` 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
` Wednesday, April 20, 2016
` VOLUME I (Pages 1 - 91)
`
`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 10:55 a.m. on Wednesday, April 20, 2016,
`before Janis Jennings, Certified Shorthand Reporter No.
`3942, CLR, CCRR.
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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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` I N D E X
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`Page 4
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`WITNESS EXAMINATION
`SCOTT ANDREWS
`
` BY MR. JOAO 6
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` E X H I B I T S
`NUMBER DESCRIPTION PAGE
`Exhibit 1 Notice of Deposition of Scott Andrews 6
` IPR2015-01612
`
`Exhibit 2 Declaration of Scott Andrews 13
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`Exhibit 3 United States Patent 7,397,363 14
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`Exhibit 4 United States Patent 5,732,074 15
`
`Exhibit 5 Notice of Deposition of Scott Andrews 50
` IPR2015-01613
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`Exhibit 6 Declaration of Scott Andrews 50
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`Exhibit 7 United States Patent 5,917,405 50
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`Exhibit 8 United States Patent 6,072,402 50
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`Exhibit 9 United States Patent 4,897,642 50
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`Exhibit 10 United States Patent 5,113,427 50
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`Exhibit 11 United States Patent 5,223,844 50
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`Page 6
` PALO ALTO, CALIFORNIA; WEDNESDAY, APRIL 20, 2016;
` 10:56 a.m.
`
` SCOTT ANDREWS,
` The witness herein, was sworn and testified
` as follows:
`
` CROSS EXAMINATION
`BY MR. JOAO:
` Q. Good morning, Mr. Andrews.
` A. Good morning.
` MR. JOAO: My name is Raymond Joao. I'm a
`patent attorney, and I am representing Joao Control &
`Monitoring Systems in this IPR involving U.S. Patent
`No. 7,397,363, case IPR2015-01612.
` This is Exhibit 1.
` (Exhibit 1 was marked for identification
` and attached hereto.)
`BY MR. JOAO:
` Q. Mr. Andrews, you were handed Exhibit 1, a copy
`of the Notice of Deposition of Scott Andrews.
` Have you seen this document before?
` A. I haven't, but I was told about it.
` Q. Do you want to take your time to look through
`it?
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` A. Okay.
` Q. Mr. Andrews, have you been deposed before?
` A. Yes, I have.
` Q. So you understand the process?
` A. Yes.
` Q. If it -- I'm going to be asking questions, I
`want to make sure that you understand. So if at any
`time during my questioning you have a problem or a
`question, just please let me know so this way, you know,
`we get all that taken care of without a problem.
` A. Okay.
` Q. Okay. Mr. Andrews, you are -- you have been
`retained by Volkswagen; correct?
` A. Yes.
` Q. Okay. And you are the -- you have offered
`declarations in the four IPRs involving U.S. Patent
`numbers 7,397,363, U.S. Patent No. 5,917,405,
`U.S. Patent No. 6,549,130, and U.S. Patent
`No. 6,542,076; is that correct?
` A. That's correct.
` Q. Mr. Andrews, what was your first contact with
`Volkswagen?
` A. Let's see. I think I was contacted by
`Volkswagen -- I can't recall whether it was 2008 or '9
`on a case for -- a case against Affinity Labs.
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` Q. When did you first read the JCMS patents? And
`by "JCMS patents," I mean the four patents, at the
`least, the four patents that you have opined on and
`provided declarations in these IPRs?
` A. Gosh. Well, for Volkswagen, it probably would
`have been six to nine months ago, something like that.
`I was also associated with a case, I believe, with other
`patents. I'm not sure if they were JCMS patents, but
`other patents by Joao. Is that how you pronounce it?
` Q. Joao, yes.
` A. Joao.
` Against Toyota, back in 2011, I believe.
` Q. Did you render any opinions in your
`representation of Toyota or when you were working with
`Toyota?
` A. I don't believe so. I just consulted with
`them.
` Q. Do you understand the JCMS patents at issue,
`the four IPR patents that I just named or listed, are
`you sufficient -- do you understand to sufficiently
`support your expert opinions today?
` A. Yes, of course.
` Q. With regard to each of the four JCMS patents,
`and when I say "JCMS," I'm using shorthand for Joao
`Control & Monitoring Systems.
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` A. Okay.
` Q. Did you read all four of the patents?
` A. I did.
` Q. Did you read all of the file histories for all
`of the patents and any related applications?
` A. I read -- I can't say I read every word of the
`file histories, but I am certainly familiar with the
`file histories.
