Kevin J. Negus
`
`Missoula, MT
`
`May 17, 2016
`
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SIERRA WIRELESS AMERICA, )
`
`INC., SIERRA WIRELESS, INC, )
`
`and RPX CORP., )
`
` Petitioner, ) Case IPR2015-01823
`
` vs. )
`
`M2M SOLUTIONS LCC, )
`
` Patent Owner. )
`
`_____________________________ )
`
` Taken at 5280 Grant Creek Road
`
` Missoula, Montana
`
` Tuesday, May 17, 2016 - 9:00 a.m.
`
` D E P O S I T I O N
`
` OF
`
` KEVIN J. NEGUS
`
` Reported by Mary R. Sullivan, RPR, RMR, CRR
`
` Missoula, Montana
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`1
`
`M2M
`Ex. 2017
`
`
`
`Missoula, MT
`
`May 17, 2016
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SIERRA WIRELESS AMERICA, )
`
`INC., SIERRA WIRELESS, INC, )
`
`and RPX CORP., )
`
` Petitioner, ) Case IPR2015-01823
`
` vs. )
`
`M2M SOLUTIONS LCC, )
`
` Patent Owner. )
`
`_____________________________ )
`
` Taken at 5280 Grant Creek Road
`
` Missoula, Montana
`
` Tuesday, May 17, 2016 - 9:00 a.m.
`
` D E P O S I T I O N
`
` OF
`
` KEVIN J. NEGUS
`
` Reported by Mary R. Sullivan, RPR, RMR, CRR
`
` Missoula, Montana
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`1
`
`M2M
`Ex. 2017
`
`
`
`Kevin J. Negus
`
`Missoula, MT
`
`May 17, 2016
`
`Page 2
`
` A P P E A R A N C E S
`
`FOR THE PETITIONER:
`
` JENNIFER HAYES, Esq.
`
` Nixon Peabody
`
` P.O. Box 2106
`
` 2 Palo Alto Square, Suite 500, 3000 El Camino Real
`
` Palo Alto, California 94306-2106
`
` jenhayes@nixonpeabody.com
`
`FOR THE PATENT OWNER:
`
` MARC N. HENSCHKE, Esq.
`
` Foley & Lardner
`
` P.O. Box 7610
`
` 111 Huntington Avenue, Suite 2600
`
` Boston, Massachusetts 02199-7610
`
` mhenschke@foley.com
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`Alderson Court Reporting
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`M2M
`Ex. 2017
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`
`
`Kevin J. Negus
`
`Missoula, MT
`
`May 17, 2016
`
`Page 3
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` I N D E X
`
`WITNESS: PAGE
`
`KEVIN J. NEGUS
`
` Examination by Mr. Henschke 5
`
`EXHIBITS:
`
`NO: DESCRIPTION: PAGE
`
` 1: Notice of Deposition of Kevin J. Negus 5
`
`Certificate of Court Reporter 202
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`Alderson Court Reporting
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`M2M
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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` TUESDAY, MAY 17, 2016
`Thereupon,
`
` KEVIN J. NEGUS,
`
`a witness of lawful age, having been previously
`
`sworn to tell the truth, the whole truth, and
`
`nothing but the truth, testified as follows:
`
` MS. HAYES: And, Counsel, I'm going to
`
`state for the record that I know that you've
`
`applied for pro hac vice admission, but that motion
`
`hasn't been granted yet, so Sierra Wireless and RPX
`
`object to your appearance at the deposition to take
`
`questions.
`
` MR. HENSCHKE: Is that right? On what --
`
`On what basis?
`
` MS. HAYES: On the basis that you haven't
`
`actually been admitted pro hac vice in the case.
`
` MR. HENSCHKE: Do you have some reason to
`
`believe that that pro hac vice admission will be
`
`denied or that I'm not qualified to take the
`
`deposition today?
`
` MS. HAYES: I have no reason to believe
`
`it will not be granted or that it will be granted.
`
`I'm just objecting to your appearance because you
`
`haven't actually been admitted in the case.
`
` MR. HENSCHKE: I see.
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
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`M2M
`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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` EXAMINATION
`
`BY MR. HENSCHKE:
`
` Q. Dr. Negus, could you please state your
`
`full name and residential address for the record?
