UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`))
`
`))
`
`) CASE NO.
`) 3:16-cv-00385-H-WVG
`)
`)
`
`))
`
`)
`
`FASTVDO LLC,
`
`Plaintiff,
`
`-v-
`AT&T MOBILITY LLC,
`AT&T SERVICES, INC., and
`APPLE, INC.,
`
`Defendants.
`
`CONFIDENTIAL - ATTORNEYS' EYES ONLY
`DEPOSITION UPON ORAL EXAMINATION OF EDWARD J. DELP, III
`January 20, 2017
`
`Maria W. Collier, RPR, CRR, Notary Public
`418599
`
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`IPR2016-01179 Ex. 2007
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`SOUTHERN DISTRICT OF CALIFORNIA
`
`))
`
`))
`
`) CASE NO.
`) 3:16-cv-00385-H-WVG
`)
`)
`
`))
`
`)
`
`FASTVDO LLC,
`
`Plaintiff,
`
`-v-
`AT&T MOBILITY LLC,
`AT&T SERVICES, INC., and
`APPLE, INC.,
`
`Defendants.
`
`CONFIDENTIAL - ATTORNEYS' EYES ONLY
`DEPOSITION UPON ORAL EXAMINATION OF EDWARD J. DELP, III
`January 20, 2017
`
`Maria W. Collier, RPR, CRR, Notary Public
`418599
`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`))
`
`))
`
`) CASE NO.
`) 3:16-cv-00385-H-WVG
`)
`)
`
`))
`
`)
`
`FASTVDO LLC,
`
`Plaintiff,
`
`-v-
`AT&T MOBILITY LLC,
`AT&T SERVICES, INC., and
`APPLE, INC.,
`
`Defendants.
`
`CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`The videotaped deposition upon oral
`examination of EDWARD J. DELP, III, a witness produced
`and sworn before me, Maria W. Collier, RPR, CRR,
`Notary Public in and for the County of Hamilton, State
`of Indiana, taken on behalf of the Plaintiff at the
`Homewood Suites by Hilton, 3939 South Street,
`Lafayette, Indiana, on January 20, 2017, at 9:17 a.m.,
`pursuant to the Federal Rules of Civil Procedure.
`
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`APPEARANCES
`
`FOR THE PLAINTIFF:
`Reza Mirzaie, Esq.
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard
`12th Floor
`Los Angeles, CA 90025
`
`FOR THE DEFENDANT APPLE, INC.:
`Christopher Marando, Esq.
`WEIL GOTSHAL & MANGES, LLP
`1300 Eye Street NW
`Suite 900
`Washington, DC 20005-3314
`
`FOR THE DEFENDANT ZTE USA, INC.:
`Erik Dykema, Esq.
`UPSHAW PLLC
`1204 Gano Street
`Dallas, TX 75215
`
`FOR THE SAMSUNG DEFENDANTS:
`Patrick Reidy, Esq.
`ARNOLD & PORTER KAYE SCHOLER, LLP
`601 Massachusetts Avenue NW
`Washington, DC 20001-3743
`
`FOR THE HUAWEI DEFENDANTS (BY TELEPHONE):
`Timothy S. Fox, Esq.
`LTL ATTORNEYS
`300 South Grand Avenue
`14th Floor
`Los Angeles, CA 90071
`
`ALSO PRESENT: Kelly Haering, Videographer
`
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`INDEX OF EXAMINATION
`
`EXAMINATION
`By Mr. Mirzaie:
`By Mr. Marando:
`
`NUM.
