`
` UNITED STATES PATENT & TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BUNGIE, INC., )
` )
` Petitioner, )
` )
` VS. ) Volume I
` ) Pages 1 - 195
`WORLDS INC., )
` )
` Patent Owner. )
`_____________________________)
`
` DEPOSITION OF MARK D. PESCE
` Los Angeles, California
` Monday, May 16, 2016
`
`(Case IPR2015-01264 Patent 7,945,856; IPR2015-01268,
`Patent 7,493,558; IPR2015-01268, Patent 7,181,690;
`IPR2015-01310, Patent 8,082,501; and IPR2015-01321
`and IPR2015-1325, Patent 8,145,998)
`
`Job No. 107024
`Reported by: NIKKI ROY
` CSR No. 3052
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`0001
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`BUNGIE - EXHIBIT 1046
`Bungie, Inc. v. Worlds Inc. - IPR2015-01264, -01268, -01269, -01319, -01321, & -01325
`
`
`
`Page 2
` Deposition of MARK D. PESCE, taken on behalf of
`the Petitioner, at 633 West Fifth Street,
`15th Floor, Los Angeles, California, on Monday,
`May 16, 2016 at 10:05 a.m., before NIKKI ROY, CSR
`No. 3052.
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`Page 3
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`APPEARANCES OF COUNSEL:
`
`FOR THE PETITIONER:
` WILSON SONSINI GOODRICH & ROSATI
` BY: MATTHEW ARGENTI, Attorney at Law
` 650 Page Mill Road
` Palo Alto, California 94304
`
` - AND -
`
` WILSON SONSINI GOODRICH & ROSATI
` BY: ANDREW BROWN, Attorney at Law
` 701 Fifth Avenue
` Seattle, Washington 98104
`
`FOR THE PATENT OWNER:
` DAVIDSON BERQUIST JACKSON & GOWDEY
` BY: WAYNE HELGE, Attorney at Law
` 8300 Greensboro Drive
` McLean, Virginia 22102
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`Page 4
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` I N D E X
`
`WITNESS EXAMINATION PAGE
`MARK D. PESCE
` MR. ARGENTI 7, 81
`
` E X H I B I T S
`
`NUMBER DESCRIPTION PAGE
`Exhibit 2038 Declaration of Mark D. Pesce, 11
` IPR2015-01264, IPR2015-01268,
` IPR2015-01269, IPR2015-01319,
` IPR2015-01321, IPR2015-01325
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`Exhibit 1041 Psychedelics and Creation of 45
` Virtual Reality
`Exhibit 1042 CyberSamhain Invitation 57
`Exhibit 2016 Deposition of Michael Zyda, 83
` DSC
`
`Exhibit 1010 Microsoft Press Computer 90
` Dictionary Third Edition
`Exhibit 1001 United States Patent 93
` No.7,181,690, IPR2015-01268
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`Exhibit 1001 United States Patent No. 96
` 8,082,501, IPR2015-01319
`Exhibit 1002 Declaration of Michael Zyda, 141
` D.S.C.
`
`Exhibit 1001 United States Patent No. 154
` 7,945,856, IPR2015-01268
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` I N D E X (CONTINUED):
`
` EXHIBITS (CONTINUED):
`NUMBER DESCRIPTION PAGE
`Exhibit 1005 Ring: A Client-Server System 174
` for Multi-User Virtual
` Environments, by Thomas A.
` Funkhouser
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` I N D E X (CONTINUED):
`
` QUESTIONS INSTRUCTED NOT TO ANSWER
` None
`
` INFORMATION REQUESTED
`
` None
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` LOS ANGELES, CALIFORNIA, MONDAY, MAY 16, 2016
` 10:05 A.M.
`
`Page 7
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` MARK D. PESCE
` called as a deponent and sworn in by
` the deposition officer, was examined
` and testified as follows:
`
` EXAMINATION
` BY MR. ARGENTI:
` Q. Good morning.
` A. Good morning.
` Q. Could you please state your name for the
` record.
` A. Mark Domenic Pesce.
` Q. And what is your address?
` A. Fifty Rose Street, Chippendale, New South
` Wales, 2008, Australia.
` Q. You traveled a long way.
` A. Yes.
` Q. Thank you.
