Page 92
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ________________________________________________
` VOLKSWAGEN GROUP OF AMERICA, INC.
` Petitioner
`
` Patent No. 7,397,363
` Case No. IPR2015-01612
`
` Patent No. 5,917,405
` Case No. IPR2015-01613
`
` Patent No. 6,549,076
` Case No. IPR2015-01610
`
` Patent No. 6,549,130
` Case No. IPR2015-01611
` ________________________________________________
`
` DEPOSITION OF SCOTT ANDREWS
` Palo Alto, California
` Thursday, April 21, 2016
` VOLUME II (Pages 92 - 232)
`
`Reported by: JANIS JENNINGS, CSR, CLR, CCRR
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ________________________________________________
` VOLKSWAGEN GROUP OF AMERICA, INC.
` Petitioner
`
` Patent No. 7,397,363
` Case No. IPR2015-01612
`
` Patent No. 5,917,405
` Case No. IPR2015-01613
`
` Patent No. 6,549,076
` Case No. IPR2015-01610
`
` Patent No. 6,549,130
` Case No. IPR2015-01611
` ________________________________________________
`
` DEPOSITION OF SCOTT ANDREWS
` Palo Alto, California
` Thursday, April 21, 2016
` VOLUME II (Pages 92 - 232)
`
`Reported by: JANIS JENNINGS, CSR, CLR, CCRR
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`
` DEPOSITION OF SCOTT ANDREWS, taken on
`behalf of the Patent Owner, at Kenyon & Kenyon LLP,
`1801 Page Mill Road, Suite 210, Palo Alto, California,
`beginning at 10:05 a.m. on Thursday, April 21, 2016,
`before Janis Jennings, Certified Shorthand Reporter
`No. 3942, CLR, CCRR.
`
`12345678
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`APPEARANCES:
`
`For Petitioner:
` KENYON & KENYON LLP
` BY: CLIFFORD A. ULRICH, ESQ.
` One Broadway
` New York, New York 10004-1007
` 212.425.7200
` culrich@kenyon.com
`
`For Patent Owner:
` JOAO CONTROL & MONITORING SYSTEMS, LLC.
` BY: RAYMOND A. JOAO, ESQ.
` 122 Bellevue Place
` Yonkers, New York 10703
` 914.969.2992
` rayjoao@optonline.net
`
` SINERGIA LAW GROUP
` BY: RENE VAZQUEZ, ESQ. (Telephonic appearance)
` 18296 St. Georges Court
` Leesburg, Virginia 20176
` 703.989.2244
` rvazquez@singergialaw.com
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`APPEARANCES:
`
`For Patent Owner:
` INSIGHT PLC
` BY: STEVEN W. RITCHESON, ESQ.
` 9800 Topanga Canyon, Suite 347
` Chatsworth, California 91311
` 818.744.8714
` swritcheson@insightplc.com
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` I N D E X
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`Page 96
`
`WITNESS EXAMINATION
`SCOTT ANDREWS
`VOLUME II
`
` MR. RITCHESON (Resumed) 98
` BY MR. ULRICH 226
`
` QUESTIONS NOT ANSWERED
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` E X H I B I T S
`
`Page 97
`
`NUMBER DESCRIPTION PAGE
`Exhibit 12 United States Patent No. 6,549,130 98
`
`Exhibit 13 United States Patent No. 6,542,076 98
`
`Exhibit 14 Declaration of Scott Andrews 98
`
`Exhibit 15 Declaration of Scott Andrews 98
`
`Exhibit 16 Hand drawn diagram 123
`
`Exhibit 17 United States Patent No. 4,602,127 210
`
`Exhibit 18 United States Patent No. 5,081,667 229
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`Page 98
` PALO ALTO, CALIFORNIA; THURSDAY, APRIL 21, 2016;
` 10:05 A.M.
`
` (Exhibit 12, Exhibit 13, Exhibit 14 and
` Exhibit 15 were marked for identification
` off the record.)