`Exhibit 1
`Exhibit 2
`Exhibit 3
`Exhibit 4
`Exhibit 5
`Exhibit 6
`Exhibit 7
`Exhibit 8
`Exhibit 9
`Exhibit 10
`
`Exhibit 11
`
`Exhibit 12
`
`INDEX OF EXHIBITS
`DESCRIPTION
`Appendix 1 to Delp Expert Report
`Appendix 2 to Delp Expert Report
`Appendix 3 to Delp Expert Report
`Appendix 4 to Delp Expert Report
`Appendix 5 to Delp Expert Report
`Appendix 6 to Delp Expert Report
`Appendix 7 to Delp Expert Report
`Appendix 8 to Delp Expert Report
`Appendix 9 to Delp Expert Report
`Appendix 10 to Delp Expert
`Report
`Appendix 11 to Delp Expert
`Report
`Expert Report of Dr. Edward Delp
`Regarding the Invalidity of U.S.
`Patent No. 5,850,482
`
`PAGE
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`7
`180
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`PAGE
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`NUM.
`Exhibit 13
`
`Exhibit 14
`Exhibit 15
`
`Exhibit 16
`Exhibit 17
`Exhibit 18
`Exhibit 19
`Exhibit 20
`
`Exhibit 21
`Exhibit 22
`
`INDEX OF EXHIBITS (Continued)
`DESCRIPTION
`Brief Professional Biography and
`Curriculum Vitae of Edward J.
`Delp
`List of Materials Considered
`Previous Work as an Expert
`Witness
`U.S. Patent No. 5,850,482
`Declaration of Penny Swanson
`U.S. Patent No. 5,392,037
`U.S. Patent No. 5,581,481
`Variable Rate Error Control for
`Wireless ATM Networks
`U.S. Patent No. 5,289,501
`The Performance of
`Rate-Compatible Punctured
`Convolutional Codes for Digital
`Mobile Radio
`
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`(Deposition Exhibits 1 through 16 premarked
`for identification.)
`THE VIDEOGRAPHER: We are going on the record
`at 9:17 a.m. Today's date is January 20, 2017.
`This deposition is being held at 3939 South Street
`in Lafayette, Indiana.
`Here begins the videotaped deposition of
`Edward Delp taken by the plaintiff. This case is
`filed in the United States District Court,
`Southern District of California, Case
`No. 3:16-cv-00385-H-WVG, in the matter of FastVDO
`LLC v. AT&T Mobility LLC; AT&T Services,
`Incorporated; and Apple, Incorporated.
`My name is Kelly Haering in association with
`Stewart Richardson located in Indianapolis,
`Indiana.
`I am the video specialist. The court
`reporter is Maria Collier.
`Counsel may now state their appearances for
`the record and the reporter will swear in the
`witness.
`MR. MIRZAIE: Reza Mirzaie from the Russ
`August & Kabat firm on behalf of plaintiff,
`FastVDO.
`MR. MARANDO: Chris Marando with Weil Gotshal
`Manges on behalf of Apple, Inc.
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`MR. DYKEMA: Erik Dykema with Upshaw PLLC on
`behalf of ZTE USA, Inc.
`MR. REIDY: Patrick Reidy with the law firm of
`Arnold & Porter Kaye Scholer, LLP, on behalf of the
`Samsung defendants.
`EDWARD J. DELP, III,
`having been first duly sworn to tell the truth, the
`whole truth, and nothing but the truth, was examined
`and testified as follows:
`EXAMINATION
`BY MR. MIRZAIE:
`Q Good morning.
`A Good morning.
`Q Can you please state your name for the record.
`A My name is Edward J. Delp, III.
`Q And that's Dr. Delp; correct?
`A Yes. You -- that's okay.
`Q Okay. So how many times have you been deposed?
`A Probably more than eight or ten.
`Q Eight or ten.
`Okay. So you know the ground rules?
`A I think so.
`Q Okay. If you don't understand anything throughout
`the day, just tell me, and I'll try to rephrase my
`question or repeat it. If you need to take a break
`at any time, just let me know.
`
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`A Okay. Thank you.
`Q And there's no reason you can't give truthful
`testimony today; right?
`A No.
