UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`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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`800-567-8658
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`Veritext Legal Solutions
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`PETITIONERS' EXHIBIT 1013
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`Petitioner CoxCom, LLC - Exhibit 1013 Page 1
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`1 RICHARD BENNETT, VOLUME II,
`2 previously sworn, was examined and testiifed as
`3 follows:
`4 CROSS-EXAMINATION (Continuing)
`5 BY MR. RITCHESON:
`6 Q Mr. Bennett, you know you're still under
`7 oath, correct?
`8 A Yes, I know.
`9 Q Did you discuss the testimony you provided
`10 yesterday or anticipate giving today with anyone?
`11 A No, I did not.
`12 Q I think we'll focus today on -- I'm
`13 handing you a stack of exhibits, but that's not the
`14 one we're going to focus on -- on Exhibit 8, which
`15 is the Declaration of Richard Bennett in Support of
`16 Petition for Inter Partes Review of U.S. Patent No.
`17 7,397,363. I think you identified this yesterday
`18 but if you can identify that again.
`19 Is that the declaration you submitted with
`20 respect to the '363 patent?
`21 MR. HOLLOWAY: I just object and let's
`22 identify --
`23 MR. RITCHESON: Is there another '363 IPR
`24 that he's involved with?
`25 MR. HOLLOWAY: There is another '363 which
`
`1 APPEARANCES OF COUNSEL
`
`Appearing on Behalf of the Petitioner:
`
`23
`
`4
`
` D. CLAY HOLLOWAY, ESQUIRE
`5 Kilpatrick Townsend & Stockton LLP
` 1100 Peachtree Street, N.E.
`6 Suite 2800
` Atlanta, Georgia 30309-44528
`7 404.815.6537 404.541.3484 (Fax)
` E-mail: Cholloway@ktslaw.com
`
`89
`
`10
`
`Appearing on Behalf of the Patent Owner:
`
`11
`12 STEVEN RITCHESON, ESQUIRE
` Insight, PLC
`13 98000 Topanga Canyon Boulevard
` #347
`14 Chatsworth, California 91311
` 818.882.1030
`15 E-mail: swritcheson@insightplc.com
`16
`17
`18 ALSO PRESENT:
`19 Raymond Joao
`20
`21
`22
`23
`24
`25 INDEX OF EXAMINATIONS
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`Page 3
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`Page 5
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`1 he submitted a declaration, yes.
`2 MR. RITCHESON: I believe this is 1762.
`3 MR. HOLLOWAY: That works. '363 1762.
`4 MR. RITCHESON: Thank you.
`5 MR. HOLLOWAY: Thank you.
`6 BY MR. RITCHESON:
`7 Q Mr. Bennett, this is the '363 declaration
`8 that you submitted. It's in support of petition for
`9 inter partes review, correct?
`10 A Correct.
`11 MR. RITCHESON: Let me see if we have a
`12 copy of the institutional decision, 1762.
`13 MR. RITCHESON: Can we mark this.
`14 (WHEREUPON, Exhibit 9 was marked for
`15 identification.)
`16 BY MR. RITCHESON:
`17 Q I'm handing you a document marked Exhibit
`18 9. Do you understand this is the institution
`19 decision that relates to the declaration that you
`20 have identified for us as Exhibit 8?
`21 Feel free to look at it.
`22 A Yes, I do.
`23 Q You'll note in the middle of the page
`24 there's a case IPR No. 2015-01762.
`25 Do you see that?
`
`1 By Mr. Ritcheson Page 4, 71
`2 By Mr. Holloway Page 41, 76
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` INDEX OF EXAMINATIONS
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`3456
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`78
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`NO. DESCRIPTION PAGE
`9 9 Institution Review IPR2015-01762 5
` Coxcom vs. Joao Control & Monitoring
`
`10
`11 10 US Patent No. 7,397,363 16
`12 11 Declaration of Richard Bennett In Support of 42
` No. 6,549,130
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`13
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`12 Declaration of Richard Bennett In Support of 43
`14 No. 7,397,363
`15 13 Declaration of Richard Bennett In Support of 44
` No. 7,397,364
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`16
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`14 Petition For Inter Partes Review of U.S. 54
`17 Patent No. 6,549,130
`18
`19
`20
`21
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`Petitioner CoxCom, LLC - Exhibit 1013 Page 2
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`1 A I see it.