` Have you ever been deposed before today?
` A. Yes.
` Q. About how many times?
` A. Once.
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` Q. And when was that?
` A. 1995 or '6.
` Q. So since it's been a while let's run through
` some of the ground rules for the deposition in this
` proceeding.
` You understand that you are providing your
` testimony under oath and you're expected to tell the
` truth today?
` A. Yes.
` Q. Is there any reason you cannot provide
` complete and accurate testimony here?
` A. No.
` Q. Hopefully my questions will be clear. If
` you don't understand any question, please let me know
` that it's unclear.
` Under the guidelines for this proceeding,
` you must ask me for any clarification. If you do not
` tell me otherwise, I will assume that you understand
` the question. Okay?
` A. Yes.
` Q. And please provide verbal answers rather
` than nodding your head for the benefit of the
` reporter and the record.
` A. Understood.
` Q. We can take a break at any time you would
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` like one as long as there is not a question pending.
` Do you understand?
` A. Understood.
` Q. Are you being compensated for your testimony
` in this proceeding?
` A. Yes.
` Q. Who is providing that compensation?
` A. Worlds.
` Q. That's Worlds, Inc.?
` A. Worlds, Inc.
` Q. Is all your compensation in this matter
` being paid at the hourly rate set forth in your
` declaration?
` A. No.
` Q. So your declaration at paragraph 20, I
` believe, says you're being compensated at a rate of
` $450 an hour?
` A. Correct.
` Q. Is there additional compensation beyond
` that?
` A. During the period of the deposition, I'm
` being compensated at the rate of $600 an hour.
` Q. And does that include preparation for the
` deposition or just testimony time?
` A. Just testimony time.
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` Q. Are you receiving any compensation in the
` form of stock or other equity?
` A. No.
` Q. How much have you billed Worlds to date for
` your work in this matter?
` A. Just a little bit under $43,000.
` Q. And does that include preparing for and
` appearing at this deposition?
` A. It includes preparing for. It does not
` include appearing at this deposition.
` Q. Have you ever worked as an expert in a
` patent case before this?
` A. Yes.
` Q. Was that in conjunction with the one
` deposition you mentioned?
` A. No.
` Q. How many times have you worked as an expert
` in a patent case?
` A. Just once.
` Q. Who were the parties in that case?
` A. This was in 2005. I know that the
` defendants were basically every video game
` manufacturer in existence. The plaintiff was the
` owner of a fundamental patent in 3-D. I don't
` remember the exact name of the plaintiff.
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` Q. And who were you working for in that case?
` A. The plaintiff.
` Q. But you don't remember the name of the
` company that hired you?
` A. I was working for a law firm in Dallas, and
` I was hired by them on behalf of the client.
` Q. Do you remember the name of the law firm?
` A. I do not.
` Q. Do you remember the name of any of the
` attorneys that were involved?
` A. No.
` Q. Okay. Have you ever been a witness in
` litigation that was not a patent case?
` A. No.
` (Exhibit 2038 Declaration of Mark D.
` Pesce, IPR2015-01264, IPR2015-01268,
` IPR2015-01269, IPR2015-01319,
` IPR2015-01321, IPR2015-01325,
` introduced at deposition as of this
` date.)
` BY MR. ARGENTI:
` Q. Mr. Pesce, I've just handed you what's been
` marked as Exhibit 2038 in the lower right-hand
` corner.
` Do you see that?
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` A. Yes.
` Q. Okay. Do you recognize this document?
` A. Yes.
` Q. What is it?
` A. This is my declaration in this case.
` Q. This declaration was submitted in support of
` Worlds, Inc.'s patent owner response in six
` inter partes review proceedings, correct?
` A. Correct.
` Q. So I won't run through all the case numbers,
` but those are the six IPRs that were filed by Bungie
` against Worlds' patents, correct?
` A. That's my understanding.
` Q. You submitted the identical declaration in
` all six IPRs; is that correct?
` A. Yes.
` Q. Just to clarify one thing for the record,
` your declaration is marked in the footer of the
` document as Exhibit 2038, but the exhibit list in the
` patent owner response refers to it as Exhibit 2017,
` and there's another declaration in the case that's
` marked as Exhibit 2038 and it's the declaration of
` Conor Laffan. So I think that may be a footer -- a
` typo in the footer of your declaration.