`Q Thanks. I want to introduce for the record a few
`exhibits that have been premarked. And these
`are -- these all are parts of your report. So
`Exhibit 1.
`A Can I just stack these here?
`Q Sure, yeah. This is Exhibit 2. I printed them out
`separately. The report was pretty beefy.
`Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,
`Exhibit 7, Exhibit 8, Exhibit 9, Exhibit 10,
`Exhibit 11, and Exhibit 12.
`A Oh, okay.
`That's the big one.
`Q Just a couple more. Exhibit 13, Exhibit 14,
`Exhibit 15. We'll stop there for now.
`So, Dr. Delp, I've handed you 15 exhibits.
`Are they in front of you?
`A Yes.
`Q And can you take a look at Exhibit 12.
`A Exhibit 12. Okay. Yes.
`Q Is this your expert report submitted in this
`matter?
`A Yes, it is.
`
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`Q Okay. And if you could take a look at Exhibits 1
`through 11.
`A Yes.
`Q And are these Appendices 1 through 11 that were
`served along with your report?
`A It looks like they are. I mean, I haven't studied
`them, but it appears that they are, yes.
`Q Okay. Well, we may refer to them later today at
`various points, and feel free to --
`A Sure.
`Q -- study them if you want to at that point.
`And Exhibit 13, for the record, is that an
`accurate copy of your bio and CV?
`A I just lost it. Here it is. That appears to be,
`yes.
`Q Okay. And Exhibit 14, that's a list of the
`materials you considered in this case; right?
`A Yes. That appears to be, yes.
`Q And finally, Exhibit 15 is a list of your prior
`testimony; correct?
`A Yes.
`Q Thank you. So, Dr. Delp, when were you retained in
`this case?
`A Oh, I really don't know. It was probably sometime
`in 2015, but I don't remember when. I'd have to
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`I don't
`
`look at my records.
`Q But not 2016; right?
`A I don't know.
`Q Sorry. Before 2016?
`A Yes. It might have been very late 2015.
`remember.
`Q Got it. And who retained you?
`A I was retained by Apple.
`Q Okay. But you provided your report on behalf of
`all defendants; is that right?
`A That's correct.
`Q Okay. Thanks. And what were you asked to do in
`this case?
`A I was asked to examine the patent that the case is
`about and also examine various prior art
`references --
`Q Okay.
`A -- and form an opinion.
`Q And throughout the day, I just want to get a little
`better understanding of the opinions that you
`formed. So that will be sort of the topic of the
`day.
`
`Now, your report, Exhibit 12, is that accurate
`or is there anything you want to correct in the
`report today?
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`A No. There is -- I know there's at least one typo I
`found. But -- there might be more, but I'm not
`aware of anything else.
`Q Where is that typo?
`A The typo -- oh, God. I don't know if I can find
`it. It has to do where we're referencing one of
`the papers that the inventors published later. A
`couple times I referred to it as an SPIE paper.
`But then I think at one point, instead of saying
`SPIE, I think it might say QPIE or something like
`that. Or I don't remember what it -- but I'd have
`to look through it to find it. I should have
`circled it and maybe made a note, but I didn't.
`Q That's okay. But just --
`A And there might be some other typos in there too.
`Q Okay. But apart from minor typos, is there
`anything else you want to correct?
`A Not at this time.
`Q Okay. Thank you. And Exhibit 14, which is the
`list of materials you considered in this case.
`A Yes.
`Q That list is complete; right?
`A Yes, yes.
`That's what I looked at.
`Q Thanks. How did you prepare for today's depo?
`A I --
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`MR. MARANDO: Just object to the extent it
`calls for substance of communications with counsel.
`But you can give a high level.
`A I basically just reread my report.
`Q And did you meet with anyone?
`A I met with Chris for a day.
`Q Okay. And did you meet with anyone else?
`A I guess for about maybe 15 minutes Anne was on the
`phone call and then another 15 minutes Nick -- I
`don't remember Nick's last name.
