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ROUGH DRAFT TRANSCRIPT OF DEPOSITION OF E. FITZGERALD MAY 6 2016.txt
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` 1 *** UNCERTIFIED ROUGH DRAFT TRANSCRIPT ***
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` 2 REALTIME ROUGH DRAFT AND
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` 3 UNCERTIFIED TRANSCRIPT
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` 4
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` 5 The following file is not an official
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` 6 transcript. It is intended only to aid in case
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` 7 preparation. The final transcript will be different,
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` 8 both in form and substance, from this rough draft
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` 9 translation.
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` 10 You may see errors and omissions during
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` 11 the realtime translation. This is not an unusual
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` 12 process, and these errors and omissions will be
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` 14 Please do not try to bring these discrepancies to the
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` 15 attention of the reporter during the course of the
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` 16 deposition.
`
` 17 UNOFFICIAL DRAFT TRANSCRIPT
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` 18 THIS IS AN UNOFFICIAL DRAFT TRANSCRIPT!
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` 19
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` 20 This transcript has not been checked,
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` 23 As such, it may contain computer-generated
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` 24 mistranslations of stenotype code, resulting in
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` 1 *** UNCERTIFIED ROUGH DRAFT TRANSCRIPT ***
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` 2 inaccurate or nonsensical word combinations or
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` 3 untranslated stenotype symbols which cannot be
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`Raytheon2070-0001
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`Sony Corp. v. Raytheon Co.
`IPR2015-01201
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`ROUGH DRAFT TRANSCRIPT OF DEPOSITION OF E. FITZGERALD MAY 6 2016.txt
` 4 deciphered by non-stenotypists.
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` 5 Corrections will be made in the
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` 6 preparation of the certified transcript, resulting in
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` 7 differences in page and line numbers, punctuation and
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` 8 formatting.
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` 9 THIS DRAFT TRANSCRIPT IS SUPPLIED TO YOU
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` 10 ON THE CONDITION THAT UPON RECEIPT OF THE CERTIFIED
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` 11 TRANSCRIPT, THIS DRAFT AND ANY COPIES THEREOF (IN
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` 12 CONDENSED FORMAT OR OTHERWISE) WILL BE DESTROYED.
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` 13 THE CERTIFIED TRANSCRIPT IS THE ONLY
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` 14 OFFICIAL TRANSCRIPT WHICH MAY BE RELIED UPON FOR
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` 15 PURPOSES OF VERBATIM CITATION OF TESTIMONY. THANK
`
` 16 YOU.
`
` 17
`
` 18 DINA G. MANCILLAS, CSR, RPR, CRR, CLR
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` 19 Cell: (630) 450-7354
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` 20 E-mail: koukla11469@gmail.com
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` 21
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` 22
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` 23
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` 24
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` 3
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` 4 (The witness was duly sworn.)
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` 5 EUGENE A. FITZGERALD, PH.D.,
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` 6 called as a witness herein, having been first duly
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` 7 sworn, was examined and testified as follows:
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` 8 EXAMINATION
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` 9 BY MR. SMITH:
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`ROUGH DRAFT TRANSCRIPT OF DEPOSITION OF E. FITZGERALD MAY 6 2016.txt
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` 10 Q. So, Dr. Fitzgerald, good morning.
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` 11 Thank you for coming?
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` 12 A. Good morning.
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` 13 Q. Could you just spell your full name for
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` 14 the record?
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` 15 A. Spell it letter by letter?
`
` 16 Q. If you would.
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` 17 A. Yeah. All right. It's E-u-g-e-n-e, A,
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` 18 which is for Arthur, Fitzgerald,
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` 19 F-i-t-z-g-e-r-a-l-d.
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` 20 Q. Great?
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` 21 A. Officially a junior, Jr.
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` 22 Q. Do you know any other Eugene A.
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` 23 Fitzgeralds that are active in your field?
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` 24 A. No.