`2 Q For convenience, is it all right with you
`3 if we refer to this institution proceeding as a
`4 1762?
`5 A That's fine.
`6 Q With respect to the declaration that you
`7 submitted, which is Exhibit 8, my understanding is
`8 that there were two bases for your belief that the
`9 claims at issue in 1762 were valid: One is in view
`10 of Koether, and the other is Koether in view of
`11 Crater.
`12 Is that generally correct?
`13 MR. HOLLOWAY: Object to form.
`14 A I wouldn't put it that way. I believe
`15 that the contested claims in this patent are invalid
`16 because they're anticipated by an enormous body of
`17 prior art. In fact, the body of prior art that
`18 anticipates these claims is so vast that it's almost
`19 incalculable.
`20 Koether and Crater patents are simply
`21 examples of that prior art that are particularly
`22 pertinent to the claims in this patent.
`23 Q You used the word "anticipate." What does
`24 the word "anticipate" mean?
`25 MR. HOLLOWAY: Objection; form.
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`Page 8
`1 comments that you've made in your declaration with
`2 respect to the 1762 proceeding are based on what's
`3 called obviousness; is that correct?
`4 A Yes.
`5 Q If we turn to Page 3 of Exhibit 9, for
`6 example, just so that there is greater clarity with
`7 respect to this line of questioning, there's a chart
`8 there. This is from the institution decision that
`9 was issued by the Patent Trial and Appeal Board,
`10 correct?
`11 A Uh-huh. (Affirmative.)
`12 Q Yes?
`13 A Yes.
`14 Q That chart there indicates Koether as a
`15 challenge alone, combined with information that
`16 would have been known to a person of ordinary skill
`17 in the art, and then it lists a series of claims,
`18 correct?
`19 A Correct.
`20 Q Then there's Koether and Crater, and
`21 there's a series of additional claims?
`22 A Correct.
`23 Q To the best of your knowledge, is this
`24 chart accurate?
`25 A I believe it is.
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`Page 7
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`Page 9
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`1 Q As you've used it.
`2 MR. HOLLOWAY: Same thing.
`3 A It means that work that was done prior to
`4 the filing, filing date of this patent.
`5 Q How does anticipation, as you've described
`6 it, compare to obviousness?
`7 A Well, anticipation is simply a location in
`8 time, and the cumulative effect of multiple
`9 instances of anticipation is obviousness.
`10 Q So is it your understanding a combination
`11 of references is anticipation?
`12 A I don't believe I would define
`13 anticipation that way, no.
`14 Q Do you understand what the meaning of
`15 anticipation is within the federal patent laws?
`16 A No, I don't, and I'm not trying to be --
`17 I'm not a lawyer and I'm not trying to legalize the
`18 term. I'm just using the ordinary English meaning
`19 of the word "anticipate."
`20 Q So when you said there was an enormous
`21 body of work, I think that anticipated --
`22 A Precedes. I'll say that.
`23 Q You mean it precedes it?
`24 A Uh-huh. Yes.
`25 Q Just to be clear, though, the specific
`
`1 Q In your declaration, which is again
`2 Exhibit 8, you describe what you believe would
`3 qualify one as a person of ordinary skill in the art
`4 at the time. Do you recall that?
`5 A I do recall that.
`6 Q I think it's Paragraph 17?
`7 A Seventeen and 18.
`8 Q Seventeen and 18. And in 17, for
`9 example -- and you've abbreviated a person of
`10 ordinary skill in the art as POSITA, correct?
`11 A Yes, I have.
`12 Q That's the conventional abbreviation for
`13 that phrase used?
`14 A I've seen that used several times.
`15 Q So if I use the term "POSITA," you'll know
`16 what I'm talking about?
`17 A I'll understand you're not talking about
`18 Los Pasitos in California.
`19 Q Exactly right. If there's ever any
`20 confusion about a restaurant, you'll let me know.