`
` A. My -- Excuse me. My name is Kevin Negus,
`
`and I live at 522 Moose Lake Road in Philipsburg,
`
`Montana.
`
` MR. HENSCHKE: So as an initial
`
`housekeeping matter, I'd like to introduce and mark
`
`as Negus Exhibit 1 the patent owner's notice of
`
`deposition of Kevin J. Negus.
`
`EXHIBIT:
`
` (Deposition Exhibit 1 marked for
`
`identification.)
`
` MR. HENSCHKE: And this may be the only
`
`exhibit that we identify specifically for purposes
`
`of this deposition today.
`
` MS. HAYES: Shall we give the witness the
`
`marked version of the exhibit?
`
` MR. HENSCHKE: If you want to.
`
`BY MR. HENSCHKE:
`
` Q. Dr. Negus, prior to today, have you ever
`
`given deposition testimony in any other IPR
`
`proceedings besides these?
`
` A. Not that I recall.
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 6
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` Q. Have you given deposition testimony in
`
`any federal court litigations?
`
` A. Yes.
`
` Q. Approximately how many different times
`
`would you estimate that you've given depositions
`
`in -- in federal court litigations?
`
` MS. HAYES: Objection: Relevance.
`
` A. I'm not sure on the -- Just a rough
`
`estimate, say at least 25 times.
`
`BY MR. HENSCHKE:
`
` Q. Okay. So let me show you a document that
`
`has been submitted as Exhibit 1013 in these IPR
`
`proceedings that bears the title Expert Declaration
`
`of Dr. Kevin Negus for Inter Partes Review of U.S.
`
`Patent No. 8,648,717.
`
` Do you recognize this document as the
`
`expert declaration that you've prepared on behalf
`
`of the petitioners in these IPR proceedings?
`
` A. Well, let me take a look.
`
` MS. HAYES: Counsel, do you have a copy
`
`of the declaration for me?
`
` MR. HENSCHKE: We can have one that's
`
`marked with the official stamp and we can have one
`
`for you and the witness to look at, or you can look
`
`at the two of those. We'll just need to give that
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
`
`May 17, 2016
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`Page 7
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`back to the court reporter so that she has --
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` MS. HAYES: Understood.
`
` MR. HENSCHKE: -- a set at the end.
`
` A. Yes.
`
`BY MR. HENSCHKE:
`
` Q. So for purposes of our deposition here
`
`today, I'm going to be referring to this as either
`
`Exhibit 1013 or as the Negus declaration.
`
` I would ask, Dr. Negus, that you please
`
`take a look at Page 39 of Exhibit 1013.
`
` So I'd like to discuss your opinion about
`
`how claim element 1(b) directed to the programmable
`
`interface is allegedly met by the prior art.
`
` Is it your opinion that the interface
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`recited in Whitley that gateway 20 uses for
`
`connecting to technical devices in facility 12
`
`satisfies the Whitley claim element 1(b)
`
`programmable interface?
`
` A. Well, my opinion is given here in the
`
`declaration, so that's not specifically the way
`
`it's worded in the declaration.
`
` Q. Is it your opinion that the gateway 20
`
`interface qualifies as the programmable interface
`
`of claim element 1(b)?
`
` A. It's my opinion that the Whitley
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 8
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`reference discloses to a person of ordinary skill
`
`in the art the limitation of 1(b) by the four
`
`corners of what's in the Whitley patent
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`application.
`
` Q. Are you saying that the gateway 20
`
`interface, in particular, is the programmable
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`interface of claim element 1(b)?
`
` A. What I'm saying is in my declaration. So
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`if you want to know what I'm saying, it's right
`
`here in my declaration.
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` Q. So whatever I see here in the right-hand
`
`column on Pages 39 to 41 of your declaration, I can
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`assume is your analysis of claim element 1(b)
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`vis-a-vis Whitley?
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` MS. HAYES: Objection: Misleading.
`
` A. No, that's not what I said. I said
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`what's in my declaration you can consider as being
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`my analysis and opinion with respect to what
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`Whitley discloses to a person of ordinary skill in
`
`the art with respect to claim element 1(b).