` You may not be aware of the typo, but I just
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` wanted to clear that up today as to what the proper
` exhibit number for this document is.
` MR. ARGENTI: Does it sound right that it
` would be -- it's cited as Exhibit 2017 in -- in
` patent owner's exhibit list.
` MR. HELGE: Yeah. If this -- if this is the
` copy that was filed in every case --
` MR. ARGENTI: Right.
` MR. HELGE: -- then I'm sure that that is an
` error on our part.
` MR. ARGENTI: Okay.
` MR. HELGE: Do you know which case this was
` pulled from?
` MR. ARGENTI: This is the 125 case, which
` is -- refer to the cheat sheet -- one of the '998
` cases.
` MR. HELGE: Right.
` MR. ARGENTI: Maybe we can take a look at
` that off the record and see if there's any additional
` cleaning up that needs to be done.
` MR. HELGE: I'm fairly certain -- I'll have
` to check the other cases, but my understanding was
` that we filed the same exhibit. I think if we were
` to match up the paragraph numbers in this and the
` paragraph numbers cited in the response, I'm fairly
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` certain that this should be 2017.
` MR. ARGENTI: Actually, I think the response
` refers to it consistently -- it's consistently in the
` body of the response as Kidrin -- sorry -- Pesce
` declaration, so that doesn't help much.
` It's more about comparing the number marked
` on the exhibit versus the exhibit list.
` THE WITNESS: Mr. Argenti, may I make a
` small correction to my testimony?
` BY MR. ARGENTI:
` Q. Of course.
` A. It had occurred to me, although it was not
` in America, in Australia I was asked two years ago to
` provide an expert assessment in a defamation lawsuit
` that had to do with Facebook and someone had defamed
` someone else. And Australia's defamation laws are
` very strong, and this was a first-of-kind case and I
` was asked to provide, and it went to trial and before
` I was going to be a witness in the trial, it was all
` settled.
` Q. Oh, okay.
` A. And that would have been in 2014 when that
` happened.
` Q. Thanks for that clarification.
` Were you deposed in that case?
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` A. No.
` Q. Turning back to your declaration. Who wrote
` this document?
` A. This document was, I think, drafted in a
` first draft by Mr. Helge and I went through it then
` line by line and made additions and corrections and
` recommendations in a collaborative process.
` Q. Okay. And to the best of your knowledge,
` what was the process for Mr. Helge drafting that
` first declaration?
` MR. HELGE: Object to form.
` BY MR. ARGENTI:
` Q. Let me rephrase that.
` Did you have any conversations with
` Mr. Helge before you received the first draft of your
` declaration?
` MR. HELGE: I'm going to instruct the
` witness to answer the question, which I believe is a
` yes or no question, without revealing the content of
` those communications.
` THE WITNESS: Yes.
` BY MR. ARGENTI:
` Q. Did you contribute to the content of the
` first draft of your declaration?
` A. Yes.
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` Q. Did you carefully review this declaration to
` ensure its accuracy?
` A. Yes.
` Q. Sitting here today, do you believe the
` declaration is accurate?
` A. Yes.
` Q. Is there anything about your declaration
` that you'd like to modify or correct?
` A. No.
` Q. Did you do anything to prepare for this
` deposition?
` A. Yes.
` Q. Did you review your declaration?
` A. Yes.
` Q. Did you review any other documents?
` A. Yes.
` Q. What documents did you review?
` A. '690 patent, the '558 patent -- no, wait.
` I'm sorry. The '501 patent. The '998 patent. There
` are so many numbers. My declaration, Funkhouser '95,
` Funkhouser '93 and Durward. I believe that's all of
` them.
` Q. Did you review the '856 patent in
` preparation for your deposition?
` A. I don't recall that I did.
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` Q. Did you review the '558 patent in
` preparation for your deposition?
` A. I don't recall that I did.
` Q. Did you meet with anyone to prepare for your
` deposition?
` A. Yes.
` Q. Who?
` A. Mr. Helge.
` Q. Anybody else?
` A. No.
` Q. When did you meet with him?
` A. On three occasions.
` Q. Do you remember the dates?
` A. Yes.
` Q. What were they?
` A. 14, 15 and 15, May.
