UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`EMERSON ELECTRIC CO., :
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` Petitioner, :
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` v. : Case IPR2015-01973
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`SIPCO, LLC, : Patent 8,013,732
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` Patent Owner. :
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` DEPOSITION OF DR. KEVIN ALMEROTH
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` McLean, Virginia
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` Friday, July 1, 2016
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` 9:07 a.m.
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`Job No. 116000
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`Pages: 1 - 235
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`Reported by: Kimberly L. Ribaric, RPR, CCR
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`EMERSON ELECTRIC CO., :
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` Petitioner, :
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` v. : Case IPR2015-01973
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`SIPCO, LLC, : Patent 8,013,732
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` Patent Owner. :
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` DEPOSITION OF DR. KEVIN ALMEROTH
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` McLean, Virginia
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` Friday, July 1, 2016
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` 9:07 a.m.
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`Job No. 116000
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`Pages: 1 - 235
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`Reported by: Kimberly L. Ribaric, RPR, CCR
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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` Deposition of DR. KEVIN ALMEROTH, held at
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` the law office of:
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` DAVIDSON BERQUIST JACKSON + GOWDEY
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` 8300 Greensboro Drive, Suite 500
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` McLean, VA 22102
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` 571-765-7700
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` Pursuant to agreement, before KIMBERLY L.
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`RIBARIC, Registered Professional Reporter, Certified
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`Court Reporter and Notary Public in and for the
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`Commonwealth of Virginia at large.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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` A P P E A R A N C E S
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` ON BEHALF OF THE PETITIONER:
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` DON JACKSON, ESQUIRE
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` JAY BERQUIST, ESQUIRE
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` DAVIDSON BERQUIST JACKSON + GOWDEY, LLP
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` 8300 Greensboro Drive
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` Suite 500
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` McLean, VA 22102
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` 571-765-7200
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` ON BEHALF OF THE PATENT OWNER:
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` DR. GREGORY J. GONSALVES, ESQUIRE
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` GONSALVES LAW FIRM
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` 2216 Beacon Lane
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` Falls Church, VA 22043
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` 571-419-7252
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` ALSO PRESENT:
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` Luis Lopez, Videographer
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`PLANET DEPOS
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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` C O N T E N T S
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`EXAMINATION OF DR. KEVIN ALMEROTH PAGE
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` Examination By Mr. Jackson 6
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` E X H I B I T S
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` (NONE OFFERED)
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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`(July 1, 2016, 9:07 a.m.)
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` P R O C E E D I N G S
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` THE VIDEOGRAPHER: Here begins Tape
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` Number 1 in the videotaped deposition of
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` Dr. Kevin Almeroth in the matter of Emerson
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` Electric Company versus SIPCO, LLC, in the
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` United States Patent and Trademark Office, Case
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` Number IPR2015-01973.
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` Today's date is July 1st, 2016. The time
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` on the video monitor is 9:07.
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` The videographer today is Luis Lopez,
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` representing Planet Depos.
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` This video deposition is taking place at
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` 8300 Greensboro Drive, McLean, Virginia.
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` Would counsel please identify themselves
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` and state whom they represent.
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` MR. JACKSON: This is Don Jackson,
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` representing Petitioner, Emerson Electric.
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` MR. GONSALVES: Greg Gonsalves,
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` representing the Patent Owner.
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` MR. BERQUIST: And Jay Berquist, co-counsel
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`09:07:55
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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` to Don Jackson.
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`09:08:01
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` THE VIDEOGRAPHER: The court reporter is
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`09:08:01
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` Kim Ribaric, representing Planet Depos.
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` Would the reporter please swear in the
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` witness.
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` DR. KEVIN ALMEROTH,
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` WAS SWORN AND TESTIFIED AS FOLLOWS.
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` EXAMINATION
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`BY MR. JACKSON:
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` Q. Dr. Almeroth, in front of you I've given
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`you two documents, one of them is the '732 patent,
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`and the other I believe is your declaration in this
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`IPR proceeding. Is that correct?
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` A. Yes.
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` Q. Okay. Have you studied the '732 patent as
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`part of your preparation for generating your
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`declaration in this matter?