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`BY MR. HENSCHKE:
`
` Q. And I take it part of your opinion in
`
`your expert report is at Pages 39 to 41 of
`
`Exhibit 1013; is that correct?
`
` A. I'm sorry, could you repeat that?
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 9
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` Q. Yes. Part of your opinion in that regard
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`is set forth at Pages 39 to 41 of Exhibit 1013,
`
`correct?
`
` MS. HAYES: Objection: Form.
`
` A. I'm not sure what you mean by part of my
`
`opinion. Like I -- My opinion is -- with respect
`
`to element 1(b) is expressed in my declaration.
`
`BY MR. HENSCHKE:
`
` Q. Now, in your -- in your claim chart here
`
`at Pages 39 to 41, you've cited two passages from
`
`Whitley that you think best describe the gateway 20
`
`interface; is that right?
`
` A. I'd say exemplary. I don't know about
`
`the word best describe, but I think it's -- it's
`
`well described in the declaration. I certainly
`
`didn't mean to limit it only to what's here from 39
`
`to 41.
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` Q. Would you -- Would you say that you
`
`believe the passages at 39 to 41 are among the best
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`passages in terms of disclosing a programmable
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`interface from Whitley?
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` MS. HAYES: Objection: Form.
`
` A. I don't really rank them as best. It's
`
`not the way -- way I thought of it. I think that
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`these clearly show that Whitley discloses the
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 10
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`limitation of a programmable interface for
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`establishing a communication link with at least one
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`monitored technical device, wherein the
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`programmable interface is programmable by wireless
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`packets which data messages in view of the
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`infringement contentions that M2M has provided to
`
`my client Sierra Wireless.
`
`BY MR. HENSCHKE:
`
` Q. What criteria did you use in choosing
`
`what passages to include at Pages 39 to 41 of your
`
`claim chart in Exhibit 1013?
`
` MS. HAYES: Objection: Form.
`
` A. I -- I -- I didn't think of it that way.
`
`BY MR. HENSCHKE:
`
` Q. You had no criteria that you used in
`
`making your choices?
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` MS. HAYES: Objection: Form.
`
` A. I'm not quite sure what you mean by
`
`"criteria," Counsel.
`
`BY MR. HENSCHKE:
`
` Q. You don't understand the word "criteria?"
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` MS. HAYES: Objection: Form.
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` A. I have an understanding of the word
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`"criteria."
`
`///
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 11
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`BY MR. HENSCHKE:
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` Q. What would that be?
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` A. It would be reasons, for example.
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` Q. Um-huh. And -- And -- And what was your
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`reasoning in choosing the particular passages
`
`you've included at Pages 39 to 41 of your
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`declaration?
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` A. My reasoning would be that these at least
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`disclose -- In view of M2M's infringement
`
`contentions on Sierra that these at least disclose
`
`a programmable interface, also in terms of the
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`written description or enablement or lack thereof
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`in the 717 patent for this particular claim
`
`element.
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` Again, I felt that Whitley certainly
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`teaches to one of ordinary skill in the art at
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`least this element 1(b) in more detail than the 717
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`patent does, and in addition, shows at least as
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`much as what M2M alleges to constitute infringement
`
`of this claim element.
`
` Q. Now, in the -- the first narrative
`
`passage from Whitley that you've cited at the
`
`bottom of Page 39, the Whitley gateway 20 interface
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`is described as being a physical interface; is that
`
`right?
`
`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 12
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` A. Can you repeat the question?
`
` MR. HENSCHKE: Will you read it back,
`
`please?
`
` THE COURT REPORTER: "Question: Now, in
`
`the first narrative passage from Whitley that
`
`you've cited at the bottom of Page 39, the Whitley
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`gateway 20 interface is described as being a
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`physical interface; is that right?"
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` A. I don't get how that's the first
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`narrative passage that I've cited to Whitley. I
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`think there's -- there's more before that one.
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`BY MR. HENSCHKE:
`
` Q. Do you see the -- the paragraph at the
`
`bottom of Page 39 of your expert report, Dr. Negus?
`
` A. I do.
