APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`APPLE, INC.,
`Petitioner,
`v.
`CHESTNUT HILL SOUND INC.,
`Patent Owner
`___________
`Case IPR2016-00794
`Patent No. 8,090,309
`____________
`ORAL AND VIDEOTAPED DEPOSITION OF
`MELVIN RAY MERCER, Ph.D., P.E.
`NOVEMBER 11, 2016
`VOLUME 1 OF 1
`
` ORAL AND VIDEOTAPED DEPOSITION OF MELVIN RAY MERCER,
`Ph.D., P.E., produced as a witness at the instance of
`the Patent Owner, and duly sworn, was taken in the
`above-styled and numbered cause on November 11, 2016,
`from 9:13 a.m. to 2:45 p.m., before April R. Brunson,
`CSR in and for the State of Texas, reported by machine
`shorthand, at the law offices of Fish & Richardson,
`P.C., 5000 Bank One Center, 1717 Main Street, Dallas,
`Texas, pursuant to the Federal Rules of Civil Procedure
`and the provisions stated on the record or attached
`hereto.
`
`HG LITIGATION SERVICES
`HGLITIGATION.COM
`
`CHS Ex. 2007
`Apple v. CHS IPR2016-00794
`
`

`
`2 (Pages 2 to 5)
`Page 4
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` E X H I B I T S
`NO. DESCRIPTION PAGE
`1017 Claim elements list for 6
` U.S. Patent 8/090/309
`
`2006 Petition for Inter Partes Review 96
`
`APPLE 1003 Declaration of M. Ray Mercer 19
`
`Page 5
`
` P R O C E E D I N G S
` THE VIDEOGRAPHER: We're now going on the
`video record. Today is November 11th, 2016. The time
`is approximately 9:13 a.m. The location is Fish &
`Richardson, 1717 Main Street, Dallas, Texas.
` My name is Jeremy Gilliam. I'm the video
`specialist representing HG Litigation Services.
` The case number is IPR 2016-00794, in the
`matter of Apple, Inc., versus Chestnut Hill Sound, Inc.
`The deponent is Melvin Ray Mercer, Ph.D. This video
`deposition is requested by the patent owner's counsel,
`Caldwell Cassady Curry, PC.
` Counsel, please state their appearances
`for the record.
` MR. HAMAD: This is Hamad Hamad and
`Alexis Mosser from Caldwell Cassady Curry.
` MS. VIDAL: Kathi Vidal, and on the phone
`with me is Josh Griswold, as well as Dan Smith, all from
`Fish & Richardson representing Apple, Inc.
` THE VIDEOGRAPHER: Will the court
`reporter please swear in the witness.
` MELVIN RAY MERCER, Ph.D., P.E.,
`having been first duly sworn, testified as follows:
` EXAMINATION
`BY MR. HAMAD:
`
`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 2
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` A P P E A R A N C E S
`
`FOR THE PETITIONER:
` Ms. Katherine Vidal
` Mr. Dan Smith (Via teleconference.)
` FISH & RICHARDSON, P.C.
` 500 Arguello Street, Suite 500
` Redwood City, California 94063
` 650.839.5070
` vidal@fr.com
` Mr. Joshua Griswold (Via teleconference.)
` FISH & RICHARDSON, P.C.
` 500 Bank One Center
` 1717 Main Street
` Dallas, Texas 75201
` 214.747.5070
` 214.747.2091 (Fax)
` griswold@fr.com
`
`FOR THE PATENT OWNER:
`
` Mr. Hamad M. Hamad
` Ms. Alexis Mosser
` CALDWELL CASSADY & CURRY
` 2101 Cedar Springs Road, Suite 1000
` Dallas, Texas 75201
` 214.888.4848
` 214.888.4849 (Fax)
` hhamad@caldwellcc.com
`
`ALSO PRESENT:
` Jeremy Gilliam, Videographer
`
`Page 3
`
` I N D E X
` PAGE
`Appearances..........................................2
`Exhibit List.........................................4
`Stipulations.........................................---
`
`THE WITNESS: MELVIN RAY MERCER, Ph.D., P.E.