`21 With respect to the POSITA, the
`22 identification of POSITA in 17, you offer that you
`23 believe that a POSITA would have had a bachelor's
`24 degree in engineering or equivalent course work and
`25 at least two years of experience in network systems.
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`Petitioner CoxCom, LLC - Exhibit 1013 Page 3
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`1 Do you see that?
`2 A Yes, I do.
`3 Q Who created this definition of POSITA?
`4 A I did, but it's -- it probably deserves
`5 some explanation, because at the time of this
`6 patent -- I'm putting myself back in 1996 -- by that
`7 time I had already be a manager in an engineering
`8 role in hiring people for, say, ten years, and this
`9 is pretty much the basic job description, and I
`10 would put in an ad when I was looking to add an
`11 engineer to my staff.
`12 Now, the interesting thing about this
`13 definition is that it says a Bachelor's degree in
`14 engineering or equivalent course work and I don't
`15 have a Bachelor's degree in engineering. I have a
`16 bachelor's degree in philosophy.
`17 So it doesn't describe me, it describes
`18 the people that I was hiring at that time. And so
`19 to understand why I think I'm a POSITA, we have to
`20 read Paragraph 18, because by 1996 I already had 19
`21 years of professional engineering work experience,
`22 and I think strictly on that basis alone I would be
`23 considered a POSITA, if I had never cracked a single
`24 book on computer science.
`25 MR. RITCHESON: I would like to request
`
`1 MR. HOLLOWAY: Objection; form.
`2 A I developed that -- yes, I did. I mean I
`3 signed the declaration.
`4 Q But, for example, did you draft this
`5 language?
`6 A I can't recall whether I drafted that or
`7 it was suggested to me by the attorneys. But in
`8 either case, this is what the declaration says and I
`9 signed it.
`10 Q Well, I understand that. My question is,
`11 why is this right?
`12 A I think it's actually not right. I think
`13 it's a bit too terse, and I think what is missing is
`14 where it says "Bachelor's degree in engineering," it
`15 should say "Bachelor's degree in engineering or
`16 computer science." And where it says "or equivalent
`17 course work," it should say "or equivalent course
`18 work or experience."
`19 Q So you think this should be changed?
`20 A Yes, I do.
`21 MR. HOLLOWAY: Objection; form.
`22 A It could be improved.
`23 Q With respect to the development of the
`24 POSITA that's identified in Paragraph 17, can you
`25 tell me what factors were considered in coming to
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`Page 11
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`1 that entire line of response be stricken as
`2 nonresponsive.
`3 BY MR. RITCHESON:
`4 Q I didn't ask you about you. I know that
`5 you've had some dialogue about whether you're
`6 POSITA. I'm not interested in 18. I'm interested
`7 in 17. And my question was who developed the
`8 definition of POSITA. That was my only question.
`9 MR. HOLLOWAY: Objection; form.
`10 Q Okay.
`11 MR. HOLLOWAY: Are you asking another
`12 question?
`13 Q Do you understand that that was my
`14 question?
`15 MR. HOLLOWAY: Objection; form.
`16 A When you say who developed it --
`17 Q The definition in 17. I believe you
`18 testified that you did, correct?
`19 MR. HOLLOWAY: Objection to form.
`20 A Well, I said that I think in remarks that
`21 you've asked to be stricken from the record.
`22 Q That's what I'm asking you to verify that.
`23 A So we don't want to refer to remarks that
`24 have been stricken, do we?
`25 Q That's why I'm asking you to repeat it.
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`Page 13
`1 the conclusion this was the appropriate definition?
`2 A Paragraph 17 is representative to the kind
`3 of ads I was placing in newspapers and job search
`4 sites when I was hiring engineers.
`5 Q Did you consider, for example or was it
`6 considered, to your knowledge, the educational
`7 experience and training of Mr. Joao?
`8 A No, I didn't consider that. I wasn't
`9 hiring him.
`10 Q Now, I just want to verify that my
`11 understanding is correct and we can move on, is that
`12 with respect to, and looking back at the institution
`13 decision, and that was at the chart at Page 3, my
`14 understanding is that the challenged claims based on
`15 Koether alone, which is the first row, substantive
`16 row of that table, that all of those claims the PTAB
`17 determined not to institute on. Is that your
`18 understanding?
