` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`COXCOM, LLC, ) CASE IPR2015-01760
` )
` Petitioner, ) PATENT 6,549,130
` )
`vs. )
` )
`JOAO CONTROL & MONITORING )
`SYSTEMS, LLC, )
` )
` Patent Owner. ) VOLUME II
`- - - - - - - - - - - - - - - )
`
` CONTINUED DEPOSITION OF
` RICHARD BENNETT
`
` Friday, April 29, 2016, 9:37 a.m.
` Job No. CS2300075
` 1100 Peachtree Street, N.E.
` Suite 2800
` Atlanta, Georgia 30309
` ---------------------------------------------
` WANDA L. ROBINSON, CRR, CCR, No. B-1973
` Certified Shorthand Reporter/Notary Public
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` APPEARANCES OF COUNSEL
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`Appearing on Behalf of the Petitioner:
`
` D. CLAY HOLLOWAY, ESQUIRE
` Kilpatrick Townsend & Stockton LLP
` 1100 Peachtree Street, N.E.
` Suite 2800
` Atlanta, Georgia 30309-44528
` 404.815.6537 404.541.3484 (Fax)
` E-mail: Cholloway@ktslaw.com
`
`Appearing on Behalf of the Patent Owner:
`
` STEVEN RITCHESON, ESQUIRE
` Insight, PLC
` 98000 Topanga Canyon Boulevard
` #347
` Chatsworth, California 91311
` 818.882.1030
` E-mail: swritcheson@insightplc.com
`
`ALSO PRESENT:
` Raymond Joao
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` INDEX OF EXAMINATIONS
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`By Mr. Ritcheson Page 4, 71
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`By Mr. Holloway Page 41, 76
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`Page 3
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` INDEX OF EXAMINATIONS
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`NO. DESCRIPTION PAGE
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`9 Institution Review IPR2015-01762 5
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` Coxcom vs. Joao Control & Monitoring
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`10 US Patent No. 7,397,363 16
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`11 Declaration of Richard Bennett In Support of 42
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` No. 6,549,130
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`12 Declaration of Richard Bennett In Support of 43
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` No. 7,397,363
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`13 Declaration of Richard Bennett In Support of 44
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` No. 7,397,364
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`14 Petition For Inter Partes Review of U.S. 54
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` Patent No. 6,549,130
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` RICHARD BENNETT, VOLUME II,
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`previously sworn, was examined and testiifed as
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`follows:
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`CROSS-EXAMINATION (Continuing)
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`BY MR. RITCHESON:
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` Q Mr. Bennett, you know you're still under
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`oath, correct?
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` A Yes, I know.
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` Q Did you discuss the testimony you provided
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`yesterday or anticipate giving today with anyone?
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` A No, I did not.
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` Q I think we'll focus today on -- I'm
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`handing you a stack of exhibits, but that's not the
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`one we're going to focus on -- on Exhibit 8, which
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`is the Declaration of Richard Bennett in Support of
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`Petition for Inter Partes Review of U.S. Patent No.
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`7,397,363. I think you identified this yesterday
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`but if you can identify that again.
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` Is that the declaration you submitted with
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`respect to the '363 patent?
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` MR. HOLLOWAY: I just object and let's
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` identify --
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` MR. RITCHESON: Is there another '363 IPR
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` that he's involved with?
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` MR. HOLLOWAY: There is another '363 which
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` he submitted a declaration, yes.
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` MR. RITCHESON: I believe this is 1762.
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` MR. HOLLOWAY: That works. '363 1762.
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` MR. RITCHESON: Thank you.
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` MR. HOLLOWAY: Thank you.
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`BY MR. RITCHESON:
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` Q Mr. Bennett, this is the '363 declaration
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`that you submitted. It's in support of petition for
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`inter partes review, correct?
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` A Correct.
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` MR. RITCHESON: Let me see if we have a
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` copy of the institutional decision, 1762.
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` MR. RITCHESON: Can we mark this.
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` (WHEREUPON, Exhibit 9 was marked for
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` identification.)
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`BY MR. RITCHESON:
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` Q I'm handing you a document marked Exhibit
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`9. Do you understand this is the institution
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`decision that relates to the declaration that you
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`have identified for us as Exhibit 8?
