HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`·
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`·1· · · · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3· · · · · · · · · · · · Case IPR2015-01750
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`·4· · · · · · · · · · · ·Patent 8,484,111 B2
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`·5· · · · · · · Case IPR2015-01751, Case IPR2015-01752
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`·6· · · · · · · · · · · ·Patent 7,356,482 B2
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`·7
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`·8· ·RPX CORPORATION,
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`·9· · · · · · · · · ·Petitioner,
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`10· · · · vs.
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`11
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`12· ·APPLICATIONS IN INTERNET TIME, LLC,
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`13· · · · · · · · · ·Patent Owner.
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`14· ·___________________________/
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`15
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`16
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`17· · · · The Deposition of HOSAGRAHAR JAGADISH, Ph.D.,
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`18· · · · Taken at 900 Victors Way, Suite 135,
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`19· · · · Ann Arbor, Michigan,
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`20· · · · Commencing at 8:06 a.m.,
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`21· · · · Thursday, June 23, 2016,
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`22· · · · Before Cheri L. Poplin, CSR-5132, RPR, CRR.
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`23
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`24
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`25
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`RPX Exhibit 1058
`RPX v. AIT
`IPR2015-01751
`
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`DTI Court Reporting Solution - BostonDTI Court Reporting Solution - Boston
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`1-617-542-00391-617-542-0039
`
`www.deposition.comwww.deposition.com
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`
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`·
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`·1· · · · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3· · · · · · · · · · · · Case IPR2015-01750
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`·4· · · · · · · · · · · ·Patent 8,484,111 B2
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`·5· · · · · · · Case IPR2015-01751, Case IPR2015-01752
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`·6· · · · · · · · · · · ·Patent 7,356,482 B2
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`·7
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`·8· ·RPX CORPORATION,
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`·9· · · · · · · · · ·Petitioner,
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`10· · · · vs.
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`11
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`12· ·APPLICATIONS IN INTERNET TIME, LLC,
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`13· · · · · · · · · ·Patent Owner.
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`14· ·___________________________/
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`15
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`16
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`17· · · · The Deposition of HOSAGRAHAR JAGADISH, Ph.D.,
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`18· · · · Taken at 900 Victors Way, Suite 135,
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`19· · · · Ann Arbor, Michigan,
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`20· · · · Commencing at 8:06 a.m.,
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`21· · · · Thursday, June 23, 2016,
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`22· · · · Before Cheri L. Poplin, CSR-5132, RPR, CRR.
`
`23
`
`24
`
`25
`
`RPX Exhibit 1058
`RPX v. AIT
`IPR2015-01751
`
`
`DTI Court Reporting Solution - BostonDTI Court Reporting Solution - Boston
`
`1-617-542-00391-617-542-0039
`
`www.deposition.comwww.deposition.com
`
`
`
`
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 2
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`·1· ·APPEARANCES:
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`·2
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`·3· ·RICHARD F. GIUNTA
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`·4· ·ELISABETH H. HUNT, Ph.D.
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`·5· ·Wolf, Greenfield & Sacks, P.C.
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`·6· ·600 Atlantic Avenue
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`·7· ·Boston, Massachusetts 02210
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`·8· ·617.646.8000
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`·9· ·rgiunta@wolfgreenfield.com
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`10· ·ehunt@wolfgreenfield.com
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`11· · · · Appearing on behalf of the Petitioner.
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`12
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`13· ·KALA SARVAIYA
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`14· ·SoCal IP Law Group, LLP
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`15· ·310 North Westlake Boulevard
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`16· ·Suite 120
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`17· ·Westlake Village, California 91362
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`18· ·805.230.1350
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`19· ·ksarvaiya@socalip.com
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`20· · · · Appearing on behalf of the Patent Owner.