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` A. I have.
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` Q. Okay. And is this a technical field that
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`you're familiar with?
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`Videotaped Deposition of Dr. Kevin Almeroth
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` A. It is.
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` Q. Okay. Approximately how many years have
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`you worked in this technical field, if any?
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` A. I would say about 20 years, plus or minus.
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` Q. Okay. That would take us back to
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`approximately 1996 time frame?
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` A. That's correct.
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` Q. Okay. Can you give us your understanding
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`of what the invention is that's disclosed in the '732
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`patent?
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` A. Well, I think that the invention is pretty
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`much embodied in the claims. We can certainly walk
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`through any one of the claims if you'd like. Beyond
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`that, there might be additional aspects of the
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`invention that are described in the specification.
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` Q. At a more abstract level, not at the
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`detailed level of the claims, but at a more abstract
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`level is it possible for you to summarize or describe
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`what you view as being the invention that's disclosed
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`in the '732 patent?
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` A. You know, trying to come up with an
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`abstract representation of the invention I think is
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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`error prone.
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` I think that the claim set out what the
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`invention is. I think that the patent has an
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`abstract. I think that that starts to describe what
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`the invention is. And I can certainly read the
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`abstract. I think that that does a fair job of
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`describing at least some of the embodiments of the
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`invention.
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` Q. Thank you. Reading the abstract won't be
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`necessary.
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` But let me try asking a slightly different
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`question, which is: Is there a particular feature
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`that's disclosed in the '732 patent that you feel
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`adds novelty to the -- either the claims or what's
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`disclosed in the specification compared to the work
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`that was done in this field prior to the original
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`filing date of these -- of this application?
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` A. I don't know that I've tried to even answer
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`that question or given it much thought. I certainly
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`think that I would be able to do so if I sat and
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`tried to think of what the answer might be.
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` Q. But as you sit here now, you haven't put
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`Videotaped Deposition of Dr. Kevin Almeroth
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`that thought into it and haven't come up with that
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`answer?
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` A. As I sit here right now, off the top of my
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`head, no. I would want to study it and make sure
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`that I was certain of what I was saying.
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` Q. Nothing jumps out at you as being that
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`feature?
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` MR. GONSALVES: Objection.
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` THE WITNESS: Again, it really is a matter
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` of I haven't thought about it. The things that
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` jump out at me about what the invention is are
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` pretty much the claims and what they embody.
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` But to try and distill that into some succinct
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` description or particular features of the
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` invention is not something I've tried to do.
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`BY MR. JACKSON:
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` Q. Okay. Let me ask you to turn to I believe
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`it's column 1 of the '732 patent.
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` A. Okay.
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` Q. We'll really be looking at columns 1 and 2.
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` What part, if any, of these two columns
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`comprises a description of the prior art, the prior
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`Videotaped Deposition of Dr. Kevin Almeroth
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`art to this patent?
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` A. Well, that, I think I have addressed in my
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`report, and it was something that was actually
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`proposed by the petitioner, and that is what's been
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`identified as the admitted prior art. Let me find
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`that in the declaration.
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` So this is on page 40, the disclosures that
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`are related to the admitted prior art. And so, if
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`we're talking about the first and second column, at
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`least what's been proposed by the petitioner is
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`column 1, lines 54 through 65, and column 2, lines 27
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`through 29.
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` Q. Okay. But these are -- what you're
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`pointing to here in your declaration at page 40 are
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`cites to what I take it Dr. Heppe identified;
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`correct?
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` A. And the petitioner.
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` Q. And the petitioner. Okay.
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` But what I'm asking is sort of separate
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`from what they identified.
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` Looking at these two columns in the patent,
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`what, if anything, as you understand it, describes
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`Videotaped Deposition of Dr. Kevin Almeroth
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`the prior art to the '732 patent?
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` A. I really don't know that there's much in
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`the background that talks specifically about prior
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`art. There's some general discussion not necessarily
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`related to anything about the prior art.
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` And, really, for purposes of my analysis,
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`it was what the petitioner and Dr. Heppe identified.
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`I don't think I even disputed what they were saying;
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`I took more as to what they were saying as a given,
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`and did my analysis from there.