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` 2 Q. Have you ever had your deposition taken
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` 3 before?
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` 4 A. Yes.
`
` 5 Q. How many times, do you think?
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` 6 A. One time.
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` 7 Q. Was it in an interparty's review or --
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` 8 A. It was -- it was for a case that went
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` 9 to trial.
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` 10 Q. So a district court litigation, patent
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` 11 case?
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` 12 A. Yes.
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` 13 Q. You understand you're under oath,
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` 14 right?
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` 15 A. Yes.
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` 16 Q. Great. I'm going to ask you questions,
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` 17 typical procedure, if you don't understand
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` 18 something, ask me to clarify, if you would.
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` 19 Do you have any medical issues or
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` 20 anything that would prevent you from testifying
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` 21 fully, completely, accurately today?
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` 22 A. Only that it's my anniversary. No.
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` 23 I'm just joking.
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` 24 Q. Can't tell the truth on your
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` 2 anniversary?
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` 3 A. Yeah. It actually is, but anyway. So
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` 4 it's my sacrifice to you guys.
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` 5 Q. Thank you very much.
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` 6 A. All right.
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` 7 Q. Any reason you would need to take
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` 8 additional breaks or anything like that?
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` 9 A. No.
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` 10 Q. Great. Do you understand that for this
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` 11 particular procedure, during the cross
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` 12 examination, during breaks, you can't talk to
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` 13 anybody about the substance of the deposition?
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` 14 A. Yes.
`
` 15 Q. Good. Now, I have given you a copy of
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` 16 Exhibit 2019.
`
` 17 Is this a declaration signed by you?
`
` 18 A. It looks like my declaration. Yeah. I
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` 19 assume it's -- if you say so. Do you want me to
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` 20 look at my signature or --
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` 21 Q. If you're comfortable with it, that's
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` 22 fine with me.
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` 23 A. Yeah. I'm sure -- there it is.
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` 24 There's my signature. Yes, it is.
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` 2 Q. And just to confirm, this is about U.S.
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` 3 patent number 5,591,678?
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` 4 A. Yes.
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` 5 Q. And I've given you a copy of
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` 6 Exhibit 1001 which is that patent?
`
` 7 A. Yes.
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` 8 Q. And if I refer to that as "the '678
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` 9 patent," is that all right? You know what I'm
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` 10 talking about?
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` 11 A. That's fine. Yes.
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` 12 Q. Good. Are you an expert in the field
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` 13 of the '678 patent?
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` 14 A. Yes.
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` 15 Q. Do you keep up-to-date on new
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` 16 developments in the field?
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` 17 A. Yes.
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` 18 Q. And is that true -- has that been true
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` 19 throughout your career?
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` 20 A. Sure. I mean, my area is pretty broad
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` 21 from heteroepitaxy all the way up to this kind of
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` 22 topic, yes.
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` 23 Q. Semiconductor fabrication in general?
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` 24 A. Yes.
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` 2 Q. There's a CV at the end of your
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` 3 declaration, is there not, or at least a short
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` 4 one?
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` 5 A. Yes. Appendix 1.
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` 6 Q. And at the end of appendix 1, there's
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` 7 the section entitled "publications and patents."
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` 8 Do you see that?
`
` 9 A. Yes.
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` 10 Q. And it says there are more than 300
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` 11 published technical articles and more than 100
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` 12 patents --
`
` 13 A. Yes.
`
` 14 Q. Those are things that you've published?
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` 15 A. Well, I'm co-authors on over 300. So
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` 16 you probably know the academic thing where a lot
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` 17 of my publications is, I'm the last author because
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` 18 I'm the PI, the principal investigator, for those
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` 19 researches.
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` 20 Back at Bell Labs, you see my name as
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` 21 first because you know, I'm the direct researcher
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` 22 involved.
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` 23 Q. So if your name is first, you're more
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` 24 directly involved in the research --
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` 2 A. In our field, that's how it goes.