`
` Q. Yes. That's what my question is
`
`referring to. And my question is, does it describe
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`the gateway 20 interface as being a physical
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`interface?
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` A. You're assuming that there's only one.
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`It just says what it says. The words speak for
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`themselves. It says, "The term 'gateway' includes
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`any device that (a) provides a physical interface
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`between internal devices associated with a
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`particular facility 12 and external networks."
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`12
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 13
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` You know, I -- I won't read the whole
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`thing, but it's -- it's talking about the term
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`gateway. It's not -- It doesn't say the gateway
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`has one and only one interface and it's a physical
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`interface.
`
` Q. Do we agree that Whitley describes the
`
`one or more gateway 20 interfaces as being physical
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`interface?
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` A. It describes that one of them's a
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`physical interface between internal devices
`
`associated with a particular facility 12 and
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`external networks. It's saying that the gateway
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`can be any device, and it gives examples of
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`multiple different devices in gateway -- in --
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`excuse me, in Whitley, and it -- and it describes
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`that those different devices can provide a physical
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`interface between the -- typically sensors that
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`would be inside a home or office or building, and
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`external networks of which the primary example in
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`Whitley is a GSM network.
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` Q. Does Whitley provide any further
`
`description of what particular kind of physical
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`interface this would be?
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` A. I believe so.
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` Q. Can you point me to that somewhere in
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`M2M
`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 14
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`Whitley where a particular kind of physical
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`interface is further identified?
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` A. Sure.
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` Q. Please. Where?
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` A. Hand me a copy of Whitley --
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` Q. All right.
`
` A. -- I'll point it to you.
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` MR. HENSCHKE: I'm handing the witness a
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`copy of Exhibit 1003 from the IPR proceedings.
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`This is the prior art patent application referred
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`to in the IPR documents as Whitley.
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` A. Okay. Well, there's numerous places in
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`Whitley. I think they're all cited in my
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`declaration, but certainly Page 8 starting at the
`
`bottom. It's at Line 27 through Page 9 to Line 8,
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`at least, as well as all of the figures of Whitley.
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`BY MR. HENSCHKE:
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` Q. So, for example, if we -- if we looked at
`
`Figure 4, which in terms of the gateway 20
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`interfaces simply shows unlabeled straight lines,
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`those, in your view, are identifying a particular
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`type of physical interface?
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` A. Certainly to the extent that the 717
`
`could ever be considered. I don't think the 717
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`describes element 1(b), but I don't believe that's
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`Missoula, MT
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`May 17, 2016
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`an issue for this IPR. It's my understanding --
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`I'm not a lawyer, you guys are all the lawyers here
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`-- but if that's the standard of what -- what
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`constitutes a -- a meeting claim 1(b), Whitley more
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`than exceeds it.
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` MR. HENSCHKE: Move to strike as
`
`nonresponsive.
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`BY MR. HENSCHKE:
`
` Q. In Figure 4, do the straight lines
`
`connecting gateway 20 to facility 12, in your view,
`
`identify a particular type of physical interface?
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` MS. HAYES: Objection: Asked and
`
`answered.
`
` A. Yeah, I already answered that.
`
`BY MR. HENSCHKE:
`
` Q. So you're not able to identify any
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`particular interface beyond what you've already
`
`testified to?
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` MS. HAYES: Objection: Misleading.
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` A. I already answered the question, and I
`
`wrote a declaration which identifies the -- how
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`Whitley meets element 1(b).
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`BY MR. HENSCHKE:
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` Q. So can I assume that if Whitley, in fact,
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`identifies a particular type of -- of physical
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`interface, you would have pointed that out
`
`somewhere here in your declaration?
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` MS. HAYES: Objection.
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` A. You can assume whatever you like, I
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`guess. It's a free country, but my -- I stand by
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`what my declaration says. And Whitley meets this
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`claim limitation, in my opinion, for the reasons
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`that I've described in this declaration. And, you
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`know, I think it's clear with respect to the
`
`gateway of Whitley, the gateway can be a -- a type
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`of -- various devices.