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` Q. Okay. So would you agree or disagree that
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`the background section of the '732 patent describes
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`the prior art?
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` A. I don't think it's as simple as that. I
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`think, for example, if you look at the second
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`paragraph it talks about one way to classify control
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`systems. I mean, that's -- in the present tense,
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`it's talking about a classification system that the
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`inventors had contemplated. I don't think that's a
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`discussion of the prior art. So I don't think it is
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`the case that the background section is wholly about
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`the prior art.
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`Videotaped Deposition of Dr. Kevin Almeroth
`Conducted on July 1, 2016
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` As I said earlier, there might be some --
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`some parts of this that are related to the prior art
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`or at least summarize broadly what the prior art is.
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` But for purposes of my analysis, I've
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`really assumed that the reference called the admitted
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`prior art was the sections that the petitioner and
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`Dr. Heppe specifically identified.
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` Q. Okay. So you didn't attempt to address any
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`other portions of the '732 patent that perhaps may be
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`admitted prior art?
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` MR. GONSALVES: Objection.
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` THE WITNESS: Well, I understand the
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` instituted ground was for that specific admitted
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` prior art. It was identified specifically
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` within the discussion by the PTAB. I understand
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` that that's the ground at issue.
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` As to whether or not that admitted prior
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` art scope can now be expanded based on
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` identifying additional citations, I guess to the
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` extent that that would be allowed by the PTAB,
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` then -- I don't know if I'd be given a chance to
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` offer opinions. But what I can say is I did my
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` analysis based on that admitted prior art.
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` And my declaration also talks in other
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` sections about other places that Dr. Heppe
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` points to in the '732 patent.
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` So, for example, under that subsection 2
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` for the motivation to combine Kahn with the
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` admitted prior art, he points to sections of the
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` '732 patent which are not part of the admitted
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` prior art and actually relate to the invention.
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` So at least with respect to those among the
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` parts of the specification, I've looked at them
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` and I've determined that they aren't a
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` description of the prior art.
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` And, really, unless you want to point to a
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` particular portion of the patent and we can
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` discuss it, I don't think that there is anything
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` to my recollection in the patent that relates to
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` the prior art.
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`BY MR. JACKSON:
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` Q. Just to clarify the last part of your
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`answer, you said, "I don't think that there is
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`anything to my recollection in the patent that
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`relates to the prior art."
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` Is that what you meant to say?
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` A. I meant to say beyond the sections that the
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`PTAB had instituted --
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` Q. Okay.
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` A. -- based on --
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` Q. That's what I thought you meant; just
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`wanted to clarify it.
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` Let me go back to the '732 patent, at the
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`bottom of column 1, the sentence you just identified,
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`which reads: One way to classify control systems is
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`by the timing involved between subsequent monitoring
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`occurrences.
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` Given that this is a statement that's in
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`the background section, is it possible that the
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`inventors were describing that those -- or stating
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`that those of skill in the art knew that there was --
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`at least one way to classify control systems is by
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`the timing involved?
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` A. I don't think that that's what the
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`inventors were saying. It doesn't say that people of
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`ordinary skill in the art understood that there were
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`ways of classifying control systems, or it doesn't
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`say it was known that people of skill in the art
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`classified systems this way. It's the inventors
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`speaking about the prior art and qualifying it.
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` Q. Okay. I'm sorry, were you finished?
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` A. I was.
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` Q. Okay. Just going back then to the prior
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`art time period in the mid-1990s, I believe the
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`earliest priority date claimed for this patent is
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`October of 1998.
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` So when I talk about at the time of the
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`invention, I'm referring to the period just before
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`October of '98, just so that you understand what I
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`mean, unless, you know, we indicate otherwise in the
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`context of the question.
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` But based on your knowledge and your work
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`in the field, going back to the period just before
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`the original priority date of this patent, was it
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`true that people of skill in the art knew that you
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`could classify control systems based on timing and --
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`such as aperiodic or random periodic and real time?
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` A. I don't know that that's something that a
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`person of skill in the art would have understood.