` Q. And you understand that the four JCMS patents
`are also or were involved -- well, one was and three
`still are involved in a re-examination at the
`United States Patent and Trademark Office?
` A. Yes.
` Q. Did you offer opinions in those as well?
` A. I don't know if I -- I don't think I've
`offered any written opinions. I believe I consulted
`with Kenyon on those.
` Q. In reviewing the -- have you offered expert
`testimony for patent invalidity issues before?
` A. Yes.
` Q. Do you understand claim construction?
` A. Yes.
` Q. And what do you understand that to be?
` A. Claim construction is a legal process.
`Typically the -- seen in -- well, I don't want to say
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`what it is from a legal perspective. Claim construction
`from a layperson's perspective is the Court determining
`the meaning of any disputed terms that are in the
`claims.
` Q. In the course of reviewing the file histories
`for the four JCMS patents, 7,397,363, 5,917,405,
`6,542,076, and 6,549,130, did you come across any
`definitions in the file histories?
` A. Let's see. I believe that in the '363 file
`history, I believe that the patent applicant either
`provided or otherwise sought to define some of the claim
`terms for that patent.
` Q. Did you use those definitions provided in the
`file history when you rendered your opinions?
` A. I used the broadest reasonable interpretation,
`and having seen those definitions, I didn't feel that
`those definitions were -- offered any particular
`difference between the broadest interpretation and those
`definitions. They basically were reiterating what I
`would consider to be the broadest reasonable
`interpretations.
` Q. Are you familiar with the term "person having
`ordinary skill in the art" or a "person of ordinary
`skill in the art" or a "POSITA"?
` A. Yes, I am.
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` Q. And what do you understand that to be?
` A. It's a person at the -- who at the time of the
`patent application would have had the -- I'm sure
`there's a particularly legal definition of this, but
`would have had the knowledge and experience to read and
`understand the patent and reduce that patent to practice
`or reduce the claimed invention to practice.
` Q. In what fields are you an expert?
` A. Do you mean that from the perspective of what
`fields am I a technical --
` Q. Technical expert?
` A. -- expert outside the legal domain, or are you
`asking that from the perspective of what fields I
`testify in as an expert?
` Q. Are you an expert in the legal domain?
` A. No.
` Q. Okay. I guess what fields do you consider
`yourself to be a technical expert?
` A. Ah, let's see. I'm certainly a technical
`expert in communication systems, communications
`electronics and communications theory. I'm an expert in
`automotive systems, including what are often known as
`intelligent transportation systems or ITS. That
`includes applications of communications and computing
`technology to mobile devices, including cars and trucks,
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`and it also generally includes various aspects dealing
`with navigation, with position finding.
` Q. Going back to POSITA. In your opinion, what
`would a person have to have in terms of experience
`and/or education to qualify as a POSITA?
` A. For these particular patents?
` Q. Yes.
` A. I haven't actually opined on that, I don't
`believe, in my declarations, but I would think that it
`would be a person with a bachelor's degree in computer
`science or engineering, possibly some other technical
`field like physics, but probably two to three years
`experience in developing communications in
`computing-oriented systems. And that, you know, if they
`had less experience, they might have -- might compensate
`for that by having a higher level degree.
` Q. Thank you. Mr. Andrews, what have you done to
`prepare to testify today?
` A. Let's see. I read the patents. I read my
`declarations. I read the IPR petitions. I read the
`patent owner responses to those petitions, and I went
`through some of the re-exam histories. I may have
`looked at a few other things, obviously the prior art
`patents and things.
` Q. You reviewed the prior art patents?
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` A. Yes.
` Q. When did you begin preparing?
` A. Two weeks ago, maybe.
` Q. And approximately how much time did you spend?
` A. I've probably spent, up until this week, maybe
`20 hours or so. And then this week, you know, 40 hours,
`thereabouts.
` MR. JOAO: This is No. 2.
` (Exhibit 2 was marked for identification
` and attached hereto.)
`BY MR. JOAO:
` Q. Mr. Andrews, you've been handed a copy of the
`declaration of Scott Andrews. Do you recognize that
`document?
` A. Yes, I do.
` Q. Do you need time to look at it?
` A. No.
` Q. On the last five pages, that is your CV;
`correct?
` A. Yes, it is.
` Q. Is your CV full and complete?
` A. Let's see. It's reasonably complete as of
`whenever this was put together. I may have worked on
`a -- or may have acquired a handful of other cases since
`this. In fact, I know I have.
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` MR. JOAO: Okay. This is Exhibit 3.