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` Feel free to look at it.
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` A Yes, I do.
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` Q You'll note in the middle of the page
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`there's a case IPR No. 2015-01762.
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` Do you see that?
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` A I see it.
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` Q For convenience, is it all right with you
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`if we refer to this institution proceeding as a
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`1762?
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` A That's fine.
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` Q With respect to the declaration that you
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`submitted, which is Exhibit 8, my understanding is
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`that there were two bases for your belief that the
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`claims at issue in 1762 were valid: One is in view
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`of Koether, and the other is Koether in view of
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`Crater.
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` Is that generally correct?
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` MR. HOLLOWAY: Object to form.
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` A I wouldn't put it that way. I believe
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`that the contested claims in this patent are invalid
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`because they're anticipated by an enormous body of
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`prior art. In fact, the body of prior art that
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`anticipates these claims is so vast that it's almost
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`incalculable.
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` Koether and Crater patents are simply
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`examples of that prior art that are particularly
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`pertinent to the claims in this patent.
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` Q You used the word "anticipate." What does
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`the word "anticipate" mean?
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` MR. HOLLOWAY: Objection; form.
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` Q As you've used it.
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` MR. HOLLOWAY: Same thing.
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` A It means that work that was done prior to
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`the filing, filing date of this patent.
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` Q How does anticipation, as you've described
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`it, compare to obviousness?
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` A Well, anticipation is simply a location in
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`time, and the cumulative effect of multiple
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`instances of anticipation is obviousness.
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` Q So is it your understanding a combination
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`of references is anticipation?
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` A I don't believe I would define
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`anticipation that way, no.
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` Q Do you understand what the meaning of
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`anticipation is within the federal patent laws?
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` A No, I don't, and I'm not trying to be --
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`I'm not a lawyer and I'm not trying to legalize the
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`term. I'm just using the ordinary English meaning
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`of the word "anticipate."
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` Q So when you said there was an enormous
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`body of work, I think that anticipated --
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` A Precedes. I'll say that.
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` Q You mean it precedes it?
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` A Uh-huh. Yes.
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` Q Just to be clear, though, the specific
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`comments that you've made in your declaration with
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`respect to the 1762 proceeding are based on what's
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`called obviousness; is that correct?
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` A Yes.
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` Q If we turn to Page 3 of Exhibit 9, for
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`example, just so that there is greater clarity with
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`respect to this line of questioning, there's a chart
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`there. This is from the institution decision that
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`was issued by the Patent Trial and Appeal Board,
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`correct?
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` A Uh-huh. (Affirmative.)
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` Q Yes?
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` A Yes.
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` Q That chart there indicates Koether as a
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`challenge alone, combined with information that
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`would have been known to a person of ordinary skill
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`in the art, and then it lists a series of claims,
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`correct?
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` A Correct.
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` Q Then there's Koether and Crater, and
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`there's a series of additional claims?
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` A Correct.
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` Q To the best of your knowledge, is this
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`chart accurate?
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` A I believe it is.
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` Q In your declaration, which is again
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`Exhibit 8, you describe what you believe would
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`qualify one as a person of ordinary skill in the art
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`at the time. Do you recall that?
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` A I do recall that.
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` Q I think it's Paragraph 17?
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` A Seventeen and 18.
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` Q Seventeen and 18. And in 17, for
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`example -- and you've abbreviated a person of
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`ordinary skill in the art as POSITA, correct?
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` A Yes, I have.
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` Q That's the conventional abbreviation for
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`that phrase used?
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` A I've seen that used several times.
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` Q So if I use the term "POSITA," you'll know
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`what I'm talking about?
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` A I'll understand you're not talking about
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`Los Pasitos in California.
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` Q Exactly right. If there's ever any
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`confusion about a restaurant, you'll let me know.
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` With respect to the POSITA, the
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`identification of POSITA in 17, you offer that you
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`believe that a POSITA would have had a bachelor's
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`degree in engineering or equivalent course work and
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`at least two years of experience in network systems.
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` Do you see that?
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` A Yes, I do.