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`21
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`22
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`23
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`24
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`25
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`1-617-542-00391-617-542-0039
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`DTI Court Reporting Solution - BostonDTI Court Reporting Solution - Boston
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`www.deposition.comwww.deposition.com
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 3
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`·1· · · · · · · · · · TABLE OF CONTENTS
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`·2
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`·3· ·WITNESS· · · · · · · · · · · · · · · · · PAGE
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`·4· ·HOSAGRAHAR JAGADISH, Ph.D.
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`·5
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`·6· ·EXAMINATION BY MR. GIUNTA· · · · · · · · ·4
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`·7
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`·8· · · · · · · · · · · ·EXHIBITS
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`·9
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`10· ·EXHIBIT· · · · · · · · · · · · · · · · · PAGE
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`11· ·(Exhibits previously marked and attached
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`12· · to transcript.)
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`23
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`24
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`25
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`1-617-542-00391-617-542-0039
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`DTI Court Reporting Solution - BostonDTI Court Reporting Solution - Boston
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`www.deposition.comwww.deposition.comYVer1f
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 4
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`·1· ·Ann Arbor, Michigan
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`·2· ·Thursday, June 23, 2016
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`·3· ·8:06 a.m.
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`·4
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`·5· · · · · · · · · ·HOSAGRAHAR JAGADISH, Ph.D.,
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`·6· · · · was thereupon called as a witness herein, and after
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`·7· · · · having first been duly sworn to testify to the truth,
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`·8· · · · the whole truth and nothing but the truth, was
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`·9· · · · examined and testified as follows:
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`10· · · · · · · · · · · · · ·EXAMINATION
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`11· ·BY MR. GIUNTA:
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`12· ·Q.· ·Good morning, Dr. Jagadish.
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`13· ·A.· ·Good morning.
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`14· ·Q.· ·Did I pronounce it correctly?
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`15· ·A.· ·Yes.
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`16· ·Q.· ·Could you please spell your name for the record,
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`17· · · · please?
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`18· ·A.· ·Yes.· It's H-O-S-A-G-R-A-H-A-R, middle initial V.· The
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`19· · · · last name is J-A-G-A-D-I-S-H.
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`20· ·Q.· ·Thank you.· And what is your address?
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`21· ·A.· ·It's 1835 Cambridge Road, Ann Arbor, Michigan.
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`22· ·Q.· ·And are you employed?
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`23· ·A.· ·Yes, I am.· I'm a professor at the University of
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`24· · · · Michigan.
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`25· ·Q.· ·How about for expert work that you do?· Do you work
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`1-617-542-00391-617-542-0039
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`DTI Court Reporting Solution - BostonDTI Court Reporting Solution - Boston
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 5
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`·1· · · · for an agency or how do you find that work?
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`·2· ·A.· ·No, I don't.· I -- I guess there are -- there are
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`·3· · · · these expert witness representing agencies I guess
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`·4· · · · that attorneys sometimes go through to find witnesses,
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`·5· · · · but sometimes it's through just somebody calling me
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`·6· · · · out of the blue.
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`·7· ·Q.· ·Okay.· I'd like to just go over a few ground rules for
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`·8· · · · today's deposition before we start.
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`·9· · · · · · · · · ·So you understand that you're under oath?
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`10· ·A.· ·Yes, I do.
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`11· ·Q.· ·And you understand that this is a question and answer
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`12· · · · process where your answers have to be audible?
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`13· ·A.· ·Yes, I do.
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`14· ·Q.· ·So no head nod.
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`15· ·A.· ·Yes, I do.
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`16· ·Q.· ·Yes or no.· And you understand that if counsel objects
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`17· · · · you still have to answer the question unless she
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`18· · · · instructs you not to answer the question?
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`19· ·A.· ·Yes.· I understand that.
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`20· ·Q.· ·So if at any point I ask you a question that's unclear
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`21· · · · or that you don't understand, I'm going to ask that
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`22· · · · you let me know that the question is confusing and
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`23· · · · I'll do my best to make it clear for you.· Is that
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`24· · · · okay?
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`25· ·A.· ·Yes.