`
` SCOTT ANDREWS,
` Having been previously sworn, testified
` further as follows:
`
` CROSS-EXAMINATION (Resumed)
`BY MR. RITCHESON:
` Q. Mr. Anderson, Andrews, I'm sorry. My name is
`Steven Ritcheson. I introduced myself earlier. I am
`one of the attorneys representing Joao Control &
`Monitoring Systems, as I explained previously.
` My examination today is going to cover the
`'130 patent and the '067 patent as it relates to the
`inter partes review proceedings. Okay?
` A. Okay.
` Q. I understand that this is a deposition that's
`continuing from yesterday. You're still under oath.
`You understand that the testimony you're giving still
`has the same force and effect as if you were testifying
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`
`in front of a tribunal or judge?
` A. Yes, I do.
` Q. Okay. I understand that you have a fair
`amount of experience testifying as an expert. Is that
`fair to say?
` A. I'd say that's fair to say.
` Q. And you actually had a deposition yesterday,
`so I assume that you don't have any questions about the
`deposition process.
` A. No, I don't.
` Q. Okay. There is one rule in these proceedings,
`it's a little different than district court proceedings,
`which is that you're not allowed to talk to your
`attorney about your testimony.
` Do you understand that?
` A. Yes, I do.
` Q. So when we take breaks, you'll be mindful of
`that rule?
` A. Right.
` Q. Okay. In your CV or your resume that I
`reviewed, it indicated that you actually had a fair
`amount of experience acting as an expert. Yes?
` A. I'd say so, yes.
` Q. How much of that time was spent in proceedings
`that were related to an IPR or an inter partes review?
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` A. I'm not sure I could hazard a proportional
`guess, but I would say that probably 75 to 80 percent of
`my work over the last two or three years has been IPRs.
` Q. And you've had a number of cases I saw
`representing or acting as an expert for Volkswagen; is
`that correct?
` A. That's correct.
` Q. How many times have you acted as an expert or
`a technical consultant on their behalf?
` A. I've lost count, but it's probably about
`eight.
` Q. Over what period of time?
` A. Since about 2009.
` Q. Were all of those IPR proceedings?
` A. No.
` Q. Were any of them IPR proceedings?
` A. Gosh, it was a combination of IPR proceedings,
`consulting on re-exams, and district court cases.
` Q. And are you paid by the hour?
` A. Yes, I am.
` Q. What is your hourly rate?
` A. $500.
` Q. And has that been consistent since 2009?
` A. No. It's changed over the years.
` Q. Has it increased since 2009?
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` A. Yes.
` Q. With respect to this particular matter leading
`up to the declaration, the declaration -- let's focus on
`the '130 declaration for now. Leading up to that
`declaration, how much time have you spent on this
`representation?
` A. On the '130?
` Q. One of the things that will help her a lot is
`if I can finish my question before you answer.
` A. Sorry.
` Q. It's okay. It's just sometimes I get slow in
`the morning.
` Yes, can you break it up that way or do you
`think about it collectively as a single representation?
` A. I've tended to bill it and think about it
`collectively.
` Q. Okay. All of the declarations that you
`submitted in these proceedings were completed at or
`about the same time; is that correct?
` A. That's correct.
` Q. At or about the time that you completed those
`declarations, how much time had you spent on this
`engagement?
` A. I would guess 40 to 50 hours.
` Q. And was that 40 or 50 hours spent actually
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`preparing the declarations?
` A. No. There was a large number of documents
`that I had to review.
` Q. Did you yourself write the declarations that
`have been submitted in support of the petition?
` A. I wrote them with a collaborative effort with
`counsel.
` Q. With respect to the 40 or 50 hours that you
`spent, how much of that was spent reviewing the
`documents as opposed to writing the four declarations
`that you've submitted?
` A. I would say probably about 60 percent of the
`time was spent reviewing documents.
` Q. And the remainder, you said it was --
` A. Reviewing and -- reviewing, editing, and
`rewriting and studying declarations.