` Q. I believe you said 15 twice.
` A. I did. There were three meetings, so...
` Q. Was --
` A. Did I not say on three occasions?
` Q. Was it April 14th and 15th?
` A. No. I'm sorry. May 14, May 15 and May 15,
` so three meetings.
` Q. So you had two separate meetings on the same
` day?
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` A. Correct.
` Q. Do you recall about how many hours you met
` with Mr. Helge to prepare for your deposition?
` A. About six hours.
` Q. Total?
` A. Total.
` Q. And did you have any phone conversations to
` prepare?
` A. Yes.
` Q. And how many hours did you spend on those?
` A. Two.
` Q. Mr. Pesce, you don't have a doctorate degree
` in any field, do you?
` A. No.
` Q. You don't have a graduate degree of any
` type?
` A. No.
` Q. And you don't have an undergraduate degree
` either, do you?
` A. Correct.
` Q. So you have no degree in computer science;
` is that right?
` A. Correct.
` Q. No degree in computer networking?
` A. Correct.
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` Q. And no degree in electrical engineering?
` A. Correct.
` Q. What is the highest level of formal
` education you completed?
` A. High school.
` Q. And what year did you graduate?
` A. 1980.
` Q. You did spend four semesters in college,
` correct?
` A. Correct.
` Q. And that was at MIT?
` A. Correct.
` Q. And you left MIT in 1982; is that right?
` A. Correct.
` Q. Did you have a major at MIT?
` A. Several.
` Q. Formally declared majors?
` A. At MIT you don't formally declare a major
` until some time in your second year. I would have
` had a formally declared major probably in creative
` writing in my second year.
` Q. When you say you would have, do you mean you
` did?
` A. I don't specifically recall, but insofar as
` I think they ask you to, I'm pretty sure that's what
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` I would have chosen. I'm reconstructing so that's my
` best guess.
` Q. And your initial answer was that you had
` several majors. What did you mean by this?
` A. I was studying several different areas. I
` was intrigued by several different areas.
` Q. And what were those areas?
` A. Psychology, biology, computer science,
` creative writing.
` Q. Do you recall how many classes you took per
` semester at MIT?
` A. The normal course load would be between four
` and five.
` Q. So that would be somewhere around 16 to 20
` classes during the time that you were at MIT?
` A. It would have dwindled off toward the end.
` Q. And aside from the I believe four areas of
` study that you mentioned, were you also taking
` general education classes during that time?
` A. The way curriculum is structured at MIT the
` first year is essentially, for all students, general
` education physics and calculus taught in conjunction
` and some other courses on the side. So I guess the
` answer would be yes, but it has to be seen in the
` light of the very specific design of the MIT
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` curriculum.
` Q. Is it fair to say that the four areas of
` study you mentioned were more heavily involved in
` your curriculum during your second year at MIT?
` A. I certainly took classes in both biology and
` psychology and in creative writing and computer
` science for that matter in my first year.
` Q. Do you recall how many computer science
` classes you took your first year?
` A. One.
` Q. How about your second year?
` A. Zero.
` Q. So you took one computer science class while
` at MIT?
` A. Yes.
` Q. The Worlds patents at issue in these IPRs
` don't involve the field of biology, do they?
` MR. HELGE: Object to form.
` THE WITNESS: Probably true.
` BY MR. ARGENTI:
` Q. The Worlds patents at issue in these IPRs
` don't involve the field of psychology either, do
` they?
` MR. HELGE: Object to form.
` THE WITNESS: I disagree.
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` BY MR. ARGENTI:
` Q. Would you explain?
` A. A lot of what's being done is around making
` these Worlds work well for human perception which is
` where it falls under psychology --
` THE DEPOSITION OFFICER: "Works well..."
` THE WITNESS: For human perception, which is
` why I think it falls well under psychology.
` BY MR. ARGENTI:
` Q. Would you be able to point me to a specific
` portion of the Worlds patents specification that
` relates to psychology or are you referring to a more
` general application?
` MR. HELGE: Object to form.
` THE WITNESS: I don't have the patents in
` front of me, so...
` BY MR. ARGENTI:
` Q. Would it be helpful if you had a copy?