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 6
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`·1· ·Q.· ·And if at any point you need a break, please just let
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`·2· · · · me know.· You know, as long as we're not in the middle
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`·3· · · · of a question, we'll be happy to stop and take a
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`·4· · · · break.
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`·5· ·A.· ·Yes.· Thank you.
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`·6· ·Q.· ·Okay.· So I have to ask have you ever been convicted
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`·7· · · · of a crime?
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`·8· ·A.· ·No.
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`·9· ·Q.· ·Ever been convicted of perjury?
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`10· ·A.· ·No.
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`11· ·Q.· ·Are you under the influence of any medication or other
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`12· · · · substance that would interfere with your ability to
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`13· · · · give truthful and correct answers today?
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`14· ·A.· ·No.
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`15· ·Q.· ·Have you ever had your deposition taken before?
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`16· ·A.· ·Yes, I have.
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`17· ·Q.· ·How many times?
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`18· ·A.· ·I don't have a count offhand.· I can guess.
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`19· ·Q.· ·Roughly?
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`20· ·A.· ·Maybe ten times.
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`21· ·Q.· ·And have you ever been deposed in connection with a
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`22· · · · patent office proceeding of the type that we're here
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`23· · · · for today?
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`24· ·A.· ·Yes, I have.
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`25· ·Q.· ·How many times?
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 7
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`·1· ·A.· ·Twice.
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`·2· ·Q.· ·And do you remember what those matters were?
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`·3· ·A.· ·Yes, I do.· One was IBM versus Intellectual Ventures,
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`·4· · · · and one was Microsoft versus a small company whose
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`·5· · · · name I am blanking out on.
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`·6· ·Q.· ·In the IBM versus Intellectual Ventures matter, which
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`·7· · · · party did you represent?
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`·8· ·A.· ·I was representing IBM.
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`·9· ·Q.· ·And were they the patent owner or the petitioner?
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`10· ·A.· ·They were the petitioner.
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`11· ·Q.· ·And how about in the Microsoft matter?
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`12· ·A.· ·I was an expert for the patent owner.
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`13· ·Q.· ·Which was the small company?
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`14· ·A.· ·Which was a small company whose name I'm just blanking
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`15· · · · out on right now.
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`16· ·Q.· ·Have you ever worked with Applications in Internet
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`17· · · · Time before this matter?
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`18· ·A.· ·No, I have not.
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`19· ·Q.· ·Have you ever worked with SoCal IP before this matter?
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`20· ·A.· ·No, I have not.
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`21· ·Q.· ·How did you come to get introduced to Applications in
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`22· · · · Internet Time in connection with this matter?
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`23· ·A.· ·An attorney I had previously worked with recommended
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`24· · · · me to SoCal IP and put us in touch.
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`25· ·Q.· ·How many hours did you spend on these matters leading
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 8
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`·1· · · · up to the filing of your declaration, roughly?
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`·2· ·A.· ·I'd have to guess.· I haven't actually kept track
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`·3· · · · exactly.· You probably have access to my bills.
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`·4· · · · Double digits.· High double digits.
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`·5· ·Q.· ·So high double digits meaning approaching a hundred
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`·6· · · · hours?
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`·7· ·A.· ·I -- I'm just going to say double digits.· I -- I
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`·8· · · · really don't want to guess at a number that you can
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`·9· · · · easily look up.
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`10· ·Q.· ·Okay.· I can't easily look it up, but so somewhere
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`11· · · · between ten and a hundred hours?
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`12· ·A.· ·Yes.
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`13· ·Q.· ·Okay.· And how many hours did you spend preparing for
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`14· · · · your deposition today, approximately?
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`15· ·A.· ·Today just a few minutes in the morning.· Yesterday I
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`16· · · · spent several hours.
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`17· ·Q.· ·And what did you do to prepare?
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`18· ·A.· ·I primarily went over the documents that I had
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`19· · · · reviewed before and my declaration, just refreshing my
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`20· · · · memory.· I met with counsel.