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` Certainly I think that people of
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`extraordinary skill in the art would have understood
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`ways of classifying those systems. But to project
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`understood, I'm not sure that I've seen evidence that
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` Q. Were you aware of those different types of
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`classifications in 1998 before October?
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` A. Yes.
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` Q. And do you put yourself in the category at
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`that time of being a person of extraordinary skill?
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` A. Yes.
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` Q. Okay. And at that time -- you consider
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`yourself at that time to be of extraordinary skill
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`because you had greater qualifications than what
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`you've indicated in your declaration as being those
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`associated with a person of ordinary skill in the
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`art; is that right?
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` MR. GONSALVES: Objection.
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` THE WITNESS: Well, certainly I had a Ph.D.
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` I had spent time with wireless networks. So I
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` think I surpassed what I had identified as the
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` ordinary level of skill --
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`BY MR. JACKSON:
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` Q. Okay.
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` A. -- as of the time that you were using,
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`which is about 1998.
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` Q. Okay. So you -- on page 41 of your
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`declaration you identify several citations that
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`Dr. Heppe used in his declaration, and you identify
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`them as now being part of the admitted prior art.
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` Do you understand that Dr. Heppe was
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`identifying those citations not as being part of the
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`admitted prior art but instead as being a part of the
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`reason to combine various references?
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` MR. GONSALVES: Objection.
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` THE WITNESS: I believe -- my
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` understanding, and I can confirm it by looking
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` at his declaration, was that he was relying on
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` those portions of the '732 patent to create a
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`Videotaped Deposition of Dr. Kevin Almeroth
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` motivation to combine Kahn with the admitted
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` prior art.
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` And the fact that he was looking to the
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` specification of the '732 patent for the kinds
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` of problems being solved and then using that as
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` a motivation to combine references is what I
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` understand to be as hindsight, and I've
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` addressed that in this section 2 of my
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` declaration.
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`BY MR. JACKSON:
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` Q. Okay. To the extent you may want to refer
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`to his declaration, I'll put a -- give you a copy.
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`It's Exhibit 1004 in this proceeding.
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` A. So do you want me to go through and find
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`where he cited these?
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` Q. Not necessary. I wasn't asking you to do
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`that. I just thought since you mentioned, you know,
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`his declaration, it might be a good time to give you
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`a copy in case in the future you do want to refer to
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`it.
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` A. Okay. Thank you.
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`09:23:17
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`09:23:17
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` Q. In paragraph 103 of your declaration you
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`address Dr. Heppe's argument about cost savings
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`identified in the '732 patent.
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` Do you see that?
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` A. I do.
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` Q. Okay. And in the '732 patent, at column 2
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`I think it is, looks like lines 34 to 46, in that
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`area, the '732 patent in the background section
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`addresses problems that exist with existing control
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`system technology.
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` Do you see that?
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` A. I do. And again, to be clear, it's the
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`inventors giving their spin or interpretation or
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`insight onto -- into what those problems are.
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` Q. And actually let me refer you to the
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`paragraph that begins at line 34 of column 2.
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` Some of the problems that the inventors
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`describe are -- one of them at least is the costs
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`associated with the sensor actuator infrastructure of
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`then existing control system technology.
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` Is that fair?
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` A. I don't see where they say that.
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` Q. Line 35 to 36.
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`Videotaped Deposition of Dr. Kevin Almeroth
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` A. Right. Are costs associated with the
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`sensor actuator infrastructure required to monitor
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`and control functions within said systems. I see
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`that.
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` Q. What is the infrastructure that's referred
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`to there?
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` A. I think that they go on to describe what
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`that infrastructure is. It's not only the expense
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`sensors and actuators, but the added expense of
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`the local controller. And then it goes on.
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` Another prohibitive cost associated with
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`applying control systems technology to distribute its
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`systems is the installation and operational expenses
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`associated with the local controller.
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` So the paragraph starts off with an
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`introductory sentence and then goes on to provide
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`more detailed information as to what it's referring
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`to when it talks about the sensor actuator
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`infrastructure.
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` Q. And to install a local network of hardwired
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`sensors and actuators, that necessarily means you
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`have to also install the wires for those sensors and
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`actuators; correct?
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` A. Or that the wires have to be present.