` (Exhibit 3 was marked for identification
` and attached hereto.)
`BY MR. JOAO:
` Q. Mr. Andrews, I handed you a copy of U.S.
`Patent No. 7,397,363.
` Do you recognize the document?
` A. Yes, I do.
` Q. Mr. Andrews, did you offer opinion regarding
`independent claim 68 of U.S. Patent No. 7,397,363?
` A. I'd have to -- I've only looked at this on my
`computer and I have them highlighted, and so I'm going
`to look through my --
` Q. Please take your time.
` A. I don't have the claim numbers memorized.
` Q. Just to help you out. I think you're going to
`jump to page --
` A. 16?
` Q. Yes.
` A. Yes. Yes, I offered opinions on that, yes.
` Q. And what was your opinion?
` A. That Spaur discloses the limitations of 68.
` Q. Okay. Can you tell me how the Spaur system
`works with regards to how it discloses all of the
`elements of claim 68, please.
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` A. Do you have a copy of Spaur?
` MR. JOAO: It just so happens I have a copy
`right here.
` DEPOSITION REPORTER: This is No. 4.
` (Exhibit 4 was marked for identification
` and attached hereto.)
` THE WITNESS: So you want me to go through
`each of the limitations of 68?
`BY MR. JOAO:
` Q. Well, if you can tell me generally how it
`works and then we'll go through the limitations.
` A. How Spaur works?
` Q. How Spaur works with regards to how it
`anticipates claim 68 generally and then we'll go through
`the -- because I have some questions regarding some of
`the actual wording of the claim, unless you want to just
`do that first.
` A. No, I can kind of point out the primary
`elements of Spaur that meet the primary elements of the
`claim.
` Q. Okay.
` A. So the claim, claim 68 has, as most of the
`claims in this patent family have, it has three, in this
`case, they're called processing devices. There's a
`first processing device which is located at the vehicle,
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`and it is responsible for certain things. And the
`processing device generates a signal and transmits that
`signal to a second processing device where that signal
`contains information regarding an event from the
`vehicle.
` The second processing device is remote from
`the vehicle and receives the signal from the first
`processing device. And the second processing device
`generates a signal and transmits that second signal on
`or over the Internet I believe to a communication
`device, which is in some cases called a third device,
`but in this case, it's called a communication device
`which receives it and that provides information
`regarding the event.
` And that the second device -- the
`communication between the second device and the third
`device takes place over the Internet or the World Wide
`Web.
` Q. Okay. So you indicated there were at least
`two processing devices in claim 68; correct?
` A. There is the first processing device at the
`vehicle, the second processing device which is remote
`from the vehicle, and a communication device, which is I
`guess in this case it doesn't need to be remote from the
`two, but oftentimes they are.
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` Now, in Spaur, we have a device which is in
`the vehicle that would be the controller/network
`protocol converter which has an interface to various
`vehicle systems, you know, various vehicle devices
`through a CAN, which is a controller area network bus
`interface. And so that's how the first processing
`device would interact with the list of possible things
`that the vehicle, or that the first processing in the
`claim needs to interact with in the vehicle; so vehicle
`equipment system, vehicle component, et cetera.
` Q. Okay. You used the term "processing device."
`It's in the claim. Did you use a definition for
`processing device when you studied Spaur and arrived at
`your opinion?
` A. I used essentially plain conventional meaning,
`which would specifically be something that I think that
`you provided a definition of it that I don't necessarily
`disagree with. It's something that performs processing
`functions.
` Q. Okay. The first processing device of Spaur,
`can you -- again, I know you may have done it, but can
`you please identify that to me in Figure 2, I believe,
`and Figure 2 is where I saw that you had said something
`about 30, and so I just wanted to kind of help you
`there.
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` A. Well, the specific processor would be the
`processor 94 with the RTOS, real-time operating system,
`that's all generally contained within the controller
`network protocol converter 30.
` Q. So you're saying item 94 is the first
`processing device of claim 68?
` A. I would actually consider the controller 30 to
`be the more complete, although it contains a --
`specifically contains a processing device, which would
`be the processor 94.
` Q. Okay. So the first processing device -- so
`I'm clear, the first processing device would be
`represented by controller 30? Controller network
`protocol converter?
` A. I believe that item 30 in Figure 2 would be
`representative of a first processing device.
` Q. According to claim 68, "...the first
`processing device at least one of monitors and detects
`an event regarding at least one of a vehicle system, a
`vehicle equipment system, a vehicle component, a vehicle
`device, a vehicle equipment, and a vehicle appliance, of
`a vehicle..."