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`21· ·Q.· ·So I'm going to show you your declaration, which has
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`22· · · · been filed in all three of these matters, but I'll
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`23· · · · just make reference to the 01751 matter where it's
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`24· · · · Exhibit 2032.· Do you recognize this as your
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`25· · · · declaration?
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 9
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`·1· ·A.· ·Yes.· It appears to be.
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`·2· ·Q.· ·At Paragraph 10 you say that you are being compensated
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`·3· · · · at a rate of $660 per hour for your work in connection
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`·4· · · · with this matter; is that correct?
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`·5· ·A.· ·That is correct.
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`·6· ·Q.· ·Is that your standard rate for expert work?
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`·7· ·A.· ·Yes, it is.
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`·8· ·Q.· ·Do you ever charge a different rate in any matters?
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`·9· ·A.· ·Well, my rate has gone up over the years.· I have --
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`10· · · · so I've -- my current rate is 670.· This was set a few
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`11· · · · dollars less than that.
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`12· ·Q.· ·So at any given point in time you have an established
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`13· · · · rate that you use for all of your expert work rather
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`14· · · · than a rate that may vary depending upon the nature of
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`15· · · · the work; is that correct?
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`16· ·A.· ·That is what I attempt to do.· Sometimes matters take
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`17· · · · a while and so there may be continuing matters that
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`18· · · · are still going at an older rate.
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`19· ·Q.· ·Referring to Paragraph 11 of your declaration, you
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`20· · · · state that there are a number of references that you
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`21· · · · reviewed in preparing the declaration; correct?
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`22· ·A.· ·That is correct.· I have a small correction here.
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`23· · · · Sorry.
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`24· ·Q.· ·Sure.
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`25· ·A.· ·I realized as I was reviewing this yesterday that I
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 10
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`·1· · · · failed to mention the other patent which I obviously
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`·2· · · · did review.· So I mentioned the '482.· I didn't
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`·3· · · · mention the '111.
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`·4· ·Q.· ·The '111 patent.· Okay.
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`·5· ·A.· ·Yeah.· That was just a minor oversight.· Obviously I
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`·6· · · · did review that.
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`·7· ·Q.· ·Sure.· And did you review each of these references in
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`·8· · · · full in preparing your declaration?
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`·9· ·A.· ·Well, I did read each of these.· I don't know what
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`10· · · · reviewing in full would mean.· I guess I -- I did read
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`11· · · · each of these, and I was looking for things that were
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`12· · · · relevant to the matter at hand, so there might be
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`13· · · · portions that I skimmed and portions that I read more
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`14· · · · carefully.
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`15· ·Q.· ·But you read all of the material at least skimming
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`16· · · · through it?
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`17· ·A.· ·Yes, I did.
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`18· ·Q.· ·Are you aware that -- I'm going to refer to AIT rather
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`19· · · · than Applications in Internet Time.· Okay?· You
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`20· · · · understand if I reference AIT I'm talking about
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`21· · · · Applications in Internet Time?
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`22· ·A.· ·Yes.
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`23· ·Q.· ·Are you aware that AIT filed another declaration in
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`24· · · · these matters by a gentleman named Mr. Flynn?
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`25· ·A.· ·I was not aware of it until his name was mentioned to
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 11
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`·1· · · · me last night.
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`·2· ·Q.· ·Okay.· So in the process of preparing your declaration
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`·3· · · · you were unaware that AIT was also obtaining a
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`·4· · · · declaration from Mr. Flynn?
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`·5· ·A.· ·No.· I had no idea.
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`·6· ·Q.· ·Okay.· So obviously you did not confer with Mr. Flynn
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`·7· · · · before the filing of his declaration?
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`·8· ·A.· ·No.· And, in fact, I did not even know the name. I
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`·9· · · · was -- I was informed by counsel last night that there
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`10· · · · was another declaration.· That's why I know.
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`11· · · · Otherwise I wouldn't even have known.
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`12· ·Q.· ·So I'm going to show you the Declaration of James
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`13· · · · Flynn in matter number 01751.· This is Exhibit 2033.