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` Q Who created this definition of POSITA?
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` A I did, but it's -- it probably deserves
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`some explanation, because at the time of this
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`patent -- I'm putting myself back in 1996 -- by that
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`time I had already be a manager in an engineering
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`role in hiring people for, say, ten years, and this
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`is pretty much the basic job description, and I
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`would put in an ad when I was looking to add an
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`engineer to my staff.
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` Now, the interesting thing about this
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`definition is that it says a Bachelor's degree in
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`engineering or equivalent course work and I don't
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`have a Bachelor's degree in engineering. I have a
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`bachelor's degree in philosophy.
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` So it doesn't describe me, it describes
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`the people that I was hiring at that time. And so
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`to understand why I think I'm a POSITA, we have to
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`read Paragraph 18, because by 1996 I already had 19
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`years of professional engineering work experience,
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`and I think strictly on that basis alone I would be
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`considered a POSITA, if I had never cracked a single
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`book on computer science.
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` MR. RITCHESON: I would like to request
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` nonresponsive.
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`BY MR. RITCHESON:
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` Q I didn't ask you about you. I know that
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`you've had some dialogue about whether you're
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`POSITA. I'm not interested in 18. I'm interested
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`in 17. And my question was who developed the
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`definition of POSITA. That was my only question.
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` MR. HOLLOWAY: Objection; form.
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` Q Okay.
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` MR. HOLLOWAY: Are you asking another
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` question?
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` Q Do you understand that that was my
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`question?
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` MR. HOLLOWAY: Objection; form.
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` A When you say who developed it --
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` Q The definition in 17. I believe you
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`testified that you did, correct?
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` MR. HOLLOWAY: Objection to form.
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` A Well, I said that I think in remarks that
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`you've asked to be stricken from the record.
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` Q That's what I'm asking you to verify that.
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` A So we don't want to refer to remarks that
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`have been stricken, do we?
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` Q That's why I'm asking you to repeat it.
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` MR. HOLLOWAY: Objection; form.
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` A I developed that -- yes, I did. I mean I
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`signed the declaration.
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` Q But, for example, did you draft this
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`language?
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` A I can't recall whether I drafted that or
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`it was suggested to me by the attorneys. But in
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`either case, this is what the declaration says and I
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`signed it.
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` Q Well, I understand that. My question is,
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`why is this right?
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` A I think it's actually not right. I think
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`it's a bit too terse, and I think what is missing is
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`where it says "Bachelor's degree in engineering," it
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`should say "Bachelor's degree in engineering or
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`computer science." And where it says "or equivalent
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`course work," it should say "or equivalent course
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`work or experience."
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` Q So you think this should be changed?
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` A Yes, I do.
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` MR. HOLLOWAY: Objection; form.
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` A It could be improved.
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` Q With respect to the development of the
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`POSITA that's identified in Paragraph 17, can you
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`tell me what factors were considered in coming to
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`the conclusion this was the appropriate definition?
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` A Paragraph 17 is representative to the kind
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`of ads I was placing in newspapers and job search
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`sites when I was hiring engineers.
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` Q Did you consider, for example or was it
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`considered, to your knowledge, the educational
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`experience and training of Mr. Joao?
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` A No, I didn't consider that. I wasn't
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`hiring him.
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` Q Now, I just want to verify that my
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`understanding is correct and we can move on, is that
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`with respect to, and looking back at the institution
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`decision, and that was at the chart at Page 3, my
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`understanding is that the challenged claims based on
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`Koether alone, which is the first row, substantive
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`row of that table, that all of those claims the PTAB
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`determined not to institute on. Is that your
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`understanding?
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` A That's my understanding.
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` Q So for the purposes of today, I'm going to
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`focus on the remaining claims, which are Koether and
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`Crater, which is in the second substantive row.
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`Okay?
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` A Okay. It's a peculiar decision on the
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`PTAB's part, by the way.
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` Q With respect to your declaration -- and
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`I'm going to move back and forth a little bit
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`between these two documents and the '363 patent,
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`just so you know.
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` With respect to your declaration, I'd just
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`like to get an understanding a little bit, because
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`it is confusing, of the flow diagrams that appear on
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`-- I have it listed as Paragraph 56, or after
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`Paragraph 56.
