`
`21· ·department, and he had been working on some other
`
`22· ·things, and the commonality here was Windows NT.
`
`23· · · · Q.· ·Who did you report to during this time
`
`24· ·period?
`
`25· · · · A.· ·During this time period, I reported to
`
`26
`
`
`·1· ·Rod Williams, who I believe was the director at that
`
`·2· ·time of the department.
`
`·3· · · · · · ·He might have been a senior manager.· I'm
`
`·4· ·not exactly sure, but I know that the charter of the
`
`·5· ·group had been given to him.
`
`·6· · · · Q.· ·And did this department have a name?
`
`·7· · · · A.· ·I don't remember if it did.· I'm sure it
`
`·8· ·did, but I don't remember what it was called.
`
`·9· · · · Q.· ·Putting aside the formality of the title,
`
`10· ·if you had to describe the group in a way that would
`
`11· ·differentiate it from other groups --
`
`12· · · · A.· ·Yes.
`
`13· · · · Q.· ·-- how would you describe it?
`
`14· · · · A.· ·I would say differentiation is important
`
`15· ·here because the rest of the company was working on
`
`16· ·BIOS, ROM-based services that were typically
`
`17· ·customized per customer.
`
`18· · · · · · ·In contrast, this group was working on
`
`19· ·general non-ROM-based software-based -- software· --
`
`20· ·yeah, software-based products that had little or
`
`21· ·nothing to do with the ROM.· It was a separate
`
`22· ·business unit.
`
`23· · · · · · ·And the markets were -- the markets were
`
`24· ·dissimilar but they shared customers; customers had
`
`25· ·interest in both areas.
`
`27
`
`
`·1· · · · Q.· ·Is it correct that the focus of this group
`
`·2· ·was not on BIOS technology?
`
`·3· · · · A.· ·Yes.
`
`·4· · · · Q.· ·Mr. Zilmer yesterday referred to that
`
`·5· ·group as a consulting group, was his label.· Is that
`
`·6· ·a term or phrase that would make sense from your
`
`·7· ·perspective?
`
`·8· · · · · · ·And, again, you don't need to adopt it.
`
`·9· ·I'm just giving you that as a reference point.
`
`10· · · · A.· ·I'm not sure if I would use that term. I
`
`11· ·would say that someone just joining the company
`
`12· ·might view that -- that group as having that
`
`13· ·function.
`
`14· · · · · · ·But as someone who sort of built that
`
`15· ·group and operated it for some time, I viewed it
`
`16· ·more as a new business direction that the company
`
`17· ·seemed to want to go into and that they were willing
`
`18· ·to spend some money and time in that area.
`
`19· · · · · · ·But to the extent that we consulted with
`
`20· ·other groups, Matt would be correct.· We did do
`
`21· ·consulting work for other groups, but we -- we did
`
`22· ·have products that we were trying to develop
`
`23· ·separate from the BIOS groups.
`
`24· · · · Q.· ·Was there a chief technology officer
`
`25· ·during this time period, that you were aware of?
`
`28
`
`
`·1· · · · A.· ·No, I'm not aware of that.· There may have
`
`·2· ·been one, but I'm not aware of that.
`
`·3· · · · Q.· ·Mr. Zilmer referred to a Mr. Winters who
`
`·4· ·he interacted with during this time period.
`
`·5· · · · · · ·Were you familiar with someone named
`
`·6· ·Winters?
`
`·7· · · · A.· ·Yes, I -- I was.
`
`·8· · · · Q.· ·Okay.· Best of your recollection, what was
`
`·9· ·Mr. Winters' position during this time period?
`
`10· · · · A.· ·Gayn Winters, to me, was someone very
`
`11· ·close to the upper management of Phoenix who was
`
`12· ·consulting or advising the business side of where to
`
`13· ·go.
`
`14· · · · · · ·I did not have any interaction, to my
`
`15· ·knowledge, with him.
`
`16· · · · Q.· ·Just for recognizing you don't remember a
`
`17· ·specific title for that working group you were a
`
`18· ·part of, is there a label we can use today for it so
`
`19· ·I don't need to -- that we can have a common
`
`20· ·understanding when I'm queuing questions?
`
`21· · · · A.· ·When I managed the group it was called the
`
`22· ·PCMCIA Group, and that's a lousy name, but that's
`
`23· ·what we were called.
`
`24· · · · Q.· ·All right.· Then at least for today's
`
`25· ·purposes, if I use PCMCIA as a label for that group
`
`29
`
`
`·1· ·you were a part of --
`
`·2· · · · A.· ·Yeah.
`
`·3· · · · Q.· ·-- will we have a common understanding as
`
`·4· ·to what I'm referring to?
`
`·5· · · · A.· ·We will.
`
`·6· · · · Q.· ·Okay.· Thank you.
`
`·7· · · · · · ·And Mr. Williams, who you referenced, was
`
`·8· ·in charge of PCMCIA at this point?
`
`·9· · · · A.· ·I don't recall that being that -- set up
`
`10· ·that way.
`
`11· · · · Q.· ·Did he have any responsibility for PCMCIA
`
`12· ·during this period?
`
`13· · · · A.· ·I don't know.
`
`14· · · · Q.· ·If we can -- strike that.
`
`15· · · · · · ·Looking back to the cover page for Zilmer
`
`16· ·Exhibit Number 2, which is in front of you,
`
`17· ·Mr. Galasso, we had looked at the
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