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`14· ·A.· ·Okay.
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`15· ·Q.· ·Have you seen this before right now when I've shown it
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`16· · · · to you?
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`17· ·A.· ·No, I have not.
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`18· ·Q.· ·Okay.· Now I'd like to ask you a few questions about
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`19· · · · the patents that are the subject matter of these
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`20· · · · two -- of these three proceedings and there are two of
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`21· · · · them.· What we can refer to as the '482 patent is
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`22· · · · Exhibit 1001 in connection with matter 01751, and what
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`23· · · · we can refer to as the '111 patent is Exhibit 1001 in
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`24· · · · matter number 01750.
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`25· ·A.· ·Okay.
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`1-617-542-00391-617-542-0039
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 12
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`·1· ·Q.· ·At Paragraph 48 of your declaration you observed that
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`·2· · · · these two patents share a specification; is that
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`·3· · · · correct?
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`·4· ·A.· ·Let me get there.· Yes.
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`·5· ·Q.· ·Can you describe generally what the subject matter of
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`·6· · · · these patents is?
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`·7· ·A.· ·The subject matter of this patent is an integrated
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`·8· · · · change management unit.· It is a system for detecting
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`·9· · · · changes in primarily environmental regulations is what
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`10· · · · they're aimed at and using what they learn about the
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`11· · · · changes to update databases and make appropriate
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`12· · · · software configuration changes in terms of how
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`13· · · · companies would react to and meet the requirements of
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`14· · · · these regulations.
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`15· ·Q.· ·Do you believe these patents describe anything
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`16· · · · inventive?
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`17· ·A.· ·Yes, they do.
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`18· ·Q.· ·Could you tell us what that inventive subject matter
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`19· · · · is?
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`20· ·A.· ·The inventive subject matter is the ability to find
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`21· · · · changes of interest across the Internet and to be able
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`22· · · · to make appropriate consequent changes in the programs
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`23· · · · that are run and the databases in which these records
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`24· · · · are maintained in response.
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`25· ·Q.· ·So you believe the inventors of these patents were the
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`HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016HOSAGRAHAR JAGADISH, PH.D. - 06/23/2016
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`Page 13
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`·1· · · · first ones to detect changes over the Internet and
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`·2· · · · update a database?
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`·3· ·A.· ·No.· That is just one part of the claimed invention,
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`·4· · · · so I -- I think that in terms of the specific novel
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`·5· · · · systems and methods, we would -- we could look at the
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`·6· · · · claim language to get that stated precisely. I
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`·7· · · · wouldn't want to characterize it in a loose and
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`·8· · · · general way leaving out many parts of the invention.
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`·9· ·Q.· ·Okay.· So if we could take a look at Paragraph 23 of
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`10· · · · your declaration.· You say that an application program
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`11· · · · is a "higher level program for use by an end-user to
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`12· · · · perform specific kind of work that is useful to the
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`13· · · · end-user; its work is not related to the computer
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`14· · · · itself, and therefore is not a utility."· Correct?
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`15· ·A.· ·That is correct.
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`16· ·Q.· ·So when you say higher level program, what's the frame
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`17· · · · of reference?· Higher than what?
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`18· ·A.· ·It is common in computer systems to have multiple
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`19· · · · layers or levels of software, so there's low level
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`20· · · · software that is close to the hardware doing low level
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`21· · · · bookkeeping, flipping bits, getting signals from one
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`22· · · · place to another, managing resources internal to a
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`23· · · · machine.· Depending on the size and scope and
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`24· · · · complexity of the system, there may be multiple
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`25· · · · levels.· At the very least one talks about a system
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`·1· · · · level and an application level, that's two levels, but
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`·2· · · · I think that it's much more common to have multiple
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`·3· · · · intermediate levels, so there might be a database
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`·4· · · · level, which is not really running the system, so from
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`·5· · · · the computer perspective, the database is above the
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`·6· · · · operation of the computer, but from the application or
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`·7· · · · the user perspective, the database is just another
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`·8· · · · service that is being provided by the computer, and so
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`·9· · · · it would be somewhere in between in terms of levels.