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` I believe that's page -- it's actually on
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`Pages 26 and 27 of your declaration.
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` A Okay.
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` Q I just want to make sure that I am fully
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`comprehending what these diagrams are intended to
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`communicate.
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` Could you walk us through them, please?
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` A Okay. The first diagram --
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` Q At the top of 27?
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` A A the top of Page 27 there's a diagram,
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`the title of which is on the previous page. So if
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`we turn back to Page 26.
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` Q Got it.
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` A At the bottom of the page it says Claim 42
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`dash -- I mean slash 84. And that's meant to --
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`that title is meant to go with the diagram at the
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`top. So you have that. That's the pagination
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`error.
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` And so what we have here is the three
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`devices that are called out in both the Claim 42 and
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`Claim 84, which are virtually identical, by the way.
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`The three devices, we have a first processing
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`device, a second processing device, and a
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`communication device. Wherein -- when we compare
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`these two diagrams, first is used in a different way
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`between the two diagrams. So in one instance first
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`is at the premise, and third is at the control
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`center, and in the other case they're inverted.
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` So the text following that in Paragraph 57
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`explains the names and the designations between
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`these devices. So that's one difference, is the
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`different nomenclature, different use of the same
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`nomenclature in the Claim 1 versus Claims 42 and 84.
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` And the other difference is that the
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`apparatus described in Claims 42 and 84 is a closed
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`loop classical control system, in which there's
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`feedback between the control device and the
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`controller, such that the controller can make
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`changes to the control device and the control device
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`advises the controller of how its state is changing
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`over time.
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` Whereas in Claim 1, Claim 1 is not
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`actually what we would call -- well, it's, it's a
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`system in which there is no feedback loop. And I
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`think some people would say that therefore it's not
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`really a control system. It's not a process control
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`system certainly.
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` Claim 1 refers to a vehicle theft oriented
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`apparatus. So a car can be disabled if it's stolen
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`from the cell phone, which is the second processing
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`device.
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` Q This is for which one, I'm sorry?
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` A That's for Claim 1.
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` Q Are you done with your answer?
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` A Yes.
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` Q Let's turn to Claim 1, because I'm having
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`a challenge with a couple of things.
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` I think you said, and I think you just
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`misspoke but I think you said Claim 1 was directed
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`to vehicles. Maybe I'm just reading that wrong, so
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`why don't we have a look at '363.
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` A Is the patent in the record?
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` (Whereupon Exhibit 10 was marked for
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` identification.)
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`BY MR. RITCHESON:
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` Q I think it's Column 104.
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` A Okay.
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` Q This is a premises claim?
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` A Yes.
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` Q So with respect to your declaration, and
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`I'm putting this up alongside the Claim 1 next to
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`your flow diagram.
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` The first processing device is, as it's
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`listed here, is an intermediary device, correct?
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`That is intermediate between the second and third
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`processing devices?
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` MR. HOLLOWAY: Objection; form.
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` A Well, they're all intermediary to each
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`other. On Claim 1?
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` Q Claim 1.
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` A Yes. The first processing device is an
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`intermediary because the actions in this apparatus
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`are all initiated by the second processing device.
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` Q So the first processing device is, the
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`intermediate device is that the first -- Claim 1
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`describes as being associated with a website. Do
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`you see that?
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` A Yes.
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` Q What is the phrase "associated with a
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`website" mean?
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` What did you understand it to mean when
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`you signed your declaration?
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` A I found that expression rather vague. I'm
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`not really sure what associated with a website
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`means.
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` Q What did you understand it to mean when
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`you signed your declaration?
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` A Well, it means there's some sort of
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`logical or physical connection between the device
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`and the website, but the nature of that connection
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`is unclear.
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` Q We have the second processing device
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`responding to a signal -- I'm sorry. The first
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`processing device responding to a signal from a
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`second processing device; is that accurate?
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` A Yes.
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` Q Is it true then that the terms "first
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`signal" and "second signal" don't refer to an order
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`of signals?
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` A That's correct.