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` 3 Yeah.
`
` 4 Q. Let me ask it again. So if your name
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` 5 is first on a publication, not talking patents
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` 6 now, but if your name was first on a technical
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` 7 article, that means you were more directly
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` 8 involved where as if it was last, that means you
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` 9 were less directly involved?
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` 10 A. No. I mean, it means that
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` 11 academically, when you're in university, the
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` 12 professor's name usually goes last and the people
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` 13 like your graduate students go first.
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` 14 Q. Now, how long have you been publishing?
`
` 15 What's the span of your career during which you've
`
` 16 been publishing?
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` 17 A. 1985.
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` 18 Q. So that's about 31 years?
`
` 19 A. Something like that, yeah.
`
` 20 Q. Or 400 publications and patents, right?
`
` 21 A. Well, 300 technical articles -- over
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` 22 that, actually, yeah, and in domestic and
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` 23 international patents, over a hundred. Yeah.
`
` 24 Q. So maybe one a month or so?
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` 2 A. Yeah, if you can do the math, yeah.
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` 3 Q. How can you be involved substantively
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` 4 in those publications at that rate of publication,
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` 5 given everything else you're doing?
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` 6 A. It's easy. I mean, it depends on your
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` 7 peaks of productivity. So it's not an even thing,
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` 8 right?
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` 9 So I've been fortunate to discover some
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` 10 really important things along the way. And so
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` 11 what happens is, there's a lot of collaboration
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` 12 and a lot of productivity spikes and then all that
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` 13 comes out in a series of patents and publications.
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` 14 And then there's pauses in between, but
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` 15 you can all look it up in the -- it's easy to
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` 16 track in the web of science.
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` 17 Q. There are some publications, right,
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` 18 where your name would be listed on as an author
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` 19 where you maybe didn't know what the content was
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` 20 before it was published?
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` 21 A. What do you mean by you didn't know
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` 22 what the content was?
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` 23 Q. You didn't understand it before it was
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` 24 published? You hadn't read it, for example?
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` 2 A. Well, I think there are publications
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` 3 whereas an advisor, you focus on what the
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` 4 publication is about. And so you focus on the key
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` 5 items that the student is referring to.
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` 6 So when you review that type of thing,
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` 7 you focus on the main issues, right? So, you
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` 8 know, for example, correcting language and looking
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` 9 at experimental things that I know happened or
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` 10 whatever.
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` 11 I don't necessarily review those very,
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` 12 you know, tightly, but, you know, I want to make
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` 13 sure that the students are getting their main
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` 14 messages out in the proper way.
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` 15 Q. Right. So would you make sure it was
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` 16 accurate at least at a high level or --
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` 17 A. Yeah. The main points, like I was
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` 18 saying.
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` 19 Q. I see. In paragraph 32 of your
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` 20 declaration, if you turn to that for a second,
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` 21 there's a section called "relevant time frame."
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` 22 Do you see that?
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` 23 A. Let's see. Where are you now?
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` 24 Q. Paragraph 32.
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` 2 A. Oh, paragraph 32.
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` 3 Q. Do you want me to use the page numbers?
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` 4 A. Oh, no, no. That's fine. I just had
`
` 5 to put that in my mind.
`
` 6 Okay. Yeah.
`
` 7 Q. When is the relevant time frame, in
`
` 8 your opinion?
`
` 9 A. So what I'm saying here is that this
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` 10 declaration is early '90s. I'm also referring
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` 11 specifically to the references here where I just
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` 12 scanned these dates out of these references and
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` 13 used them because there's other people that have
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` 14 kind of researched and attached claims to a
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` 15 particular inventive dates.
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` 16 And so I'm referencing those
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` 17 publications, but, you know, I'm not doing that
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` 18 work. I'm just using those references. And --
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` 19 but as I say here, you know, I'm thinking about
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` 20 the POSITA.