` Q. I think my math is right. But is it true that
`it's somewhere between 20 to 25 thousand dollars that
`you've billed for this engagement up through the
`declarations?
` A. That's probably about right.
` Q. Okay. And since the declarations were
`submitted, you've continued to have some -- some role in
`these proceedings, at least with respect to advising VW?
` A. Not until recently when the IPRs were
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`Page 103
`instituted. And at that point, I had more documents to
`review and then started to prepare for the deposition.
` Q. So what additional time have you spent?
`You've got the 40 or 50 hours up to the declaration.
`Where are you now in terms of the overall?
` A. Gosh, I'd have to take a look at my billing,
`but I probably -- I've probably spent about 50 hours
`preparing for depositions, which involves mostly
`re-reviewing documents.
` Q. As part of that process, did you review the
`patent owner statements, for example, for each of the
`four IPRs?
` A. Yes, I did.
` Q. And the institution decision?
` A. I believe so.
` Q. Did you spend as much time as you felt you
`needed to in order to support the opinions that you've
`offered in this case?
` A. Yes.
` Q. Were you placed on any budget or any
`restrictions with respect to the time that you could
`spend?
` A. No.
` MR. RITCHESON: Off the record for a second.
` (Off the record.)
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`
` MR. RITCHESON: Let's go back on.
`BY MR. RITCHESON:
` Q. With respect to -- strike that.
` Have you ever heard of the phrase "distributed
`control system" before?
` A. Sure.
` Q. What is a distributed control system?
` A. A distributed control system would be a system
`where you have controllers that are -- you have multiple
`controllers that are typically spread out across the
`system as opposed to, for example, a centralized control
`system where you might have a single controller which
`would reach out and control a lot of different things.
` Q. Speaking collectively for the time being of
`the -- well, let's speak of the '130. Is the '130
`patent, is that directed to a distributed control
`system?
` A. Let me have a look at the patent.
` Q. When you're looking at documents, if you can
`just let us know what you're looking at. I don't mind
`you looking at it, but I just want the record to reflect
`it.
` A. I'm looking at the '130 patent and my '130
`declaration.
` Q. Okay.
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` A. I haven't characterized it necessarily as a
`distributed control system. I've called it a -- I said
`it relates to a remote controlled control -- control
`monitoring or a security apparatus.
` Q. I guess my question isn't what you called it
`in your declaration, but whether under your definition
`of distributed controlled system the '130 patent is
`directed to distributed control systems.
` A. I guess I would say -- I mean, it could be.
`It depends on what you would consider being controlled.
`Some distributed control systems might, for example,
`have different controlled elements that are spread out
`and controlled by different controllers that are
`communicating with each other; so that the controller of
`one group might inform the controller of another group
`about something that's going on so that they could adapt
`collectively.
` In these patents, the -- there are distributed
`controllers, the first, second, and third control
`devices or processing devices. These patents -- or
`these systems being the systems of the patents. But
`typically, the thing that is ultimately controlled is
`something that's in the vehicle. So what you have here
`is a system of distributed controllers with sort of one
`controlled set of things.
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` So I suppose you could loosely characterize it
`as a distributed control system, but it -- there are
`systems which probably more closely meet that definition
`that would be more complicated.
` Q. Thank you. You've used a term a couple of
`times that I just want to -- I do want to spend a little
`bit of time talking about it, make sure that we have the
`same vocabulary as we move ahead.
` You've used the word "controller." I'm not an
`expert. I'm not -- I mean, Mr. Joao is an expert,
`you're an expert, I'm not. So when I ask you a
`question, it's just coming to you, really just I'm not
`trying to trick you, just trying to get information.
`Okay? Okay?
` A. Yes.
` Q. Okay. As you've used the term "controller,"
`what is a controller?
` A. A controller or a control device is a device
`that would control something.
` Q. Okay. With that now understanding of
`distributed control systems, prior to 1996, did you have
`any experience with distributed control systems?