` Do you see that --
` DEPOSITION REPORTER: I'm sorry, "vehicle
`equipment," what's after that?
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`BY MR. JOAO:
` Q. "...vehicle equipment and a vehicle appliance,
`of a vehicle."
` Do you see that in the claim 68?
` A. Where were you reading?
` Q. I'm reading from claim 68 in the first
`paragraph.
` A. "...monitors and detects an event regarding at
`least one of a vehicle system, a vehicle equipment
`system, a vehicle component, a vehicle device, a vehicle
`equipment, and a vehicle appliance, of a vehicle..."
` Yes.
` Q. Okay. Where in Spaur does it disclose that
`the -- I'm going to refer to for shorthand just so I'm
`not playing games here, controller/network protocol
`converter, I'm going to just call that controller 30.
`Is that okay with you?
` A. That's fine.
` Q. Okay. Where in Spaur does it show that
`controller 30 actually monitors or detects an event?
` A. Well, first of all, Spaur Figure 2 shows the
`controller 30 connected through -- I'm just going to
`call it a CAN bus, which is the Controller Area Network
`control unit. And CAN bus items 122 and 126 interacts
`with a variety of vehicle devices, 50A, B, and C -- and
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`A, B through N, and you asked me where specifically
`Spaur talked about responding to, I think it was
`monitoring?
` Q. No. I think the question was -- well, can you
`read back the question, please.
` Okay. Okay.
` Where in Spaur does it show that controller 30
`actually monitored or it detects an event?
` A. Well, at -- let's start through my declaration
`here, at column 3, lines 30 to 39, we have -- well,
`Spaur talks about a variety of reporting and monitoring
`functions, which include running programs on the
`controller to obtain data from the vehicles. And
`examples from that are 30 and 39, where the executable
`programs can be utilized in obtaining or providing data
`or other information associated with the vehicle
`devices, so that would be monitoring or controlling.
` Column 4 at lines 24 to 29, we have in a
`variation of this operation, it's said for "requests
`starting from the remote station, the sending of
`information including data, might be initiated at the
`vehicle. By way of example, it may be necessary or
`desirable to have certain data parameters be
`periodically transmitted to a remote station for
`analysis for other considerations."
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` And then we continue at column 8, line 49.
`"Such data may be data obtained from monitoring a
`physical device associated with the vehicle and/or may
`include data useful in running executable software that
`is intended to provide further information or data
`useful to a requestor."
` Those are the particular sections that I
`cited. If you'd like me to identify that --
` Q. Well --
` A. -- where in here the controller itself is
`connected to those, we could probably go through that as
`well.
` Q. Okay. The controller, the controller 30 in
`Spaur is located at the vehicle; correct?
` A. That's correct.
` Q. Okay. Now, claim 68 is pretty specific as to
`what the event is that's being monitored and detected.
`Do you see the language, "...and further wherein the
`event is a detection of a state of disrepair of the at
`least one of a vehicle system, a vehicle equipment
`system, a vehicle component, a vehicle device, a vehicle
`equipment, and a vehicle appliance..."?
` A. I see that.
` Q. Okay. Where in Spaur or in any of those
`sections that you just listed does -- where does Spaur
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`show the controller 30 detecting a state of disrepair?
` A. For example, column 9, line 10, "Vehicle
`parameter monitoring for maintaining the vehicle such as
`checking engine conditions including possibility of
`overheating," for example, which would be a state of
`disrepair.
` There's also at line 25 of column, 9
`"Providing an indication of key or alarm related events,
`such as when roadside assistance is required," which in
`many cases roadside assistance for someone skilled in
`the art would be required because the vehicle is -- it
`has some form of state of disrepair.
` Q. Well, I guess I'm not sure where it describes
`that the controller 30 is actually doing this.
` A. Well, first of all, in Figure 2, you see that
`the interface between this system as described by Spaur
`and the vehicle is through controller area network
`control unit 122 and CAN bus 126. So the only way that
`Spaur's system, and if you'd like I can spend some time
`and find a specific reference that the controller 30
`gets this information.
` But from Figure 2 alone, you can see that
`controller 30 is connected to a variety of vehicle
`devices, which would be the devices that it would
`receive information, for example, about a need for
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`roadside assistance or overheating, would receive that
`information or interpret that information through the
`vehicle devices that it's connected to.
` Q. Can you please show me some supporting spec
`for that, for the controller 30?