` Examination by Mr. Hamad........................5
`
`Signature and Changes................................110
`
`Reporter's Certificate...............................112
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`HG LITIGATION SERVICES
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`

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`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 6
` Q. Good morning, sir. Can you please introduce
`yourself for the record.
` A. Yes. My name is Melvin Ray Mercer.
` Q. Dr. Mercer, for today's deposition and for the
`sake of the court reporter, can we agree to try not to
`speak over each other?
` A. Yes.
` Q. Similarly, can you agree to provide verbal
`answers, as opposed to a head shake or a head nod?
` A. I will do my best.
` Q. And you do understand that you're providing
`testimony under oath today?
` A. I do.
` Q. Before we went on the record, you had a
`document that appears to list the claim elements with
`the numbering used in Apple's petition; is that correct?
` A. That's correct. Though it started like that.
`There were a few minor changes, but essentially that was
`just to sort of capture what I think they would have
`done.
` Q. That's fine. And just for the record, we're
`going to mark this as Exhibit 1017, and you're welcome
`to refer to it as needed throughout the deposition.
` (Exhibit 1017 was marked.)
` A. Thank you very much, Mr. Hamad.
`
`Page 7
` Q. (BY MR. HAMAD) Dr. Mercer, what did you do to
`prepare for today's deposition?
` A. Well, a while back I started work on this
`particular case and actually was a person who made a
`declaration for a previous patent. And then there
`was -- then I started working on this particular patent.
`Obviously, all of the things that I've done which I've
`been working on since the day I started have been
`ultimately in preparation for this case.
` If the question is what have you done
`recently, I can give you more details about that.
` Q. I think the question was just what did you do
`to prepare for today's deposition?
` A. Well, I kind of think I'm always preparing for
`the deposition that's coming because I think about that
`at the moment I get hired. But if you want in the last
`few days, then for probably a week and a half, I have
`been reviewing key documents that I think are at issue
`in this IPR. And yesterday I visited Fish & Richardson
`and spent several hours here speaking with counsel.
` Q. Can you please identify the documents that you
`reviewed in preparation for today's deposition?
` A. I'm not sure I can give you an exhaustive
`list, but I can certainly give you what I have -- what I
`remember.
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`3 (Pages 6 to 9)
`Page 8
` The first -- first thing that comes to my
`mind is my declaration.
` MS. VIDAL: I'm just going to counsel the
`witness not to disclose any attorney-client
`communication.
` THE WITNESS: Understood. Thank you.
` A. Second thing I remember is the petition. The
`third thing I remember is the patent owner's response --
`initial response, the patent board's finding and
`decision to initiate trial, the '309, which I would say
`is the patent in review, the prior art that's referenced
`in my report. That includes a patent by Mr. AbiEzzi,
`something like that; Mr. -- another patent by
`Mr. Baumgartner. And those are put forward as the
`obvious combination at issue here.
` And then there were some other documents
`that were supportive of generic points or opinions that
`I held. I'm not sure that I can remember every one of
`those because I think there were about six or seven.
` Bar is one that comes to mind because it
`was at the top of the list. I remember seeing it. I
`just don't remember the names of the others.
` And you asked -- you asked what documents
`I reviewed?
` Q. (BY MR. HAMAD) Yes, sir, that was the
`
`Page 9
`
`question.
` A. Okay.
` Q. And you said that you visited with folks from
`Fish yesterday?
` A. I did.
` Q. Can you identify the names of individuals that
`you spoke to?
` A. Well, certainly Kathi Vidal here, Josh
`Griswold, and Dan Smith. They were the three people
`that I remember in the room.
` Q. Have you talked to any non-Apple attorney in
`preparation for today's deposition?
` A. What you're saying is -- in preparation for
`this deposition, no, I have not.
` Q. Have you spoken to any non-Apple attorney
`about this IPR proceeding?