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` It can be a type of device that, for
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`example, could be, just reading from Whitley, it
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`says could be a set-top box, a personal computer or
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`other device provided with a processor such as an
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`Intel 386 or 486 processor. And I've never -- you
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`know, this is 1999. There was never an Intel 386-
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`or 486-based personal computer set-top box. It
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`didn't have a serial port, for example. Serial
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`port is all -- though it's not mentioned in the 717
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`patent, a serial port is all that M2M points to
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`with respect to infringement contentions with -- on
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`-- on Sierra Wireless, so I see Whitley as
`
`describing at least the same thing that M2M points
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`to for its infringement contentions.
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 17
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`BY MR. HENSCHKE:
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` Q. So in the -- in the year 2000 timeframe,
`
`would a person of ordinary skill in the art have
`
`had an understanding of what particular kinds of
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`physical interfaces could be used to connect a -- a
`
`data module like a gateway 20 with technical
`
`devices like those that are in facility 12?
`
` A. Yes.
`
` Q. And what particular kinds of physical
`
`interfaces would a person of ordinary skill in the
`
`art have thought that gateway 20 could conceivably
`
`be -- be using?
`
` A. Almost certainly a -- a serial -- an
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`RS-232 or a UART or serial port. By 2000,
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`certainly USB was very common as well. There's
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`other older buses, like a parallel port, for
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`example. There would be IR communications would --
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`would certainly be possible, and I -- I don't mean
`
`to be limiting. I think there's -- there's quite a
`
`few.
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` Q. Would a person of ordinary skill have
`
`understood that the -- the gateway 20 physical
`
`interface could be a GPIO interface?
`
` A. I don't know that they would see how that
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`meets the functional limitation of establishing a
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`communications link, but -- but again, in view of
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`M2M's infringement contentions which allege that a
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`GPIO can meet this, certainly a GPI was very, very
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`common, would be a -- would not be understood to be
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`unusual in gateway 20 or -- yeah, gateway 20 in
`
`Whitley the way that Whitley describes the gateway.
`
` Q. I want to make sure you understand my
`
`question. I -- I'm not asking anything whatsoever
`
`about M2M's infringement contentions in litigations
`
`that are outside of this proceeding. What I'm
`
`asking you specifically is in -- in the year 2000
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`timeframe, would a person with ordinary skill in
`
`the art have understood that the gateway 20
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`interface could potentially be a GPIO interface?
`
` MS. HAYES: Objection: Asked and
`
`answered.
`
` A. I think I already answered it, but as I
`
`said, I don't see how it -- I don't see how the
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`GPIOs meet the functional limitation, but M2M does,
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`and there are infringement contentions against
`
`Sierra. So to that extent, then, Whitley discloses
`
`at least as much.
`
`BY MR. HENSCHKE:
`
` Q. Would a person of ordinary skill have
`
`understood that a -- that the gateway 20 interface
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`as described in Whitley could potentially be an ADC
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`interface?
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` A. That would seem unusual to me. I know
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`that, again, M2M makes that assertion in their
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`infringement contentions, but it just seems really
`
`bizarre to me how one would consider that to be
`
`establishing a communications link. I don't see
`
`how it meets the functional limitation.
`
` Q. Would a person of ordinary skill have
`
`understood that the physical interface of gateway
`
`20 could conceivably be a USB interface?
`
` A. Yeah. Well, again, in the context of
`
`Whitley, certainly Whitley describes a device
`
`that -- that a person of ordinary skill in the art
`
`would understand to include a -- a serial interface
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`or -- of which one example would be USB.
`
` Q. So aside from -- If I'm understanding you
`
`correctly, aside from serial interfaces and
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`parallel ports, are you aware of any other type of
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`physical interface that a person of ordinary skill
`
`would have understood that the gateway 20 interface
`
`could be in the 2000 timeframe?
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` MS. HAYES: Objection: Misleading.
`
` A. Yeah, I don't quite follow you. As I
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`said earlier, that -- those are just examples. I
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`Alderson Court Reporting
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`Missoula, MT
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`May 17, 2016
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`Page 20
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`mean, there would have been a wireless LAN
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`interface, an infrared interface. It's probably
`
`possible to do some kind of acoustic coupling
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`interface. There are all kinds of fiber standards
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`that were well known. You know, local ones,
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`InfiniBand. There would have been -- I mean,
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`there's just -- there was just so many interfaces,
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`I don't know how to begin to count them.