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` So, for example, in some instances there
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`are communications systems that work over a power
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` So either it's wires that already exist
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`potentially for another purpose, or some instances
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`potentially at the time that the facility was built.
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` Q. How far back does that technology go, the
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`hardwired sensoring systems?
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` A. I actually think it goes quite far back.
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`And the idea of doing power or Ethernet, for example,
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`over power is quite an old technology. It's actually
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`fallen out of favor more recently because Moore's Law
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`and bandwidth has meant that you can do much better
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`even with wireless.
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` Q. How about dedicated wired monitoring
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`systems, how far back does that concept go?
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`09:27:31
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` A. It really depends on the scope of what you
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`mean by a monitoring system. Certainly you can have
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`home alarm systems and the like. I'm sure they've
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`been around since before 1998. I'm not sure I can
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`put a date on when they were first invented.
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` Q. Sure. Obviously in a wireless system -- if
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`system, one of the things you don't have to do is
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`install and maintain the wired connection between a
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`controller and the sensors and actuators; correct?
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` A. Your hypothetical is fairly broad, and I
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`think it's almost tautological.
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` If you're saying that you transition from a
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`system with wires to a system without wires, you
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`don't have to have wires, if that's the sum total of
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`what you're saying, then I would agree with that.
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` Q. Do you have an idea of approximately --
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`well, let's take a specific field. Let's take the
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`industrial process monitoring and control
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`environment. Are you familiar with that field?
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` A. Generally, yes.
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` Q. Okay. In that environment, do you have an
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`estimation of approximately how much it costs to
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`install a wired sensor versus installing a wireless
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`sensor today?
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` A. That's an interesting question. It's
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`actually one that I discussed in my declaration,
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`that's something Dr. Heppe should have performed as
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`part of his justification that there would have been
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`a motivation.
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` Without him actually having performed that
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`task, I don't think he is in a position to say that
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`there would have been a motivation to do so based on
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`wiring alone.
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` Now, having said that, based on my
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`experience, the cost is principally focused within
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`the hardware components of the sensors and the
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`controllers. And the other hardware -- the wiring
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`itself is really a one-time installation. It doesn't
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`require the kinds of periodic upgrade, it doesn't
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`require software, and typically is built as part of
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`the infrastructure.
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` As to what the exact cost might be, it
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`certainly depends on the facility, the size of the
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`facility, the types of monitoring and control.
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` But what I've also understood from working
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`in the field is that once you have conduit paths that
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`are designed and put in place for things like
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`communication, for power, adding additional conduit
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`or additional wires within the conduit that are
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`provided is actually quite a small expense.
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` And let me give you a specific example.
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`When we were looking at wiring and putting in optical
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`fiber at UCSB when I first got there in about '97, in
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`some places it was very inexpensive because they
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`already had the conduit in place and it was simply a
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`matter of pulling the fiber; in other places the
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`conduit that they had was full and they had to
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`install additional conduit which was much more
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`expensive.
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` So those are the kind of factors that I at
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`least considered when providing the opinions that I
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`did in my report.
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` Q. Would it surprise you if those that work in
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`the industrial process monitoring and control systems
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`environment today were to tell you that the cost of
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`installing a wired sensor compared to a wireless
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`sensor is more than double the cost of the wireless
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`sensor?
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` A. I would challenge what their assumptions
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`were. I think that if one of their assumptions is
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`predicated on an assumption as to whether or not
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`there was existing wired infrastructure that would be
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`available for them to use, or if they were assuming
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`that there was no available wired infrastructure and
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`that it would have to go in and be deployed, I think
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`that that's one factor to consider in whether
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`somebody would say that.
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` I think the other place that I would
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`challenge that assumption is under the idea that they
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`are potentially ignoring the costs associated with
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`dealing with the wireless environment.
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` The RF radios and the modems can be more
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`expensive, you have to have more robust security
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`mechanisms.
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` In some instances, depending on the
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`environment and the sensitivity of the control, you
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`actually need a wired backup, because if you're in a
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`manufacturing facility and there's RF interference,
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`you can't be out of communication with your wireless
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`control devices, and that's a possibility with
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`wireless that's less so with wired.
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` Q. Looking agai
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