` A. Well, you have -- at the beginning, you have
`Figure 4 which shows a flow chart and it starts with
`block 300, which is the vehicle devices which are
`transmitting data. So it's the vehicle device's data
`transmission. Those go to the CAN bus input, which then
`goes to the CAN control unit handling, which then goes
`to the vehicle controller handling. And vehicle
`controller is unit 30. So this flow chart alone shows
`the sequence of the flow of information, beginning with
`vehicle devices and pausing at the vehicle controller
`handling.
` Q. How do you know from Figure 4 that the vehicle
`controller is that control unit 30, that controller 30?
`Because I...
` A. Just give me a second here.
` Well, here's an example. I'm sure that there
`are others, but on column 13, line 37, "With regard to
`operation variations, with respect to one or more alarm
`conditions, when a particular vehicle device 50 detects
`or is involved with an alarm event, this is reported by
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`the CAN 124 to the processor 90."
` As you recall, processor 90 is the processor
`that is in the controller 30.
` Q. Well, if this is correct, then shouldn't the
`vehicle device 50, that's described as detecting the
`event; correct?
` A. Say it again?
` Q. What you just read, column 13, lines 37 to 41,
`I'm reading from line 37, "With regard to operation
`variations, with respect to one or more alarm
`conditions, when a particular vehicle device 50 detects
`or is involved with an alarm event, this is reported
`by the CAN 124 to the processor 90 using the device
`drivers 128."
` Do you see that?
` A. I see that.
` Q. Isn't it vehicle device 50 that's actually
`monitoring or detecting an event?
` A. Well, it certainly is monitoring a parameter.
` Q. But it says it detects. The event, according
`to the claim, is a detection of a state of disrepair.
` A. Okay. Give me a moment. I'll find another
`example.
` I think personally in my opinion that the
`detection of the event as reported by a sensor or
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`another device in the car, from the perspective of
`Spaur, the processor has also detected that event. I
`mean, we could go all the way down to which atoms are in
`which part of the car that are actually involved in the
`event. But the fact is that you could have a device in
`the vehicle that detects temperature and it can report
`the temperature over the CAN bus, and the detection of
`overheating might be actually made, and presumably would
`be made by the RTOS processor.
` DEPOSITION REPORTER: By the?
` THE WITNESS: RTOS, R-T-O-S.
` I don't -- you know, anyone with any knowledge
`of how cars work wouldn't say that I have an overheating
`sensor in the car. I would have a temperature sensor in
`the car, and I would sense the temperature of the car
`over the CAN bus and decide that that event represented
`overheating. So the example that I chose here or I
`found here happened to be related to an alarm event, but
`I'm sure that there's another one in here for
`overheating.
` So here's another place, at column 13, line
`10, "Additionally, or alternatively, it may be necessary
`to obtain current or other data that is available from a
`particular device itself. In that context, the
`processor 90/RTOS 94 obtains such information through
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`the CAN controller unit 122 via the CAN bus 126 at block
`232. The CAN protocol" -- and it goes on to describe.
` "The data obtained by the CAN is utilized by
`the processor in connection with the execution of the
`selected program that is being executed..."
` I don't need to read more.
` So your initial question was could I identify
`that the data from the vehicle device is 50 was getting
`to the controller 30, and I think I've shown that.
`BY MR. JOAO:
` Q. The controller 30 cannot by itself detect or
`monitor, or it cannot detect a state of disrepair, can
`it?
` A. Sure.
` Q. How?
` A. If it's, for example, using the overheating
`event. If it's receiving temperature from a temperature
`sensor through the CAN bus, it can compare the
`temperature that it's receiving to some threshold and
`make a decision that there has -- that the temperature
`has exceeded the threshold and therefore we have a state
`of disrepair.
` Q. Mr. Andrews, have you answered your question
`to the best of -- my question to the best of your
`ability?
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`
` A. I could go on all day if you'd like.
` Q. Please. I'd like to see if you can show me an
`indication where something not initiating from the
`vehicle sensor, the vehicle device 50, is actually
`detecting a state of disrepair.
` A. Not originating with the vehicle device 50?
` Q. Yes.
` A. The only way that the controller has any
`knowledge of what's happening in the car is through the
`vehicle devices. So it would measure parameters, which
`is described in several places in this patent, from
`those vehicle devices and report them, monitor them,
`perform processes through programs on them, and those
`would easily be detecting that one of them was outside a
`nominal value.
` Q. Correct.
` But the detection or the detection of the
`state of disrepair is done by vehicle device 50?
` A. No. I've already stated that. The
`temperature is not the state of disrepair.
` Q. Well --
` A. That --
` Q. Yeah, but you used te