`
`BY MR. HENSCHKE:
`
` Q. Well, and I'm not asking you about all
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`interfaces that existed. I'm asking you about the
`
`category of interfaces that a person of ordinary
`
`skill would have understood could conceivably be
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`the gateway 20 physical interface and perform the
`
`functions necessary in Whitley.
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` A. The function -- What do you mean by the
`
`functions necessary in Whitley?
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` Q. Well, I believe Whitley describes the --
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`the interface of gateway 20 as having certain
`
`capabilities and functions that it performs, does
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`it not?
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` A. Okay. It -- It does. I just want to
`
`make sure you didn't mean the functions that are
`
`cited in claim 1(b). I'm trying to understand
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`the -- if you were making a distinction.
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 21
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` Q. Well, I want to make sure that the list
`
`of interfaces you've provided me are what a person
`
`of ordinary skill would have understood could
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`potentially perform the functions of the gateway 20
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`interface as described in Whitley. Is that the
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`list that you've given me?
`
` A. No. I think the -- the list is longer.
`
`I just hadn't seen that as -- of any -- of any
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`primary importance to this matter, so I -- I
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`haven't thought about the full length of the list.
`
` Q. But the list would include at least what
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`you've given me, correct?
`
` A. I'm not sure quite what you mean by what
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`I've given you, but -- but it would include at
`
`least the things that I've recited in previous
`
`answers as -- as being interfaces that could
`
`establish a communications link. Not -- Not
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`everything that you've cited to in your
`
`infringement contentions would be able to establish
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`a communications link, even though they would be
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`interfaces and they would be known to a person of
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`ordinary skill.
`
` Q. Dr. Negus, I'll say again for the
`
`record, we're not here in a district court
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`infringement litigation, and none of my questions
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`have anything whatsoever to do with infringement
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`contentions in district court litigations, and none
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`of my questions are calling upon you to talk about
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`that issue.
`
` MS. HAYES: Counsel, I object to your
`
`speaking objection. You may ask the witness
`
`questions.
`
`BY MR. HENSCHKE:
`
` Q. So Dr. Negus, is it your opinion that the
`
`claim -- the claim term "programmable interface"
`
`should be given its ordinary and customary meaning
`
`for purposes of these IPR proceedings?
`
` MS. HAYES: Objection: Relevance.
`
` A. Claim construction is a matter of law,
`
`Counsel. I'm not a lawyer.
`
`BY MR. HENSCHKE:
`
` Q. Are you saying that the term
`
`"programmable interface" should be given its plain
`
`and ordinary meaning for purposes of your
`
`invalidity analysis in these IPR proceedings?
`
` MS. HAYES: Objection: Asked and
`
`answered. Relevance.
`
` A. Claim construction is a matter of law,
`
`Counsel. I'm not a lawyer, I'm not taking a -- a
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`legal position here.
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`1-800-FOR-DEPO
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`Missoula, MT
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`May 17, 2016
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`Page 23
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`BY MR. HENSCHKE:
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` Q. Well, sir, let me, then, turn you to
`
`Paragraph 67 of your declaration, Exhibit 1013.
`
` You say in Paragraph 67 on Page 23 of
`
`your declaration that for purposes of these IPR
`
`proceedings, that claim terms are to be given their
`
`ordinary and customary meaning, correct?
`
` A. That's my understanding.
`
` Q. And if we turn to Paragraph 71 of your
`
`declaration on the next page, you suggest that the
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`remaining claim terms should be accorded their
`
`ordinary meaning, correct?
`
` A. That's my understanding.
`
` Q. And one of those remaining claim terms
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`would be the programmable interface claim term,
`
`right?
`
` A. Amongst many others, yes.
`
` Q. And, so, for purposes of your invalidity
`
`analysis here in the IPR proceedings, you have
`
`accorded the term "programmable interface" its
`
`ordinary and customary meaning, correct?
`
` A. That is what I've done, but it's not --
`
`I'm not taking the opinion that that's what should
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`be done. That is what I've done.