` A. Yes, I did.
` Q. And what experience did you have?
` A. I had a combination of experience. I've
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`worked extensively in the automotive industry where we
`had ECUs in cars and different ECUs in different places.
`Had systems that performed similarly to the systems that
`are talked about in the patents where you have a
`computer in one facility, say, off-site remote from
`everything that talks to a server that then talks to the
`car. So I'm familiar with and have developed and
`designed systems like that.
` Q. And what systems had you -- I mean, let's
`start with designed and developed. What systems
`specifically could we look at?
` A. There's an example of one system that was an
`off-board navigation and information system. In that
`case, it only had two entities -- actually, I guess it
`had three. We had a system in the car which -- through
`which the user could select categories of points of
`interest.
` So, for example, if you wanted to find the
`nearest ATM, and this was in 1992, I believe. If you
`wanted to find the nearest ATM, you would scroll through
`the display until you found "ATM" and you'd press the
`button, and it would send a signal out over a
`spread-spectrum radio system to AirTouch Teletrac, which
`would then using a pager system triangulate and locate
`the vehicle because it didn't have GPS at the time. And
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`then based on that location, it would send a request for
`the nearest ATM to a server that was off-board that
`would then determine the location of the nearest ATM to
`that location that you provided and it would then send
`back through, I believe, this spread-spectrum link a set
`of turn-by-turn directions that you could then scroll
`through from where you were to the ATM. So there you
`have at least three different things that are performing
`control functions or performing processing functions,
`and are responding to requests or reacting to
`information.
` Other systems like that, there were systems
`that we made for taking remote information. So using a
`terminal like a PC or something, selecting information,
`and then sending that information to the car. Certainly
`traffic information systems where a system in the car
`would request traffic information for a given area based
`on where it was going and then it sort of would provide
`that back and then that would be provided to another
`display system.
` So I've worked in those sorts of systems a
`lot. I also have previous experience in the aerospace
`industry working in satellite control systems.
` Q. Thank you. You've used a couple of terms I
`want to just clear up. One is that you referred to
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`control functions. What do you mean -- you said within
`the example of retrieving the ATM data and driving
`instructions, you said that there were at least three
`systems or three controllers that exercised control
`functions.
` A. Uh-huh.
` Q. Is that correct? Is my statement correct?
` A. I believe so.
` Q. Okay. So within the context of that
`statement, what do you mean by "control functions"?
` A. For that one, there probably is more
`information retrieval and provision, not necessarily as
`much command and control. Certainly in satellite
`systems that I developed, we had, you know, a remote
`satellite management facility and a satellite ground
`station facility and then obviously the satellite, and
`you would, in fact, control the satellite remotely so
`you'd have -- tell it to go to a particular place, tell
`it to do a particular thing, tell it to switch to a
`different channel, things like that.
` Q. I don't doubt your experience, so I appreciate
`that. I'm just -- I can only focus on one example at a
`time. But for right now, let's focus on the example of
`retrieving ATM information. Okay?
` A. Okay.
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` Q. Is it a true statement -- my understanding
`from what you've said is that information retrieval is
`not generally command and control. Is that an accurate
`statement?
` A. It depends. You know, in the example
`provided -- or not example. In the example of the
`claims or example of the patents, you know, if a
`telephone sending a request or sending a command is a
`controller, it is considered a control device or a
`control. And, you know, a device in the car making a
`request would essentially be a controller as well. From
`that perspective, it's controlling, in this case, a
`remote server telling it to do something.
` Q. I'm just trying to drill it into a simple -- I
`hope it's a simple question is that as a general
`statement, isn't it true that information retrieval is
`not command and control? Separate and apart from what
`your explanation is of the '130 patent right now.