` A. Let me think about it. The overall goal of
` the crowd control, which is at the core of the Worlds
` patents, has to do with optimizing a relationship
` between the number of simultaneous users and the
` capacity of a particular client to interact with
` those users so that there's a sweet spot. A sweet
` spot is very much a psychology sort of assessment of
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` how it affects, and so I guess in that framework
` that's how I understand how those patents work.
` Q. Do the Worlds patents at issue in this IPR
` relate to creative writing?
` MR. HELGE: Object to form.
` THE WITNESS: Not that I can recall.
` BY MR. ARGENTI:
` Q. The fact that you studied biology and
` creative writing at MIT doesn't make you any more
` qualified to offer expert opinions on the validity of
` the Worlds patents, does it?
` MR. HELGE: Object to form.
` THE WITNESS: Probably not.
` BY MR. ARGENTI:
` Q. In your opinion does the fact that you
` studied psychology at MIT make you any more qualified
` to offer expert opinions on the validity of these
` patents?
` MR. HELGE: Object to form.
` THE WITNESS: Probably.
` BY MR. ARGENTI:
` Q. After you left MIT you worked at Security
` Dynamics, correct?
` A. Correct.
` Q. You worked at Security Dynamics from 1982 to
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` 1984; is that right?
` A. To clarify, the company was Contacts Systems
` when I joined it and had changed into Security
` Dynamics by the time I left. So, yes, 1982 to '84
` were the correct dates.
` Q. And did you have the same role during that
` period regardless of the name of the company?
` A. I was a software engineer.
` Q. So while at Contacts Systems and Security
` Dynamics you developed an access control smart card;
` is that right?
` A. Correct.
` Q. So you didn't do any work in the field of
` network to virtual reality systems while at Contact
` Systems and Security Dynamics, correct?
` A. No.
` Q. After Security Dynamics you worked at
` Dynatech Communications from 1984 to 1988; is that
` right?
` A. No.
` Q. Oh.
` A. I worked -- I went to, briefly, a company in
` Canton that made barcode scanners and then I think
` that was just two months. Then I went to work at GTE
` Telenet in Burlington, Massachusetts and this would
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` have been 1984.
` Q. So I'm looking at your CV that you submitted
` with your declaration and in particular page 80.
` Could you turn to that page.
` A. Oh, yep. That's incorrect.
` Q. The CV is incorrect?
` A. Yes.
` Q. Okay. So the entry from June 1982 to
` June 1984, we already discussed was
` Contact Systems/Security Dynamics?
` A. Yes.
` Q. And then after that, you did not go to
` Dynatech?
` A. No, that would have been June 1986 to
` September 1988. So I think that's the error there.
` Q. And in the intervening period, you mentioned
` two different companies?
` A. A company whose name I cannot remember which
` made barcode systems and then GTE Telenet.
` Q. Did you do any work in the field of network
` to virtual reality systems at the barcode company or
` at GTE Telenet?
` A. Network to virtual reality systems?
` Q. Right.
` A. No.
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` Q. Then we get to Dynatech Communications in
` June 1986, correct?
` A. Correct.
` Q. And at Dynatech you developed firmware for
` modems; is that right?
` A. CSU/DSUs, which are a very specific
` commercial sort of professional class of modem, yes.
` Q. You didn't do any work in the field of
` network to virtual reality systems while at Dynatech,
` did you?
` A. No.
` Q. And after Dynatech, your CV says you worked
` at Shiva Corporation from 1988 to 1992; is that
` correct?
` A. Correct.
` Q. At Shiva, it looks like you did similar work
` to what you had done at Dynatech, developing software
` for dial-up modems; is that right?
` A. Similar.
` Q. Did you do any work in the field of network
` to virtual reality systems at Shiva?
` A. Formally, no.
` Q. It sounds like you had a qualifier there.
` Would you like to explain?
` A. In terms of my normal work practice and what
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` I was being paid for, the answer would be no.
` Q. Okay. And then you left Shiva to form
` Ono-Sendai, correct?
` A. Correct.
` Q. And the timing on that is a little confusing
` from your declaration and CV.
` So paragraph 5 of your declaration says you
` founded Ono-Sendai in 1991?
` A. Hmm.
` Q. But your CV says you left Shiva in --
` A. Was it February '92, maybe -- January '92.