` A. Not that I can remember. Maybe I should amend
`that because sometimes there are discussions with
`attorneys in other cases and I indicate something about
`the schedule to them, like I will not be available until
`after November the 11th because I'm tied up on another
`case until that time, but not -- not any technical
`details at all, just the logistics.
` Q. Okay. I appreciate the clarification. So
`your point is you haven't talked to any non-Apple
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`HG LITIGATION SERVICES
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`

`
`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 10
`counsel about the substance or the merits of this IPR
`proceeding?
` A. I would agree with that statement.
` Q. Do you remember when you were retained for
`this IPR proceeding?
` A. No, I honestly do not. My recollection is
`that the declaration went in in March, I believe, and --
`but I would just -- I would have to conjecture about
`exactly when the retention occurred.
` Q. Do you remember about when you started working
`on the IPR proceeding?
` A. Generally speaking, I start working on
`something the day I get the assignment because I want to
`start to build up a general understanding, and so that
`was some period before. Maybe it was March the 27th or
`something like that.
` Q. Do you have, like, an estimate of a time
`period of when you might have started working on it?
` A. You are asking for calendar time period,
`right?
` Q. Yes, sir.
` A. It would be a rather poor estimate, I think,
`but I mean, if you want a number, I would say 60 days,
`but I certainly couldn't certify that. That's just the
`best I can give you as a recollection.
`
`Page 11
` Q. And when you say "60 days," you mean
`approximately 60 days before submitting your declaration
`in this IPR?
` A. That is correct, so about sometime in January,
`maybe.
` Q. When did you first become aware of the AbiEzzi
`reference?
` A. That would have been when counsel provided it
`to me as part of my work for this activity.
` Q. And your best estimate of that was January
`2016?
` A. Yeah, though it might have been a few days
`before -- a few days after we had a telephone
`conversation. Normally, I get sort of a group of
`materials, and those usually involve the -- in the -- in
`this particular case, obvious prior art, obviousness
`prior art.
` Q. Okay. Just to clarify, when counsel provided
`you the AbiEzzi reference, your best estimate as to when
`it was provided to you is about the January 2016 time
`frame when you were given this assignment?
` A. That would be my best estimate.
` Q. Were you aware of the AbiEzzi reference prior
`to your engagement by Apple?
` A. Not to my recollection.
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`Page 12
` Q. When did you become -- I'm sorry. Strike
`that.
` When did you first become aware of the
`Baumgartner reference?
` A. I would suspect it was the same time or very
`close. I think they -- I think those documents were
`provided to me simultaneously.
` Q. So again, your best estimate as to when you
`learned about the Baumgartner reference was when it was
`provided to you by Apple's counsel in approximately
`January 2016?
` A. Yes.
` Q. And were you aware of the Baumgartner
`reference prior to your engagement by Apple in this IPR?
` A. Not that I recall.
` Q. Dr. Mercer, do you understand that when you
`conduct an obviousness analysis, you have to do it from
`the perspective of a person of ordinary skill in the art
`at the time of the invention, right?
` A. At the critical date of the invention is the
`way I -- that's the word I use.
` Q. When you were doing your analysis, you were
`able to look at Chestnut Hill's patent claims first,
`right?
` A. Yes.
`
`Page 13
`
` MS. VIDAL: Object to form.
` THE WITNESS: I'm sorry.
` A. You mean -- let's be -- let's be clear about
`what you mean by "first," I guess. The very last word
`you used was you were able to look at Chestnut Hill's
`patent claims first; is that correct?
` MR. HAMAD: Can you please read back the
`question to him?
` (Requested portion read by the reporter.)
` A. Okay. So I think the real thing I need
`clarification about, when you -- when you say "your
`analysis," could you be more specific about that?
`Because, if you remember, with respect to the claims
`now, there were prior proceedings.
` Q. (BY MR. HAMAD) So the clarification you're
`asking for is whether I'm talking about the patent in
`this IPR proceeding or another patent in another IPR
`proceeding?
` A. The same patent, but in the context of this
`IPR proceeding or generically with no context specified,
`just the earliest time I ever looked at the claims of
`the '309 patent.