` A. It depends entirely on how deeply you want to
`define "command and control." If the server does
`something, even retrieving information based on your
`command, you have commanded it and told it to do
`something, so you've controlled it. And it's a
`little -- a little less direct than, for example, remote
`control where I've got a joystick and I'm moving a crane
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`across the construction yard. But the fact is you have
`a command that you have originated in one place, you've
`sent it to another place, and caused something to
`respond to that command.
` Q. Does the answer to my question differ for you
`on whether it's information transmission as opposed to
`information retrieval? That is, is it a true statement
`generally that information transmission is not command
`and control?
` A. Well, command and control, in a remote sense,
`certainly involves the transmission of information.
`Necessarily, if you just had, you know, a microwave
`relay tower that's transmitting to another relay tower,
`it's probably being controlled by something, but the
`transmission that it's sending isn't related to that
`control.
` Q. Okay. So there are transmissions that are not
`related to control that have information that's being
`sent from one point to another?
` A. Sure.
` Q. Okay. And those are distinct concepts?
` A. I think that the concept of issuing a command
`that causes a device to do something, the something
`might be to transmit information, but the command to
`tell it to transmit is command and control. The actual
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`transmission is simply the result of that control
`action.
` Q. One of the things that I had a little trouble
`with, and I'm hoping that you can help me out with is,
`in your declaration, which we've marked as Exhibit 14,
`am I correct that you didn't offer any construction or
`proposed construction of any of the terms that are used
`in the '130 patent?
` A. That's correct.
` Q. Okay. In arriving at the opinions that you
`expressed in your declaration, did you construe the
`claims?
` A. I applied the plain -- or what is it?
`Conventional or ordinary meaning using the broadest
`reasonable interpretation of the claims. And I've
`reviewed the patent or the later definitions that were
`provided by the patent owner or the patent applicant,
`seeking to provide those definitions. I don't disagree
`with them. I think that they are essentially the plain
`and ordinary, reasonable and ordinary definitions of
`those terms.
` Q. With respect to the constructions that you
`applied, were you instructed to use the broadest
`reasonable interpretation?
` A. Yes, I was.
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` Q. Is that by counsel?
` A. I think so, yes.
` Q. And do your opinions express the broadest
`reasonable interpretation of the claim language that is
`present in the asserted claims?
` A. I think they are based on the reasonable and
`ordinary, which if that's the broadest reasonable
`interpretation, understanding of what those claims mean,
`yes.
` Q. Said another way, did you do what you were
`told to do by counsel?
` A. Yes.
` Q. Okay. With respect to the constructions --
`you understand when I say "construction," I really mean
`the definition of words; correct?
` A. Yes.
` Q. Okay. With respect to -- and I may use that
`term interchangeably. Is that all right with you?
` A. Sure.
` Q. Okay. With respect to your understanding of
`the construction or definitions of the claim language,
`did counsel provide you with any information regarding
`other constructions that had been adopted in, for
`example, federal court proceedings?
` MR. ULRICH: I'm going to object that it's
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`seeking privileged communication.
` MR. RITCHESON: Are you instructing him not to
`answer?
` MR. ULRICH: Yes.
`BY MR. RITCHESON:
` Q. Okay. With respect to the opinions that
`you've adopted in this case, did you take into account
`any constructions that were reached by any other -- or
`any other body, including federal courts?
` A. I don't believe so.
` Q. Did you seek to determine the accuracy of your
`understanding with anyone other than counsel? Did you
`talk to anybody in order to determine whether the
`understanding that you were relying on was, in fact,
`accurate?
` A. No. Because it seemed perfectly reasonable.
`The terms that are used in the patents are not unique.
`They are not -- you know, as they're used in the patent,
`as the operations are described, there is nothing unique
`in my view that required any special interpretation or a
`special understanding of the meaning of those claims.
`And as evidenced by the later definitions provided to
`the patent office during the '363 prosecution, those are
`essentially the same definitions that I applied.
` Q. So as we go through some of these claims, I'd
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`like to get your understanding of what these terms are
`to make sure we're all on the same page with what you
`understand. Okay?
` A. Okay.