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` 21 And when I say "POSITA," that's person
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` 22 of ordinary skill in the art, P-O-S-I-T-A, or
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` 23 hypothetical, if you -- whatever.
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` 24 And so in general, I'm talking about
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` 2 the early '90s for this kind of technical work.
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` 3 Q. So early '90s being what time frame in
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` 4 particular?
`
` 5 A. Well, I think I say that in here.
`
` 6 Let's see. Well. I said approximately early
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` 7 1990s.
`
` 8 Q. So is your set of opinions about the
`
` 9 '678 patent directed to the time frame before the
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` 10 invention or slightly after the invention or both?
`
` 11 A. Can you repeat that again? What --
`
` 12 Q. Is your set of opinions in this
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` 13 declaration --
`
` 14 A. Yes.
`
` 15 Q. -- about the '678 patent directed to
`
` 16 the time frame before the invention, after the
`
` 17 invention or both POSITA?
`
` 18 MR. FILARSKI: Objection, calls for a
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` 19 legal conclusion.
`
` 20 THE WITNESS: So what does that mean
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` 21 now?
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` 22 MR. SMITH: You can answer.
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` 23 BY THE WITNESS:
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` 24 A. Yeah. So I mean, what I understand is
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` 2 that I am tasked with looking at a person of
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` 3 ordinary skill in the art around this time period.
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` 4 Of course that means that if I'm doing that work
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` 5 in the early '90s, that doesn't mean I ignore
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` 6 things from the '80s because I have that
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` 7 information embodied. So I'm just looking for a
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` 8 person of ordinary skill in the art at the time of
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` 9 the invention.
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` 10 BY MR. SMITH:
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` 11 Q. What is the significance of the
`
` 12 relevant time frame?
`
` 13 A. Well, because that's when you can
`
` 14 determine whether things are patentable, whether
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` 15 things are inventive or obvious or whatever.
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` 16 Q. So this is, you know, a case about
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` 17 obviousness in some respects, and this is going to
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` 18 come up a lot. If I refer to the relevant time
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` 19 frame, can we just agree it's what you've stated
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` 20 it is in your declaration?
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` 21 A. What I say in my declaration, sure, on
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` 22 Page 12, yeah.
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` 23 Q. Great. I'm just going to use a
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` 24 shorthand announcing it to you. I don't want to
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` 2 repeat what you've said in paragraph 32 each time
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` 3 in a question because it gets a little bit
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` 4 cumbersome?
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` 5 A. Okay.
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` 6 Q. Great. Is the '678 patent valid, in
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` 7 your opinion?
`
` 8 A. The Bendik patent that we're referring
`
` 9 to, yes.
`
` 10 Q. Is there anything surprising in the
`
` 11 '678 patent from a technical perspective?
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` 12 A. What do you mean by surprising?
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` 13 Q. The normal usage of the word.
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` 14 A. Well, if surprising is inventive, yes.
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` 15 I mean, that's how I would look at it from an
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` 16 inventor point of view since I have invented. So
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` 17 usually surprise, you could say is inventive. If
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` 18 that's what you want to define it.
`
` 19 Q. So you're defining surprising here as
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` 20 meeting the requirements for receiving a patent
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` 21 essentially?
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` 22 MR. FILARSKI: Objection. You can
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` 23 answer.
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` 24
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` 2 BY THE WITNESS:
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` 3 A. I think when you look at a patent,
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` 4 right, the inventive elements are where the
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` 5 inventors have said, oh, you know, there's some
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` 6 very surprising things here that allow us to do
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` 7 something inventive."
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` 8 BY MR. SMITH:
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` 9 Q. And are those things present in the
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` 10 '678 patent?
`
` 11 A. Sure.
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` 12 Q. What are they?
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` 13 A. Well, I think one of the key ones is
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` 14 this early idea of stacking chips in 3D, which
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` 15 they were driven to, as I mention in my
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` 16 declaration here, by UV applications, imagers.