`19 A That's my understanding.
`20 Q So for the purposes of today, I'm going to
`21 focus on the remaining claims, which are Koether and
`22 Crater, which is in the second substantive row.
`23 Okay?
`24 A Okay. It's a peculiar decision on the
`25 PTAB's part, by the way.
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`Petitioner CoxCom, LLC - Exhibit 1013 Page 4
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`1 Q With respect to your declaration -- and
`2 I'm going to move back and forth a little bit
`3 between these two documents and the '363 patent,
`4 just so you know.
`5 With respect to your declaration, I'd just
`6 like to get an understanding a little bit, because
`7 it is confusing, of the flow diagrams that appear on
`8 -- I have it listed as Paragraph 56, or after
`9 Paragraph 56.
`10 I believe that's page -- it's actually on
`11 Pages 26 and 27 of your declaration.
`12 A Okay.
`13 Q I just want to make sure that I am fully
`14 comprehending what these diagrams are intended to
`15 communicate.
`16 Could you walk us through them, please?
`17 A Okay. The first diagram --
`18 Q At the top of 27?
`19 A A the top of Page 27 there's a diagram,
`20 the title of which is on the previous page. So if
`21 we turn back to Page 26.
`22 Q Got it.
`23 A At the bottom of the page it says Claim 42
`24 dash -- I mean slash 84. And that's meant to --
`25 that title is meant to go with the diagram at the
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`1 Whereas in Claim 1, Claim 1 is not
`2 actually what we would call -- well, it's, it's a
`3 system in which there is no feedback loop. And I
`4 think some people would say that therefore it's not
`5 really a control system. It's not a process control
`6 system certainly.
`7 Claim 1 refers to a vehicle theft oriented
`8 apparatus. So a car can be disabled if it's stolen
`9 from the cell phone, which is the second processing
`10 device.
`11 Q This is for which one, I'm sorry?
`12 A That's for Claim 1.
`13 Q Are you done with your answer?
`14 A Yes.
`15 Q Let's turn to Claim 1, because I'm having
`16 a challenge with a couple of things.
`17 I think you said, and I think you just
`18 misspoke but I think you said Claim 1 was directed
`19 to vehicles. Maybe I'm just reading that wrong, so
`20 why don't we have a look at '363.
`21 A Is the patent in the record?
`22 (Whereupon Exhibit 10 was marked for
`23 identification.)
`24 BY MR. RITCHESON:
`25 Q I think it's Column 104.
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`Page 15
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`Page 17
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`1 top. So you have that. That's the pagination
`2 error.
`3 And so what we have here is the three
`4 devices that are called out in both the Claim 42 and
`5 Claim 84, which are virtually identical, by the way.
`6 The three devices, we have a first processing
`7 device, a second processing device, and a
`8 communication device. Wherein -- when we compare
`9 these two diagrams, first is used in a different way
`10 between the two diagrams. So in one instance first
`11 is at the premise, and third is at the control
`12 center, and in the other case they're inverted.
`13 So the text following that in Paragraph 57
`14 explains the names and the designations between
`15 these devices. So that's one difference, is the
`16 different nomenclature, different use of the same
`17 nomenclature in the Claim 1 versus Claims 42 and 84.
`18 And the other difference is that the
`19 apparatus described in Claims 42 and 84 is a closed
`20 loop classical control system, in which there's
`21 feedback between the control device and the
`22 controller, such that the controller can make
`23 changes to the control device and the control device
`24 advises the controller of how its state is changing
`25 over time.
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`1 A Okay.
`2 Q This is a premises claim?
`3 A Yes.
`4 Q So with respect to your declaration, and
`5 I'm putting this up alongside the Claim 1 next to
`6 your flow diagram.
`7 The first processing device is, as it's
`8 listed here, is an intermediary device, correct?
`9 That is intermediate between the second and third
`10 processing devices?
`11 MR. HOLLOWAY: Objection; form.
`12 A Well, they're all intermediary to each
`13 other. On Claim 1?
`14 Q Claim 1.
`15 A Yes. The first processing device is an
`16 intermediary because the actions in this apparatus
`17 are all initiated by the second processing device.