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` Q It would appear, would it not, that that
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`language merely refers to a signal sent by a first
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`processing device and a second processing device,
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`respectively?
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` A Yeah. The only consistency in the
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`terminology is that if the number of the -- the
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`number that's applied to the signal and the number
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`that's applied to the device are consistent. So if
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`it's the second signal, we know it comes from the
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`second processing device. If it's the first signal,
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`it comes from the first processing device.
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` Q In looking at the first processing device,
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`which is the intermediate device, there is included
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`a requirement that that intermediate device
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`determine -- I'm truncating here -- but determine
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`whether an act or an option is authorized or
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`allowed; is that correct?
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` MR. HOLLOWAY: Objection; form.
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` A Yes. The sole function that's attributed
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`to the first processing device, apart from relaying
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`the signal that comes from the second processing
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`device on to the third processing device, is
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`validating that the action that the signal carries
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`is one of the legitimate actions associated with the
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`system.
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` Q You use the term "relay," but you'll agree
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`that the term "relay" doesn't appear anywhere in
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`Claim 1, correct?
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` MR. HOLLOWAY: Objection; form.
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` A Relay is -- I don't recall whether that
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`word is used in the patent or not, but I think it
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`accurately describes the function.
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` Q My question was whether it appeared
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`anywhere in Claim 1. Are you aware of any instance?
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` A I'm not aware of any instance in which the
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`term "relay" is used.
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` Q Would you agree that phrase, as is used in
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`Claim 1, determines whether an action is authorized
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`or allowed, is not the same as determining whether a
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`person is authorized or allowed to perform an
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`action?
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` A There's an enormous difference.
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` Q When a system determines whether a person
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`is authorized or allowed, is that frequently what's
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`referred to as a password?
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` MR. HOLLOWAY: Objection.
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` Q Or password protection?
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` MR. HOLLOWAY: Objection; form.
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` A In order to determine that a person is
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`authorized to perform a particular action on a
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`system, the terminology that engineers commonly use
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`is authentication and authorization. Well,
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`authentication and identification, and that can be
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`done through a combination of a user ID and a
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`password.
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` Q You've heard of the concept of signal
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`factor authentication?
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` A Yes, I have.
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` Q What is that?
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` A It's where a password is a single --
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`simply entering the correct password gives you
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`access to the system. That's signal factor
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`authentication. And the contrast of that would be
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`two factor, a multifactor authentication.
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` Q In your declaration, Paragraph 65, you
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`address Claim 1. You also -- did I say 65. I meant
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`63.
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` I recognize you also include some language
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`in 64 as well, but I'm focused on 63.
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` A Okay.
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` Q Are you there?
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` A Yes.
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` Q Now, how do you get the element of
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`determining whether an action is authorized or
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`allowed from the combination of Koether and Crater?
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` MR. HOLLOWAY: Objection; form.
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` A They both, Koether and Crater, talk about
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`authenticating the user --
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` Q Yes.
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` A -- to determine that the user is
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`authorized to perform the action that the user
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`wishes to perform.
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` Claim 1 uses the term "authorization" in
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`the sense that it determines whether the command,
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`the action, that a user is seeking to perform
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`through the system is one of the actions that the
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`system knows how to perform. But it uses the term
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`"authorization." Authorized or allowed.
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` And in my thinking, going through this,
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`I'm reminded of the structure of elements of
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`computer systems, such as device drivers. I have a
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`lot of professional experience developing device
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`drivers. And device drivers are pieces of software
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`in a computer system that control some hardware.
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`They control like a terminal or an interface or a
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`printer or a network access.
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` And the way device drivers are typically
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`accessed by applications is the application issues a
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`command to the device driver for an action that it
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`wants to perform. It could be making the device
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`available, it could be transmitting information, it
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`could be receiving information, it could be altering
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`a parameter. And these actions are signaled to the
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`device driver by numeric codes.
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` So typically the very first stage in a
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`device driver is a validation that the code that the
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`application issued to the device driver corresponds
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`to one of the actions it knows how to perform. So,
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`say, it has to be a number in the range of zero
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`through eight. So it's a fairly trivial operation
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`that the device driver will do to validate that the
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`code falls within that range.