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` 17 And having done a lot of that work
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` 18 myself, it's not easy. And so doing it so early
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` 19 and being able to flip these things over, remove
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` 20 substrate and have high yield for the applications
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` 21 you're talking about here is impressive.
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` 22 Q. Did they mention the yield in the '678
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` 23 patent?
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` 24 A. No.
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` 2 Q. How do you know they had high yield?
`
` 3 A. Well, because I'm familiar with the DOD
`
` 4 imaging area.
`
` 5 Q. So you're not talking about the
`
` 6 inventors in particular; you're talking about the
`
` 7 field as a whole?
`
` 8 A. Well, an intention sits in the field,
`
` 9 right?
`
` 10 So if they're able to flip this over
`
` 11 and have this process they talk about here and it
`
` 12 creates a field of -- of imagers like that,
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` 13 that's --
`
` 14 Q. Yeah. I just wanted to -- sorry. I
`
` 15 didn't mean to interrupt you. Go ahead.
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` 16 A. Yeah. No. Okay.
`
` 17 Q. I just wanted to be clear whether you
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` 18 were talking about some specific knowledge you had
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` 19 about the inventors working on the patent or
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` 20 whether you were talking more in general.
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` 21 A. Yeah. So the field is general. And
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` 22 I'm talking about the inventive elements in '678
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` 23 for producing those structures.
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` 24 Q. Do you know anything specifically about
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` 2 the yields the inventors obtained in anything they
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` 3 might have made?
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` 4 A. In what stage?
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` 5 Q. Any stage. Do you know anything about
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` 6 yield that the inventors might have obtained?
`
` 7 A. Well, typically in the early stage,
`
` 8 when you file patents, right, you believe you're
`
` 9 going to have higher yield because of the way that
`
` 10 the invention goes.
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` 11 And then really, the rest of the field
`
` 12 after that point determines whether that's valid
`
` 13 or not. You can't always tell in super high
`
` 14 volume at the time of the invention what's going
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` 15 to happen.
`
` 16 Q. Do you know anything specific about
`
` 17 what yields the inventors obtained for anything?
`
` 18 A. Only what they have in the document.
`
` 19 Q. The document being the '678 patent?
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` 20 A. Yes.
`
` 21 Q. Can you go to Claim 1 of the '678
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` 22 patent?
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` 23 A. Yes.
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` 24 Q. Do you believe a person of ordinary
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` 2 skill in the art in the relevant time frame could
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` 3 have carried out the steps of Claim 1 of the '678
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` 4 patent?
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` 5 A. Yes, with the supporting specification.
`
` 6 Q. Do you understand that Claim 1 allows
`
` 7 additional steps to be carried out even if they're
`
` 8 not expressly recited in the claims?
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` 9 MR. FILARSKI: Objection; calls for a
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` 10 legal conclusion.
`
` 11 BY THE WITNESS:
`
` 12 A. You have to tell me specifically what
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` 13 you're talking about.
`
` 14 BY MR. SMITH:
`
` 15 Q. Did you have --
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` 16 A. Like give me an example.
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` 17 Q. Did you have an understanding when you
`
` 18 were writing this declaration that steps in
`
` 19 addition to those expressly listed in Claim 1
`
` 20 could be carried out and still meet the language
`
` 21 in Claim 1?
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` 22 MR. FILARSKI: Same objection.
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` 23 BY THE WITNESS:
`
` 24 A. Well, this is comprising, right? So
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` 2 comprising means that it only has to have these --
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` 3 this -- these pieces of the claim, the scope of
`
` 4 the claim, but there could be other things
`
` 5 happening present throughout.
`
` 6 BY MR. SMITH:
`
` 7 Q. What's your understanding of the
`
` 8 forming step?
`
` 9 A. So I'll just read it so that we all
`
` 10 know -- so, "Forming a microelectronic circuit
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` 11 element in the exposed side of the wafer of the
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` 12 first substrate opposite to the side underlying
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` 13 the etch-stop layer."