`18 Q So the first processing device is, the
`19 intermediate device is that the first -- Claim 1
`20 describes as being associated with a website. Do
`21 you see that?
`22 A Yes.
`23 Q What is the phrase "associated with a
`24 website" mean?
`25 What did you understand it to mean when
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`1 you signed your declaration?
`2 A I found that expression rather vague. I'm
`3 not really sure what associated with a website
`4 means.
`5 Q What did you understand it to mean when
`6 you signed your declaration?
`7 A Well, it means there's some sort of
`8 logical or physical connection between the device
`9 and the website, but the nature of that connection
`10 is unclear.
`11 Q We have the second processing device
`12 responding to a signal -- I'm sorry. The first
`13 processing device responding to a signal from a
`14 second processing device; is that accurate?
`15 A Yes.
`16 Q Is it true then that the terms "first
`17 signal" and "second signal" don't refer to an order
`18 of signals?
`19 A That's correct.
`20 Q It would appear, would it not, that that
`21 language merely refers to a signal sent by a first
`22 processing device and a second processing device,
`23 respectively?
`24 A Yeah. The only consistency in the
`25 terminology is that if the number of the -- the
`
`1 accurately describes the function.
`2 Q My question was whether it appeared
`3 anywhere in Claim 1. Are you aware of any instance?
`4 A I'm not aware of any instance in which the
`5 term "relay" is used.
`6 Q Would you agree that phrase, as is used in
`7 Claim 1, determines whether an action is authorized
`8 or allowed, is not the same as determining whether a
`9 person is authorized or allowed to perform an
`10 action?
`11 A There's an enormous difference.
`12 Q When a system determines whether a person
`13 is authorized or allowed, is that frequently what's
`14 referred to as a password?
`15 MR. HOLLOWAY: Objection.
`16 Q Or password protection?
`17 MR. HOLLOWAY: Objection; form.
`18 A In order to determine that a person is
`19 authorized to perform a particular action on a
`20 system, the terminology that engineers commonly use
`21 is authentication and authorization. Well,
`22 authentication and identification, and that can be
`23 done through a combination of a user ID and a
`24 password.
`25 Q You've heard of the concept of signal
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`Page 19
`1 number that's applied to the signal and the number
`2 that's applied to the device are consistent. So if
`3 it's the second signal, we know it comes from the
`4 second processing device. If it's the first signal,
`5 it comes from the first processing device.
`6 Q In looking at the first processing device,
`7 which is the intermediate device, there is included
`8 a requirement that that intermediate device
`9 determine -- I'm truncating here -- but determine
`10 whether an act or an option is authorized or
`11 allowed; is that correct?
`12 MR. HOLLOWAY: Objection; form.
`13 A Yes. The sole function that's attributed
`14 to the first processing device, apart from relaying
`15 the signal that comes from the second processing
`16 device on to the third processing device, is
`17 validating that the action that the signal carries
`18 is one of the legitimate actions associated with the
`19 system.
`20 Q You use the term "relay," but you'll agree
`21 that the term "relay" doesn't appear anywhere in
`22 Claim 1, correct?
`23 MR. HOLLOWAY: Objection; form.
`24 A Relay is -- I don't recall whether that
`25 word is used in the patent or not, but I think it
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`Page 21
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`1 factor authentication?
`2 A Yes, I have.
`3 Q What is that?
`4 A It's where a password is a single --
`5 simply entering the correct password gives you
`6 access to the system. That's signal factor
`7 authentication. And the contrast of that would be
`8 two factor, a multifactor authentication.
`9 Q In your declaration, Paragraph 65, you
`10 address Claim 1. You also -- did I say 65. I meant
`11 63.
`12 I recognize you also include some language
`13 in 64 as well, but I'm focused on 63.
`14 A Okay.
`15 Q Are you there?
`16 A Yes.
`17 Q Now, how do you get the element of
`18 determining whether an action is authorized or
`19 allowed from the combination of Koether and Crater?
`20 MR. HOLLOWAY: Objection; form.
`21 A They both, Koether and Crater, talk about
`22 authenticating the user --
`23 Q Yes.
`24 A -- to determine that the user is
`25 authorized to perform the action that the user
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`1 wishes to perform.