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`10· · · · One would think of many other such things, such as
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`11· · · · networking, things across the web, which is relevant
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`12· · · · in the context of this patent.· And what I would think
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`13· · · · of as an application program or application software
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`14· · · · is something that is meaningful to the user in terms
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`15· · · · of this is something that the user wants to run
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`16· · · · because it's doing something useful for the user.
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`17· ·Q.· ·Okay.· Is a database an application program?
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`18· ·A.· ·As I mentioned, we have typically multiple layers in a
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`19· · · · modern computer system, and from a user perspective, a
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`20· · · · database will usually not be an application program.
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`21· · · · If you're a computer designer or looking at it from
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`22· · · · the perspective of the operating system or just the
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`23· · · · resources of the hardware, you would characterize
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`24· · · · everything that is not part of your kernel as
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`25· · · · application because it's beyond what you do, and you
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`·1· · · · may not distinguish between the multiple layers that
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`·2· · · · are above you.· I think that the -- what I just said
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`·3· · · · notwithstanding in the context of something like this
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`·4· · · · patent where there is a particular user motivation in
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`·5· · · · this case, a lot of spaces devoted in the
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`·6· · · · specification describing the regulatory environment
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`·7· · · · and environmental regulation and so on, it is clear
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`·8· · · · that the perspective of the user, which is important
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`·9· · · · in defining what should be an application, is
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`10· · · · something that addresses the user's interests where
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`11· · · · the user is somebody who cares about compliance with
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`12· · · · environmental rules.
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`13· ·Q.· ·So I'm not sure I was clear on what the answer was.
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`14· · · · Do you consider a database in the context -- let me
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`15· · · · strike that.
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`16· · · · · · · · · ·These claims refer to an application
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`17· · · · program.· Is a database an application program as that
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`18· · · · term is used in these patents?
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`19· ·A.· ·No, it is not.
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`20· ·Q.· ·And why not?
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`21· ·A.· ·I think that's what I was trying to explain, and maybe
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`22· · · · I said too much in response to the previous question
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`23· · · · and ended up being unclear or being confusing. I
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`24· · · · think what I was trying to say was the context of
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`25· · · · these patents clearly indicates what a user should be
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`·1· · · · from the perspective of this -- these patents, and an
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`·2· · · · application is something that would be responsive to
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`·3· · · · the needs of such a user and would do something useful
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`·4· · · · for that user.· That's the context that is
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`·5· · · · established.· And therefore something that's merely a
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`·6· · · · database is going to be a utility.· It's not something
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`·7· · · · that in itself is doing something useful for the user.
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`·8· · · · It's a tool.· It's a -- it's a part of the system.
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`·9· · · · The system has multiple layers.· The layer that's
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`10· · · · actually doing useful work for the user is something
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`11· · · · that's helping the user navigate the regulatory
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`12· · · · environment, understand environmental rules and comply
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`13· · · · with them.· These are the sorts of things that we are
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`14· · · · building a system to do.· That's the application.
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`15· · · · Things that are doing lower level tasks and support
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`16· · · · are not the application.
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`17· ·Q.· ·Okay.· So a database stores data; correct?
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`18· ·A.· ·That is correct.
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`19· ·Q.· ·Okay.· And do I understand correctly you think storing
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`20· · · · data -- storing a user's data is not performing work
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`21· · · · that's useful for the user?· Is that correct?