`
` Q. And what would a person of ordinary skill
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 24
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`have understood the ordinary and customary meaning
`
`of a programmable interface to be in the year 2000
`
`timeframe?
`
` A. I believe that they would understand it
`
`to be an interface that can be programmed, and that
`
`performs the function that's recited in claim
`
`element 1(b).
`
` Q. And what does it mean to say an interface
`
`that can be programmed?
`
` A. It means an interface that can be
`
`programmed, can be changed.
`
` Q. So what characteristics would an
`
`interface need to have in order to be considered
`
`programmable?
`
` A. Well, if -- if you're relying on what's
`
`written -- given any written description support in
`
`the 717, it would be just about nothing since
`
`there's really no description of a programmable
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`interface of any meaning in the 717. So if you're
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`going to the plain and ordinary meaning, and -- and
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`as I wrote there, consistent with the specification
`
`of the patent, I don't really see that it's much of
`
`a limitation, if anything, but there's still a
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`functional limitation beside it.
`
` Q. My question, sir, is in accordance with
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`1-800-FOR-DEPO
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`Ex. 2017
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`Kevin J. Negus
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`Missoula, MT
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`May 17, 2016
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`Page 25
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`the plain and ordinary meaning of programmable
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`interface what would a person of ordinary skill
`
`have understood an interface would need to have in
`
`terms of characteristics or attributes in order to
`
`be considered programmable?
`
` MS. HAYES: Objection: Asked and
`
`answered. Relevance.
`
` A. I think I've answered it, but, again,
`
`it's -- it's an interface that can be programmed,
`
`and that performs the recited function in claim
`
`element 1(b).
`
`BY MR. HENSCHKE:
`
` Q. What characteristics does an interface
`
`need to have in order to be considered
`
`programmable?
`
` A. Something that can be programmed.
`
` Q. And what does that mean to you? What
`
`does it mean to say that it can be programmed?
`
`What -- What -- What needs to happen in order for
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`it to be programmed?
`
` MS. HAYES: Objection: Form.
`
` A. Basically nothing according to the 717
`
`patent, but just the -- I don't see anything in the
`
`717 patent that -- that describes any particular
`
`attribute of an interface in terms of being
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`25
`
`M2M
`Ex. 2017
`
`
`
`Kevin J. Negus
`
`Missoula, MT
`
`May 17, 2016
`
`Page 26
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`1
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`programmable other than being said to be
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`programmable.
`
`BY MR. HENSCHKE:
`
` Q. When you performed your invalidity
`
`analysis, Dr. Negus, what characteristics did you
`
`understand that an interface needed to have in
`
`order to be considered programmable?
`
` A. Well, I looked at the infringement
`
`contentions, and it described, according to M2M,
`
`that this element is met if there's a serial port.
`
`And clearly gateway 20, the way the device is
`
`described, that teaches a person of ordinary skill
`
`that -- that this gateway can be built in just a
`
`standard off-the-shelf PC of that timeframe, of
`
`which there's never been one, that I can ever
`
`recall, that doesn't have a serial port.
`
` Q. So in order to -- Strike that.
`
` So you understand that the -- the correct
`
`legal and claim construction standards to use in
`
`performing your IPR analysis is to look at M2M's
`
`infringement contentions in a -- in a district
`
`court litigation?
`
` MS. HAYES: Objection: Misleading.
`
` A. I -- My understanding is given here in
`
`the declaration, so it's in Pages 23 and 24.
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`26
`
`M2M
`Ex. 2017
`
`
`
`Kevin J. Negus
`
`Missoula, MT
`
`May 17, 2016
`
`Page 27
`
`1
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`2
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`BY MR. HENSCHKE:
`
` Q. In -- In order to be considered
`
`programmable in accordance with plain and ordinary
`
`meaning, does an interface need to itself being
`
`programmable?
`
` MS. HAYES: Objection: Relevance.
`
` A. Well, there's nothing in the 717 patent
`
`to -- to really give us any guidance one way or the
`
`other.
`
`BY MR. HENSCHKE:
`
` Q. No, I'm asking, sir, within the
`
`understanding of a person of ordinary skill in the
`
`art in the year 2000, would the pl
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