`2 Claim 1 uses the term "authorization" in
`3 the sense that it determines whether the command,
`4 the action, that a user is seeking to perform
`5 through the system is one of the actions that the
`6 system knows how to perform. But it uses the term
`7 "authorization." Authorized or allowed.
`8 And in my thinking, going through this,
`9 I'm reminded of the structure of elements of
`10 computer systems, such as device drivers. I have a
`11 lot of professional experience developing device
`12 drivers. And device drivers are pieces of software
`13 in a computer system that control some hardware.
`14 They control like a terminal or an interface or a
`15 printer or a network access.
`16 And the way device drivers are typically
`17 accessed by applications is the application issues a
`18 command to the device driver for an action that it
`19 wants to perform. It could be making the device
`20 available, it could be transmitting information, it
`21 could be receiving information, it could be altering
`22 a parameter. And these actions are signaled to the
`23 device driver by numeric codes.
`24 So typically the very first stage in a
`25 device driver is a validation that the code that the
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`Page 23
`1 application issued to the device driver corresponds
`2 to one of the actions it knows how to perform. So,
`3 say, it has to be a number in the range of zero
`4 through eight. So it's a fairly trivial operation
`5 that the device driver will do to validate that the
`6 code falls within that range.
`7 And this is what I took from Claim 1, was
`8 that sort of an action was taking place in the first
`9 processing unit.
`10 Q Isn't that the sort of standard operation
`11 of any computer?
`12 MR. HOLLOWAY: Objection; form.
`13 A Isn't what?
`14 Q That is, that all computers will only
`15 respond to commands that it recognizes?
`16 A Well, computer is an awfully broad term.
`17 It's a common feature of elements of operating
`18 systems, and I think it's a common feature in the
`19 design of network protocols. It's fairly typical in
`20 those elements of a computer that involve a client
`21 server relationship. That's a typical way in which
`22 that relationship comes about.
`23 Q But you seem to be limiting it for some
`24 reason, but isn't it true that any computer -- I
`25 mean that in the broadest possible sense -- will
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`1 only respond to commands that it recognizes?
`2 A I can't disagree with that.
`3 Q So if your understanding is correct, then
`4 the terms "authorization" and "allowed," as it's
`5 used in Claim 1 is meaningless, correct, because
`6 it's part of any computer system?
`7 A It's a very -- yes, it's a very -- I mean
`8 it's a simple -- it is also what goes on inside the
`9 computer, in the elements of the computer that are
`10 looking at commands that have been issued to them by
`11 users or other programs, is to identify whether it
`12 knows what that command means, is that one of the
`13 commands that I've been programmed to carry out.
`14 So I think that's actually what's being
`15 described in Claim 1 in terms of authorization, and
`16 therefore you don't even need to go to Koether and
`17 Crater to understand that there is no novelty in
`18 that description. This is a very generic operation
`19 that is, as you say, carried out by all computers in
`20 response to all commands.
`21 Q Thank you.
`22 With respect to your declaration,
`23 Paragraph 63, isn't it true in 63 you reference
`24 password protection --
`25 A Yes.
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`1 Q -- with respect to this section?
`2 Did you mean to imply that a password,
`3 which you described previously as being an
`4 authentication, is the same as determining whether
`5 an action is authorized or allowed?
`6 MR. HOLLOWAY: Objection; form.
`7 A It's a form of authorization.
`8 So when you're authorizing an actor,
`9 you're not doing something that's -- except in terms
`10 of the degree of complexity, and there is a
`11 commonality between authorizing a user and
`12 authorizing. They're both an action. They're both
`13 acts of authorization.
`14 Q Is it not true that a password
`15 authenticates a person?
`16 MR. HOLLOWAY: Objection; form.
`17 A It need not identify a person. Passwords
`18 can also be used to authenticate a process or a
`19 program.
`20 Q Are you aware that the attorneys at
`21 Venable argued as recently as two weeks ago that a
`22 password does not satisfy this very same claim
`23 limitation in this very same patent?
`24 MR. HOLLOWAY: Objection; form.
`25 A No, I'm not. I haven't been in any
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`1 communication with Venable ever about this patent.