` Q. I think I'm confused by your answer, but let
`me see if I can -- let me see if I can try to break this
`down. The patent at issue in this IPR is the '309
`
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`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 14
`
`patent, correct?
` A. That's right.
` Q. And the '309 patent was assigned to Chestnut
`Hill, correct?
` A. That's my understanding.
` Q. For purposes of today's deposition, if I say
`the "'309 patent" or "Chestnut Hill's patent," can we
`agree to be meaning that we're talking about the same
`patent within the context of this IPR?
` A. Yes.
` Q. When you were conducting your obviousness
`analysis, you got to look at Chestnut Hill's patent
`claims before analyzing the AbiEzzi and Baumgartner
`references, correct?
` A. That is a true statement.
` Q. So when you were conducting your obviousness
`analysis, you got to see the claims, the claim elements,
`and then you looked at AbiEzzi and Baumgartner, analyzed
`those, and figured out or analyzed how they would meet
`the claim limitations in the '309 patent?
` A. No. That's not correct. And I'll be happy to
`explain, if you wish.
` Q. When you were conducting your obviousness
`analysis, you did not compare the claims of the '309
`patent to the AbiEzzi and Baumgartner references?
`
`Page 15
` A. Well, when I first saw the '309 patent, I
`didn't consider those claims at all in light of AbiEzzi
`and Baumgartner, because I wasn't at that time even
`aware, as I've already testified, of those two pieces of
`prior art.
` Q. Okay. I think we're maybe running into the
`same issue we had last time. For purposes of today's
`questions, unless I, you know, specifically say
`otherwise or I guess make it clear with my question, I'm
`really talking about your analysis for purposes of this
`IPR proceeding. Is it fair if we conduct the rest of
`the deposition with that understanding?
` A. Yes. But I think it's also important to
`understand that your question didn't involve just the
`analysis of the '309 but the analysis of the '309 in
`light of the AbiEzzi and the Baumgartner patent, and so
`my response is, obviously, I had access to the '309 and
`I might well have known that there was going to be a new
`IPR. I just didn't happen to know what art there would
`be initially. But even at that time, I did have access
`to the claims of the '309 patent.
` Q. Okay. I think we might be talking past each
`other because I think I may be getting at something
`simpler than what you're thinking. Let's back up.
` You said it was a true statement that when
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`5 (Pages 14 to 17)
`Page 16
`you were conducting your obviousness analysis, you got
`to look at Chestnut Hill's patent claims before
`analyzing the AbiEzzi and Baumgartner references?
` A. That's true.
` Q. So I was -- the point that I was trying to get
`to -- and I'll try asking it again with this in mind,
`when you started analyzing or reviewing the AbiEzzi and
`Baumgartner references --
` A. Yes.
` Q. -- you had already analyzed and looked at the
`claim elements of the '309 patent, correct?
` A. As claim elements?
` Q. As claim elements.
` A. But your earlier question involved obviousness
`analysis and not with respect to obviousness analysis
`with respect to these two pieces of prior art.
`Logically, it couldn't be that way.
` I have the patents, let's say, on day one,
`and I have the prior art on another day, one plus some
`constant. So the first time that I can -- that I can
`consider an obviousness analysis is when I have two
`pieces of the puzzle.
` And maybe if your start date is the day
`that I have all the pieces of the puzzle, then I think
`I -- then I would have to answer I did them at the same
`
`Page 17
`
`time, right? You understand?
` Q. I'm not sure I do, but let me ask you this:
`When you were tasked with this assignment, this IPR
`proceeding, what did you look at first when you began
`reviewing the materials?
` A. I'm pretty sure that I looked at the '309
`because I already had the '309, and I would -- and so I
`would look at the '309, but I would not be conscious at
`that point of what the proposed obviousness combinations
`or whatever invalid combin- -- invalidity combinations
`there might be.
` Q. In the context of the '309 patent, do you have
`any opinions about what a mode is?
` A. Yes, I do.
` Q. In the context of the '309 patent, what is a
`mode?