`
` 14 So if we go through the whole thing, I
`
` 15 furnish a first substrate having an etchable layer
`
` 16 and an etch-stop layer overlay, that's like the
`
` 17 SOI substrate, the way I look at it, but you form
`
` 18 a microelectronic circuit element in the exposed
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` 19 side of the wafer of the first substrate.
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` 20 So it's building a microelectronic
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` 21 circuit on that side. And then you attach that
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` 22 wafer and remove the original substrate. So
`
` 23 that's the way I -- I interpret that.
`
` 24 Q. The -- how does the forming step
`

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` 20
`
` 1 *** UNCERTIFIED ROUGH DRAFT TRANSCRIPT ***
`
` 2 typically happen? I'm not trying to pin you down
`
` 3 on the claim language. I'm just asking generally,
`
` 4 how does one form a microelectronic element?
`
` 5 A. Yeah. A series of processes in a fab
`
` 6 to make a circuit.
`
` 7 Q. How do you do that, just generally?
`
` 8 A. Well, I reference several, you know,
`Page 16
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`Raytheon2070-0016
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`

`
`ROUGH DRAFT TRANSCRIPT OF DEPOSITION OF E. FITZGERALD MAY 6 2016.txt
`
` 9 classic references in here, like, VLSI by Sze,
`
` 10 which is probably are the ones for undergraduate,
`
` 11 and so there's many steps.
`
` 12 I mean, you start with wafers, and you
`
` 13 deposit layers on them. I mean, typically, you
`
` 14 know, what's been shown in microelectronics is to
`
` 15 do a sequence of lithography steps, different
`
` 16 processes within them, and you build an electronic
`
` 17 circuit.
`
` 18 Q. So you add layers on --
`
` 19 A. Most processes are additive, but
`
` 20 they're subtractive steps.
`
` 21 Q. I see. Is the top surface of that
`
` 22 wafer generally the top surface that began with or
`
` 23 have you added stuff to it in that process?
`
` 24 A. What -- what surface are you talking
`

`
` 21
`
` 1 *** UNCERTIFIED ROUGH DRAFT TRANSCRIPT ***
`
` 2 about?
`
` 3 Q. The top surface of the wafer referred
`
` 4 to in the claims.
`
` 5 MR. FILARSKI: Objection; relevance,
`
` 6 calls for a legal conclusion.
`
` 7 BY THE WITNESS:
`
` 8 A. So -- so it says forming a
`
` 9 microelectronic circuit element in the exposed
`
` 10 side of the wafer the first substrate. So I'm
`
` 11 picturing on that first exposed surface this
`
` 12 microelectronics circuit being formed on it.
`
` 13 BY MR. SMITH:
`
`Page 17
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`Raytheon2070-0017
`
`

`
`ROUGH DRAFT TRANSCRIPT OF DEPOSITION OF E. FITZGERALD MAY 6 2016.txt
` 14 Q. On it?
`
` 15 A. Yeah.
`
` 16 Q. Can you read claim 2 for a second? And
`
` 17 in particular, I'm wondering what the word
`
` 18 "patterning" means there.
`
` 19 MR. FILARSKI: Objection; calls for a
`
` 20 legal conclusion.
`
` 21 BY THE WITNESS:
`
` 22 A. All right. It says, "The method of
`
` 23 Claim 1 further including an additional step after
`
` 24 the step of etching of patterning the etch-stop
`

`
` 22
`
` 1 *** UNCERTIFIED ROUGH DRAFT TRANSCRIPT ***
`
` 2 layer."
`
` 3 And what's your question?
`
` 4 BY MR. SMITH:
`
` 5 Q. What does the word "patterning" mean to
`
` 6 you?
`
` 7 MR. FILARSKI: Same objection.
`
` 8 BY THE WITNESS:
`
` 9 A.

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