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`22· ·A.· ·No.· That is not what I said.· Moving a bit on a wire
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`23· · · · is also something that is useful to a user.· If I'm
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`24· · · · trying to add two numbers, some -- some voltages are
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`25· · · · going up and down, and that is -- if that didn't
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`·1· · · · happen, I wouldn't be able to perform the addition
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`·2· · · · that I would like to have the computer system do for
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`·3· · · · me.· In a similar way, if -- as part of what I need to
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`·4· · · · do, some value had to be stored somewhere.· If that
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`·5· · · · didn't happen, I would not be able to do what I wanted
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`·6· · · · to accomplish.· Therefore, it is certainly not the
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`·7· · · · case that the storage of some value in a database is
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`·8· · · · not useful to me, but my point is that that in itself
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`·9· · · · doesn't constitute an application.· It constitutes a
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`10· · · · component task of an application or a service that is
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`11· · · · being utilized by my application.· That is not my
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`12· · · · purpose.· That is not my application.· That is an
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`13· · · · underlying system utility.
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`14· ·Q.· ·So is it your testimony that a database is a utility?
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`15· ·A.· ·In the context of these patents, a database is a
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`16· · · · utility for the user.
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`17· ·Q.· ·So when you say in the context of these patents, why
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`18· · · · are you qualifying your answer about whether a
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`19· · · · database is a utility based upon the context of these
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`20· · · · applications?· Sorry.· The context of these patents.
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`21· ·A.· ·The qualification is because when one considers
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`22· · · · computer systems that are multiple layers as I was
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`23· · · · trying to say a few minutes ago and depending on the
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`24· · · · framing of the matter at hand, the matter of interest,
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`25· · · · it is commonly the case that one will refer to the
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`·1· ·lower layer as the system and the upper layer as the
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`·2· ·application, and so you might have six layers, and if
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`·3· ·the current focus of interest is between layers three
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`·4· ·and four, then you might for the purposes of that
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`·5· ·consider layer four to be application, even though
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`·6· ·it's still far removed from the user.· So if you're a
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`·7· ·computer designer, you're not building a database. A
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`·8· ·database is something that uses your computer, and for
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`·9· ·you anything that uses your computer is an application
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`10· ·on the computer.· It's something that somebody wants
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`11· ·to do because it does something useful for them, and
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`12· ·you don't know any better and that's not your concern
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`13· ·and you're -- you're just worried about what are the
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`14· ·demands that these programs, these applications that
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`15· ·other people might write that will put on my machine,
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`16· ·how do I satisfy them best.· Those are the primary
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`17· ·things you think about.· If one looks at things from a
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`18· ·user perspective, the application is the thing that's
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`19· ·responsive to the user's specific needs, and
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`20· ·everything below that are services that are supporting
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`21· ·the user accomplish what they want to do and they're
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`22· ·supporting the application.
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`23· · · · · · · If you look at the ISO, the International
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`24· ·Standards Organization, model, for instance, they have
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`25· ·a multilayer model for networking, and -- which is a
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`·1· ·very standard sort of thing, and it has seven or so
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`·2· ·layers, and you will see that there are multiple
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`·3· ·levels of services and the application layer is near
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`·4· ·the top, and that's what the user interacts with.
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`·5· ·That's the thing that's doing useful work for the
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`·6· ·user.· And there are all kinds of things that happen
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`·7· ·at lower levels.· And at each level of concern, well,
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`·8· ·you might say, well, everything above that for me at
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`·9· ·that lower level is an application.
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`10· · · · · · · And so it was primarily because of this
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`11· ·sort of loose two level dichotomy type of thinking,
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`12· ·which is commonly the case, that I was careful to
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`13· ·point out that a database is not an application from
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`14· ·the perspective of this patent or, in fact, if you
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`15· ·just ask me in general, a database wouldn't be an
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`16· ·application, but if you ask me can I find some
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`17· ·document where a database would have been referred to
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`18· ·as an application, I probably could if I looked at
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`19· ·some computer design document where somebody was
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`20· ·trying to say, well, the workload of a database often
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`21· ·causes movement of data in this manner, therefore we
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`22· ·should make sure that our bus went to so-and-so or
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`23· ·something like this because from the perspective of
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`24· ·that computer designer the database would be an
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`25· ·application and they may have referred to a database
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`·1· · · · as an application.· That doesn't make it appropriate
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`·2· · · · to think of a database as an application.· It usually
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`·3· · · · is not.