` A. Okay. So let me first be very specific. When
`I answered that question, I thought you just meant "a"
`as one or more, okay? So my opinion has to do with two
`modes, the first mode and the second mode, as they
`appear in the claim.
` Is that an answer to your question? And
`then I'll tell you what those are, if I understand the
`question.
` Q. If I'm not -- I'm not asking what mode 1 or
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`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 18
`mode 2 are in the claims. I'm just asking, in the
`context of the '309 patent, what is a mode?
` A. I don't think that a mode has a context
`outside the claims of the '309 patent. The mode may
`have a generic meaning, but that generic meaning is not
`in the context of purely the '309 patent. At least,
`that was not something I ever considered. I was always
`interested in mode in the context of the '309 patent.
` Q. Let me see if I understand your position.
`Your understanding of mode is defined by the claims of
`the '309 patent?
` A. In this particular case, in the context of the
`'309 patent, yes.
` Q. Is that definition informed by the
`specification?
` A. It is, but more informed by the patents in
`suit -- I mean by the patents in review, the elements of
`the patents in review.
` Q. When you say "the elements of the patents in
`review," do you mean the elements of the claims in
`review?
` A. Yes, that's right, the claims of the patents
`in review.
` Q. Okay. So can you give me your understanding
`of the meaning of the term "mode" in the context of the
`
`Page 19
`
`'309 patent?
` A. I can -- I can explain to you what a first
`mode is and a second mode is, but I never considered
`what the metes and bounds of the word "mode" in -- you
`know, as just a separate entity were because I didn't
`think that made any sense since I was always going to be
`working with this context.
` Q. Dr. Mercer, I'm going to hand you Exhibit 1003
`in this IPR proceeding. This has already been marked.
`Can you please identify what Exhibit 1003 is for the
`record?
` A. Yes. And if it's okay, maybe I could clarify
`that earlier answer.
` Remember, you asked -- I said in the
`context of the -- I said in the context of the patent,
`and then you said in context of the claims of the
`patent, right? And so obviously, my first focus was on
`the claims that were being analyzed, but then obviously,
`the teaching of the patent might inform about the
`meanings of those particular limitations. That's what I
`was trying to say when I used the word "patent" rather
`than "claims."
` MR. HAMAD: Can you please read back my
`last question?
` (Requested portion read by the reporter.)
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`6 (Pages 18 to 21)
`Page 20
` A. Yes. This is the declaration of M. Ray
`Mercer, and that's me. And if you look at the last
`page, it was signed on March the 24th, 2016, and it
`appears in 53 pages.
` Q. (BY MR. HAMAD) Exhibit 1003 is your
`declaration?
` A. 1003 is my -- is the declaration of M. Ray
`Mercer; that's correct.
` Q. For purposes of today's deposition, if I refer
`to it as either Exhibit 1003 or as your declaration, can
`we agree that we're both talking about the same
`document?
` A. Yes. I would suggest that you use my
`declaration because I don't necessarily pay a lot of
`attention to numbers unless you are specific. You
`understand? I don't necessarily memorize this document
`as 1003. Generally, I think I will remember it that
`way, but I don't guarantee that. But I will definitely
`remember it as declaration of M. Ray Mercer.
` Q. That's fair. How about we'll just stick with
`your declaration?
` A. Thanks.
` Q. Dr. Mercer, did you type all of the words in
`your declaration?
` A. No.
`
`Page 21
` Q. Did you pick out which figures to put in your
`declaration?
` A. I'm not sure that I can answer that question
`because I don't think I remember.
` And I think I want to bring one other
`thing to your attention: The declaration as it was
`issued, I believe, was in color. And there were -- with
`respect to these figures, there were some annotations in
`red.
` The -- the figures as I see them here --
`maybe it doesn't matter, but they're not annotated in
`red. But it's still obvious to me where the annotation
`occurred because they happen to be highlighted in gray
`now or in a box in gray.
` But the question -- to go back to your
`question, with respect to the document that I submitted,
`I don't specifically remember whether I selected these
`or whether someone else selected them, but I think it's
`most likely that they were selected sort of as a
`cooperative effort between me and counsel.