` Q. Is there a difference between real-time remote
`control and deferred remote control in your business?
` A. It depends on -- it depends on the definition,
`I guess, of real-time. There's always delay through a
`system.
` Q. Does real-time have an engineering meaning?
`Is there a -- well, if I say that, are you thinking of
`something specific?
` A. Generally, yes.
` Q. What are you thinking? What is the
`understanding you have of that term?
` A. Well, "real-time" essentially means that -- in
`engineering that things happen in accordance with a --
`with schedule limitations, and that's what I meant by it
`depends on your definition of real-time.
` You know, there are digital real-time
`operating systems, for example, and because they're
`digital, they're doing things incrementally and the idea
`is that you are able to actually control or manage the
`timeframe in which something happens. And the reason
`for that is that for the outward appearance of
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`real-time, if I move the joystick, I don't want to move
`the joystick and have nothing happen until later, that
`would clearly not -- I'm using an example, say, for a
`video game. I certainly wouldn't want to have a large
`delay in a system like that. But there's a point below
`which the controlled mechanisms or the things that are
`reacting to mechanisms or actuators or something that
`would be -- being controlled can't tell. And so if you
`control something within that timeframe, it in
`engineering is considered to be real-time.
` Q. Is that in direct response to an input,
`whether there's some latency or delay in the system or
`not, but it's in response to some sort of initiating
`input? Is that sort of what real-time is?
` A. Yeah. I mean, the most obvious example of
`real-time would be -- what's a good example? I guess a
`servomotor, yeah. A servomotor. So a remote controlled
`airplane and I move the joystick and -- or I rotate the
`knob here or the knob over here rotates at the same time
`because they're electrically connected together.
` Q. Right.
` A. There are obviously digital control systems
`that do exactly the same thing and you would be -- at
`the level of the device that you were implementing, you
`would not be able to tell that it was not connected
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`directly together, but you would be sending a command
`that would be later acted on.
` Q. All right. So putting that to the side for a
`sec because I want to touch back on this.
` There is -- do you understand the concept of a
`person of ordinary skill in the art?
` A. Yes, I do.
` Q. What is that?
` A. It's a person who at the time of the invention
`would have had the necessary education, experience, and
`skills to read and understand the patent and implement
`the claimed invention.
` Q. How is that relevant to claim construction, if
`at all?
` A. Well, certainly someone who was going to build
`something that implemented what was claimed would need
`to understand what was claimed.
` Q. Do you understand that the identification of a
`person of ordinary skill in the art, which we also call
`a POSITA.
` A. I'm familiar with that term.
` Q. That the identification of a POSITA is an
`integral part of the claim construction process?
` A. Sure.
` Q. In this case, what definition of POSITA have
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`you used in evaluating the claims at issue?
` A. I didn't specify it in the declaration. I
`wasn't asked to.
` But in my view, a person of skill in the art,
`I think I was asked this yesterday, and my answer may
`differ slightly, but it was someone with a degree in
`computer science or engineering, possibly an associated
`or a related field like physics or something, and
`probably two to three years of experience working in
`control systems and remote control systems. A little --
`that level of experience could probably be traded off
`against a more advanced degree.
` Q. When you say a "degree," do you mean a
`bachelor -- a bachelor's degree?
` A. Yes. So, you know, a person with a bachelor's
`degree in computer science or engineering, two to three
`years of experience; a person with maybe a year working
`in it, but a master's degree in engineering.
` Q. What factors did you take into consideration
`in arriving at that definition of a POSITA?
` A. Basically years of managing teams of engineers
`and understanding what their skills are and what's
`required to build something like this.
` Q. But before yesterday, had you ever been asked
`what a POSITA was for the four patents at issue?
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` A. No.
` Q. Okay. Is the definition of a POSITA that you
`believe would be appropriate the same for each of the
`four patents?
` A. I think so.
` Q. And for all of the claims at issue?
` A. I think so.
` Q. Would a POSITA have unders
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