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` And this is what I took from Claim 1, was
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`that sort of an action was taking place in the first
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`processing unit.
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` Q Isn't that the sort of standard operation
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`of any computer?
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` MR. HOLLOWAY: Objection; form.
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` A Isn't what?
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` Q That is, that all computers will only
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`respond to commands that it recognizes?
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` A Well, computer is an awfully broad term.
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`It's a common feature of elements of operating
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`systems, and I think it's a common feature in the
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`design of network protocols. It's fairly typical in
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`those elements of a computer that involve a client
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`server relationship. That's a typical way in which
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`that relationship comes about.
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` Q But you seem to be limiting it for some
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`reason, but isn't it true that any computer -- I
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`mean that in the broadest possible sense -- will
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`only respond to commands that it recognizes?
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` A I can't disagree with that.
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` Q So if your understanding is correct, then
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`the terms "authorization" and "allowed," as it's
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`used in Claim 1 is meaningless, correct, because
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`it's part of any computer system?
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` A It's a very -- yes, it's a very -- I mean
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`it's a simple -- it is also what goes on inside the
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`computer, in the elements of the computer that are
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`looking at commands that have been issued to them by
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`users or other programs, is to identify whether it
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`knows what that command means, is that one of the
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`commands that I've been programmed to carry out.
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` So I think that's actually what's being
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`described in Claim 1 in terms of authorization, and
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`therefore you don't even need to go to Koether and
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`Crater to understand that there is no novelty in
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`that description. This is a very generic operation
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`that is, as you say, carried out by all computers in
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`response to all commands.
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` Q Thank you.
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` With respect to your declaration,
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`Paragraph 63, isn't it true in 63 you reference
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`password protection --
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` A Yes.
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` Q -- with respect to this section?
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` Did you mean to imply that a password,
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`which you described previously as being an
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`authentication, is the same as determining whether
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`an action is authorized or allowed?
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` MR. HOLLOWAY: Objection; form.
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` A It's a form of authorization.
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` So when you're authorizing an actor,
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`you're not doing something that's -- except in terms
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`of the degree of complexity, and there is a
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`commonality between authorizing a user and
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`authorizing. They're both an action. They're both
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`acts of authorization.
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` Q Is it not true that a password
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`authenticates a person?
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` MR. HOLLOWAY: Objection; form.
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` A It need not identify a person. Passwords
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`can also be used to authenticate a process or a
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`program.
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` Q Are you aware that the attorneys at
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`Venable argued as recently as two weeks ago that a
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`password does not satisfy this very same claim
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`limitation in this very same patent?
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` MR. HOLLOWAY: Objection; form.
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` A No, I'm not. I haven't been in any
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`communication with Venable ever about this patent.
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` Q '363, Claims 3 and -- let's turn to 3 for
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`now. This is a dependent claim, correct, that
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`depends from Claim 1?
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` A Yes.
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` Q That the second processing device is a
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`wireless device, correct?
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` A Correct.
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` Q Looking at your chart in your declaration,
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`that would be effectively the initiating device,
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`correct?
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` A Yes. So it could be something like a cell
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`phone or a PDA.
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` Q What is the wireless device that you rely
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`on as the initiating device with respect to Claim 3?
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` A In the Koether patent there is a -- all
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`the kitchen devices, kitchen level devices, which
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`are the premises devices, are wireless devices.
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`There's a base station and it connects to the
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`various devices wirelessly.
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` Koether also describes portable devices
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`that can be used within the kitchen base station
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`region of coverage, such as a laptop and a palm
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`device, expressly identifies a palm, a personal
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`digital assistant, as one of the devices that can be
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`used on this network.
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` So the PDA would be used by repair
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`personnel in the kitchen repairing equipment,
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`checking on the repair work.
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` Q Let's have a quick look at Koether so I'm
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`remembering what you're talking about.
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` What is the reference you have to Koether
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`there for the handheld device?
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` A So there are two explicit -- three
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`explicit references. Column 7, Lines 16 through 49,
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`Column 14, Lines 27 through 39, and then Column 7,
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`Lines 54 through 62.
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` Q Let's have a peak at those.
`
` I'm sorry.