` Q. In '92, right, to found Ono-Sendai. Could
` you explain?
` A. It is not uncommon for folks doing start-ups
` to continue working at the job that's paying them --
` Q. Sure.
` A. -- while they're getting their start-up
` happening. So that was very much what was happening.
` Q. So they overlapped?
` A. They overlapped.
` Q. Then the entry for Ono-Sendai in your CV
` says you were there until February 1993, correct?
` A. Correct.
` Q. Paragraph 8 of your declaration says you
` left Ono-Sendai in the middle of 1993. Did you mean
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` February?
` A. I don't have a precise memory. The first
` half of 1993, February, March. It was sort of an
` extended breakdown of the company. Certainly by --
` somewhere by May or June, I would have started
` seeking other consulting work, and so I would have
` been fully out.
` Q. I think your CV says you worked as a
` consultant for Apple starting in April of 1993. Does
` that sound right?
` A. Yes.
` Q. It was a long time ago. I'm sure it's hard
` to remember.
` Ono-Sendai was your first involvement with
` network to virtual reality systems, correct?
` A. Correct.
` Q. And that company was not a success, was it?
` MR. HELGE: Object to form.
` THE WITNESS: It no longer exists.
` BY MR. ARGENTI:
` Q. In fact, it ceased doing business after two
` years, correct?
` A. Incorrect.
` Q. How long did Ono-Sendai do business?
` A. I don't recall because I was not directly
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` involved, but I think at least through 1994.
` Q. I'm looking at your CV and the Ono-Sendai
` entry on page 8 on the last sentence, it says
` (reading):
` "Company closed in 1993 after
` failure to secure sufficient funding
` to continue development of products."
` Is that wrong?
` A. I have to say that it is possibly incorrect.
` I honestly don't know the date on that.
` Q. So you're not sure whether Ono-Sendai ceased
` doing business in 1993 or 1994?
` A. I am not sure.
` Q. And then starting in 1993, you worked on
` developing the Virtual Reality Modeling Language,
` correct?
` A. Correct.
` Q. And you refer to that as VRML?
` A. Correct.
` Q. As a result of your involvement with VRML,
` you were invited to teach at San Francisco State
` University in 1998; is that right?
` A. No.
` Q. Take a look at paragraph 13 of your
` declaration.
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` A. Yes.
` Q. And the first sentence refers to a VRML
` textbook that you wrote and then the second sentence
` says (reading):
` "As a result of that book, I was
` invited to teach casually at
` San Francisco State University."
` A. Yes.
` Q. Do you see that?
` So were you making a distinction between
` your involvement with VRML and your authorship of the
` textbook specifically?
` A. I believe you said 1998.
` Q. Right.
` A. And it says 1995 there, the beginning of
` paragraph 13.
` Q. You're correct. My mistake. I was looking
` at the 1998 referring to USC. Thank you for that
` clarification.
` So as a result of your involvement with
` VRML, you were invited to teach at San Francisco
` State University sometime between 1995 and 1998?
` A. I believe it was '95.
` Q. Okay. What do you mean in your declaration
` when you say you were invited to "teach casually"?
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` A. Casual teaching is where you're invited to
` teach a class rather than becoming a formal member of
` the faculty.
` Q. So you weren't considered a professor as a
` result of that appointment?
` A. No. It wouldn't have been an appointment.
` I think it was just a casual hire.
` Q. Okay. As a result of that hire.
` And you weren't eligible for tenure?
` A. No.
` Q. And then you mention your involvement with
` the USC School of Cinema Television and then the
` Australian Film Television and Radio School.
` Do you see those entries?
` A. Yes.
` Q. And you say (reading):
` "At both AFTRS and at USC, I
` worked with a generation of media
` creatives and producers to apply the
` lessons of interactivity to their own
` works."
` Do you see that?
` A. Yes.
` Q. Were you developing network to virtual
` reality systems in those roles?
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` MR. HELGE: Object to form.
` THE WITNESS: No.
` BY MR. ARGENTI:
` Q. Were those roles more focused on generating
` interactive content?
` MR. HELGE: Object to form.
` THE WITNESS: In part.
` BY MR. ARGENTI:
` Q. Can you explain what type of work you were
` doing with media creatives and producers?
` A. A big part of my role