` Q. Let me make one more clarification for the
`record. And I think it might speed up the deposition,
`might be less stuff for you to look at. When I ask
`about something in your declaration, I'm referring to
`portions of your declaration that are relevant to the
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`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 22
`grounds upon which the IPR proceeding was instituted.
`Is that fair? So for example --
` A. Well, let me just ask -- yeah, I want an
`example --
` Q. So for example --
` A. -- because I think they're all relevant.
` Q. So for example, if I ask you to take a look
`at -- if I ask you about the figures in your
`declaration, I'm referring to the portions in your
`declaration regarding AbiEzzi and Baumgartner.
` MS. VIDAL: Object to form.
` Q. (BY MR. HAMAD) Just to save us a whole bunch
`of time, I don't want you to necessarily flip through 30
`pages of material on VDM and the other reference because
`I'm not going to asking you questions about that.
` A. Okay. I understand your question. Yeah,
`okay. So I understand that as we're talking today, if
`it's okay, we will not think about VDM and Jawa, or
`whatever that was, at all. Perfectly understood in that
`respect.
` But what I was looking for was just --
`remember I told you there were these supplementary
`pieces of things that sort of I used to support for my
`opinions? That's what I was looking for.
` Q. Do you know who excerpted or annotated the
`
`Page 23
`figures that are in your declaration as to the AbiEzzi
`and Baumgartner references?
` A. With respect to the actual production of the
`figure, I don't -- I don't know who did that. But with
`respect to the decisions about what was in the figure
`and how they were -- generically how they were
`annotated, I don't have a fine recall, but I would think
`that that would probably be a cooperative effort as
`well.
` Q. Do you have an estimate as to what percentage
`of your declaration you personally typed?
` A. No, I don't. That's just -- that's a detail I
`didn't bother to remember, so I can't say. But I can
`assure you that there were things that I typed that
`don't -- don't appear here, okay, and there are things
`that appear here that I didn't type.
` Q. Do you know if you typed half of your
`declaration?
` A. I don't think I typed half of it.
` Q. Do you think you typed more or less than half
`of it?
` A. And you're talking about physical fingers on
`the key?
` Q. Yes, sir.
` A. Oh, I would say that my fingers were on the
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`7 (Pages 22 to 25)
`Page 24
`keys for less than half of the alphanumeric text, and
`with respect to the figures, as I told you, I didn't do
`their production at all.
` Q. Do you know if you typed more or less than
`25 percent of the text in your declaration?
` A. Now we're to a point where I just -- I can't
`answer that. You have to understand that there are just
`all these little pieces that went back and forth, so I
`don't know.
` Q. Dr. Mercer, as between you and Apple, who
`developed the theories or the opinions that appear in
`your declaration?
` A. Every one of these is my opinions -- is my
`opinion, and I take total responsibility and support
`every one of them. So as they were stated here, those
`are my opinions.
` Q. Were those opinions developed in conjunction
`with Apple's counsel?
` A. I think that's -- it was a collaborative
`effort, yes.
` Q. Dr. Mercer, can you please flip to pages 12
`and 13 of your declaration?
` A. Yes.
` Q. And just a point of clarification -- okay.
`Sorry. I thought maybe there were Bates-stamped pages,
`
`Page 25
`but the pages do appear to be consistent with your
`original declaration, so...
` Are we on page 12 and 13?
` A. Yes.
` Q. In about the bottom third of page 12, you have
`a second B titled, "A POSITA would have combined AbiEzzi
`and Baumgartner," correct?
` A. That's where it begins, yes.
` Q. And this section is intended to contain your
`opinions on the reasons or the motivations to combine
`AbiEzzi and Baumgartner, correct?
` A. Yeah, but my recollection of this document is
`that there is additional material in addition to what
`you find in this particular section appurtenant to that
`issue that is described.
` Q. And in fact, in other places in your
`declaration, when you want to discuss the reasons or
`motivations to combine AbiEzzi and Baumgartner, you
`actually refer back and cite to this section of your
`declaration, correct?