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`·4· ·Q.· ·Can a user use an application to do things that are
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`·5· · · · not work that's useful to the user?
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`·6· ·A.· ·So you want to know whether there can be work that is
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`·7· · · · not useful?· Is that a fair reading of your question?
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`·8· ·Q.· ·Yeah.· So your interpretation of an application
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`·9· · · · program is that it's not only a higher level program
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`10· · · · that's used by an end-user but it performs specific
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`11· · · · kind of work that is useful to the end-user.· And so
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`12· · · · my question is, can there be software that a user uses
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`13· · · · that does not do work that's useful to the user?
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`14· ·A.· ·I haven't considered that issue carefully.· This is a
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`15· · · · definitional issue.· I'm trying to think about
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`16· · · · software that does work that is not useful.· I mean, I
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`17· · · · could write now some software that does something and
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`18· · · · it's not useful.· So I suppose there are things like
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`19· · · · this that one could work through hypothetically, and I
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`20· · · · just haven't considered such hypotheticals.· The point
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`21· · · · I'm trying to make here and the point of the
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`22· · · · definition here which is really drawn from the
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`23· · · · extrinsic definitions that were in the Crovella
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`24· · · · declaration is simply to point out that the work that
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`25· · · · we are considering -- the work that -- if you assume
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`·1· · · · that -- let's -- let's not worry about programs that
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`·2· · · · don't do anything useful or programs that aren't doing
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`·3· · · · work or, you know, hypotheticals of that nature.
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`·4· · · · Right?· Typically a computer program does something,
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`·5· · · · it does something useful.· That's why you write a
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`·6· · · · program.· The programs that are doing things that are
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`·7· · · · directly useful to the end-user are application
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`·8· · · · programs and things that are supporting this
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`·9· · · · application program to do its thing are system
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`10· · · · programs, things that are below this or services of
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`11· · · · various types, things that are related to the computer
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`12· · · · itself for various services that it provides to the
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`13· · · · application.
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`14· ·Q.· ·But I'd like to go back to your hypothetical for a
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`15· · · · second.· So I understand you to have said you could
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`16· · · · write software that would be at the highest level that
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`17· · · · would not do anything useful to the user.· Would that
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`18· · · · be an application program?
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`19· ·A.· ·I haven't carefully considered that question. I
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`20· · · · would -- I would venture yes, because I can -- if I
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`21· · · · write an application program and it's buggy, it could
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`22· · · · do something that's useless or it could actually harm
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`23· · · · because it gave you the wrong answers, for instance,
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`24· · · · and misled you into doing something that it shouldn't
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`25· · · · have.· That wouldn't change the character of the
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`·1· · · · program.· It would still be an application program, a
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`·2· · · · faulty one.
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`·3· ·Q.· ·Right.· So your definition of an application program
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`·4· · · · that restricts it doing work that's useful to the
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`·5· · · · end-user actually excludes things that you would agree
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`·6· · · · are application programs; right?
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`·7· ·A.· ·Not really.· I think we considered hypotheticals a
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`·8· · · · minute ago that were really hypothetical.· Normally
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`·9· · · · one isn't operating systems that have major bugs in
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`10· · · · them and you don't try to work things with -- with
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`11· · · · systems that are meant to do something useless. I
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`12· · · · think -- I think that if one considers normal systems
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`13· · · · that are doing what one would expect them to do that
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`14· · · · have been written as one would expect systems to be
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`15· · · · written, I believe that this definition is appropriate
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`16· · · · and adequate.· I don't think that one should tie one's
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`17· · · · self up in knots dealing with hypotheticals that are
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`18· · · · strange systems.
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`19· ·Q.· ·So let's take a look at Claim 1 of the '482 patent.
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`20· · · · And I'd like to ask you some questions about the
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`21· · · · relationship between the layers that are recited in
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`22· · · · this claim and what the claim refers to as the
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`23· · · · dynamically generated application.· Okay?· So the
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`24· · · · second layer contains information about functions that
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`25· · · · are common to a variety of applications; right?
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