`2 Q '363, Claims 3 and -- let's turn to 3 for
`3 now. This is a dependent claim, correct, that
`4 depends from Claim 1?
`5 A Yes.
`6 Q That the second processing device is a
`7 wireless device, correct?
`8 A Correct.
`9 Q Looking at your chart in your declaration,
`10 that would be effectively the initiating device,
`11 correct?
`12 A Yes. So it could be something like a cell
`13 phone or a PDA.
`14 Q What is the wireless device that you rely
`15 on as the initiating device with respect to Claim 3?
`16 A In the Koether patent there is a -- all
`17 the kitchen devices, kitchen level devices, which
`18 are the premises devices, are wireless devices.
`19 There's a base station and it connects to the
`20 various devices wirelessly.
`21 Koether also describes portable devices
`22 that can be used within the kitchen base station
`23 region of coverage, such as a laptop and a palm
`24 device, expressly identifies a palm, a personal
`25 digital assistant, as one of the devices that can be
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`Page 28
`1 station as wireless computing devices such as the
`2 laptop and the palm. I mention the fact the palm
`3 device is expressly described in Koether were known,
`4 and they are the palm device is expressly -- the
`5 portion I've just quoted doesn't use the word "palm"
`6 but it uses handheld computers.
`7 It says that such handheld pocket
`8 computers are readily available from Texas
`9 Instruments, Hewlett Packard, Casio, among others.
`10 The handheld terminal 810 interrogates the
`11 controller so as to ascertain the model and serial
`12 number of the appliance under service, and then
`13 diagnoses abnormal operating conditions. Of course
`14 should infrared communicating be used, then
`15 controller 140 is equipped with an infrared
`16 transmitted/receiver.
`17 Q Where are you reading from? I'm sorry.
`18 A I'm reading from Column 10.
`19 Q This is the portion that you didn't
`20 include in your declaration?
`21 A That I didn't reference. I didn't
`22 explicitly reference this portion.
`23 Q Let's look at the portions that you did
`24 rely on, so I have a better understanding.
`25 So 7, Line 16 through 49, what information
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`1 used on this network.
`2 So the PDA would be used by repair
`3 personnel in the kitchen repairing equipment,
`4 checking on the repair work.
`5 Q Let's have a quick look at Koether so I'm
`6 remembering what you're talking about.
`7 What is the reference you have to Koether
`8 there for the handheld device?
`9 A So there are two explicit -- three
`10 explicit references. Column 7, Lines 16 through 49,
`11 Column 14, Lines 27 through 39, and then Column 7,
`12 Lines 54 through 62.
`13 Q Let's have a peak at those.
`14 I'm sorry. This is Koether. Do you have
`15 Koether?
`16 A Exhibit 6.
`17 There's also a discussion of that on
`18 Column 10, Lines 1 through roughly 15.
`19 Q Is that identified in your declaration?
`20 A There's not a specific reference to that,
`21 but there is a discussion of it in the declaration.
`22 Towards the end of the second half of Paragraph 65,
`23 I discuss the fact that it would have been obvious
`24 to a person of ordinary skill prior to July 1996 to
`25 incorporate a wireless device in the kitchen base
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`1 is disclosed here?
`2 A This is some information about the
`3 specifics of how one of the wireless devices
`4 operates. It talks about the modulation of carriers
`5 to implement a wireless communication.
`6 Q Then if you look at 14, 27 through 39, we
`7 seem to be looking at Claim 1, correct?
`8 A Yes. So we have a plurality of base
`9 stations through wireless communication transmitting
`10 and receiving messages to and from the associated
`11 restaurant appliances. So we have wireless
`12 communication going on.
`13 Q Right, and that is communication, wireless
`14 communication, if we look at your declaration, that
`15 is wireless communication from between the first
`16 processing device and the third processing device,
`17 correct?
`18 A First processing device and third
`19 processing device according to which?
`20 Q To your flow diagram.
`21 A The use of --
`22 Q Your flow diagram on Page 27.
`23 A It wouldn't matter because it's
`24 bi-directional communication between --
`25 Q The first processing device and the third
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`1 processing device, correct?
`2 MR. HOLLOWAY: Objection; form.
`3