` A. To my knowledge, that always happens, but it
`also may be amplified at the point that I refer back.
` Q. Can you please flip to page 17 of your
`declaration?
` A. I have that.
`
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`APPLE, INC: MELVIN RAY MERCER, Ph.D., P.E.
`
`Page 26
` Q. And can you confirm that paragraph 33 of your
`declaration is, in fact, one example of your declaration
`citing back to Section V (B) regarding the reasons to
`combine AbiEzzi and Baumgartner?
` A. Yes. This -- this says that that at least --
`this doesn't mean that this is an exclusive reason that
`the modification occurred, but this is an instructive
`paragraph that refers back to Section V (B).
` Q. Can you flip back to paragraph 26 of your
`declaration, please? Are you there, sir?
` A. I'm just reading the paragraph, if that's
`okay, before I answer your question. Okay. I finished
`reading the paragraph.
` Q. Before we get into paragraph 26, are you aware
`or can you identify other paragraphs in your declaration
`where you discuss the reasons or the motivations to
`combine AbiEzzi and Baumgartner?
` A. I believe I can, but I'll have to -- I don't
`have an identic memory, and so I'll have to read through
`the remainder of this material. And I'm very happy to
`point out to you exactly what those are.
` And you're saying in addition to 26?
` Q. In addition to Section B of your -- Section
`V (B) of your declaration, appearing on pages 12 to 14
`of your declaration.
`
`Page 27
` A. Okay. Well, so if we start with paragraph 28,
`which is in the section called "Querying a remote
`resource involves transmitting a request," the intent of
`this particular section here is to explain how the words
`that were used in AbiEzzi were being interpreted by me
`with respect to my opinions, in light of the claim
`limitation.
` Obviously, the motivation to combine these
`things is essentially to take each of the parts of each
`piece of this thing and analyze how they result in the
`combination. And so while this first part is talking
`about the combination itself, this part here is
`amplifying on aspects of AbiEzzi which are also being
`combined, right?
` Q. Dr. Mercer, can you point to anywhere in
`paragraph 28 where you cite to or mention Baumgartner?
` A. And you mean literally, explicitly, or
`inherently?
` MR. HAMAD: Can you please read back my
`question?
` (Requested portion read by the reporter.)
` A. Okay. So then I'm going to interpret your
`question where you say "cite" as literal, do I literally
`cite, right?
` And I do not see the term "Baumgartner"
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`8 (Pages 26 to 29)
`Page 28
`
`or anything that would indicate Baumgartner in
`paragraph 28, that literal word or that literal
`reference by itself.
` Q. (BY MR. HAMAD) Dr. Mercer, do the words
`"motivation," "reason," or "combine" appear anywhere in
`paragraph 28?
` A. Literally?
` MR. HAMAD: Can you please read back my
`question?
` (Requested portion read by the reporter.)
` A. You mean the literal words, not the ideas
`associated with the words that you're talking about?
` Q. (BY MR. HAMAD) My question is not tricky,
`Dr. Mercer. I'm just asking if those words appear in
`that paragraph.
` MR. HAMAD: Can you please read back that
`question one more time?
` (Requested portion read by the reporter.)
` A. I do not find any of those words or phrases
`literally in paragraph 28.
` Q. (BY MR. HAMAD) Dr. Mercer, are there any
`other paragraphs in your declaration, other than the
`paragraphs appearing in Section V (B) that you contend
`contain your conclusions about the reasons to combine
`AbiEzzi and Baumgartner?
`
`Page 29
`
` MS. VIDAL: Object to form.
` A. Yes.
` Q. (BY MR. HAMAD) Can you identify those
`paragraphs?
` A. Sure. The entirety of the document is
`intended to explain what the ideas are which are taught
`in AbiEzzi and the ideas which are taught in
`Baumgartner.
` So if you put two things together, one of
`the reasons that you put them together is with respect
`to all of the aspects that are defined here. There, for
`example, is no teaching against one being combined with
`the other, but there's not a