`MR. MARANDO: Lee.
`THE WITNESS: Pardon me?
`MR. MARANDO: Nicholas Lee.
`Q Nicholas Lee.
`A Okay. He was on the phone call for about 15
`minutes.
`Q Got it. And --
`A And I met these gentlemen this morning, and we had
`some conversations outside.
`Q Good. And did you talk to any other expert
`witnesses in this case?
`A No.
`Q And is that true also before you submitted your
`report?
`A Yes.
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`Q Okay. And also after you submitted your report?
`A Yes.
`Q And, now, you submitted your report on what date?
`A Where's the signature at? Oh, it's on the back.
`It would be on the signature page. I guess it was
`November 30th.
`Q November 30th. Okay. And FastVDO has its own
`experts in this case. You're aware of that; right?
`A Yes. I'm assuming so.
`Q And on November 30th, you, of course, didn't have a
`chance to review their expert reports before you
`submitted this report?
`A That's correct, yes.
`Q Since November 30th, have you reviewed their expert
`reports?
`A I very quickly read Dr. Vardy, I believe is his
`name. By the way, I'm terrible on pronunciation of
`names.
`Q I am too.
`A So if you can help me out or we agree, it's fine.
`It's Dr. Vardy, I believe.
`Q Yeah. And there's a Dr. Goetzman also.
`familiar with him?
`A I know the name has come up. Yes. I'm familiar
`with him, and I think his name has come up in this
`
`Are you
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`case. I read it somewhere.
`Q Okay. And I'll represent to you that that is
`FastVDO's infringement expert.
`A Okay. And I knew he was representing FastVDO, but
`I --
`Q Sure, sure. And have you reviewed his report after
`submitting your report?
`A No.
`Q Okay. But you did review, as I understand it,
`FastVDO's infringement contentions. Right?
`A Yes. I think I cited those, yeah.
`Q Okay. And so you reviewed those before serving
`your report --
`A Yes.
`Q -- that's marked as Exhibit 12; correct?
`A That's correct.
`Q Okay.
`A And I believe that's listed in the documents.
`Q Yeah. And why did you review the infringement
`contentions?
`MR. MARANDO: Objection.
`To the extent that calls for you to reveal the
`substance of attorney-client communications, I'd
`instruct you not to answer.
`THE WITNESS: You're instructing me not to
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`answer?
`MR. MARANDO: To the extent counsel asked you
`to review those, yeah.
`Q And I'm not trying to get at attorney-client
`privileged communications. I just wanted a better
`understanding of the role that the infringement
`contentions played in your expert report.
`A I looked at them. They came up with a bunch of
`other documents that we looked at, so I reviewed
`them as part of -- before I prepared the report.
`Q Okay. And based on your review, you understand
`that FastVDO is asserting that the 42 -- strike
`that.
`
`The patent in this case, I'll refer to it
`throughout the day as the '482 patent.
`Is that
`fair?
`A That's fine.
`Q And you understand that FastVDO is asserting that
`the '482 patent claims are infringed by speech
`compression coding systems in GSM/AMR; right?
`A That is my understanding.
`Q And so FastVDO is also asserting that the '482
`claims are infringed by speech compression systems?
`A That's my understanding. I believe that's correct.
`Q And I believe in your report you opine that the
`
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`'482 patent relates to image data compression.
`Right?
`It certainly talks about it.
`A It does, yes.
`Q I think that -- if we could flip through your
`report, you describe this in several areas. So
`here on page 244 --
`THE WITNESS: Excuse me. If I leave this
`open, it might lay on your microphone.
`Is that
`going to be a problem?
`(Discussion held off the record.)
`A I'm sorry. What page?
`Q 244.
`A Okay.
`Q And we can --
`A Okay. This is going to be a little unwieldy, but
`okay. Go ahead.
`Q So here in paragraph 529 --
`A 529. Okay.
`Q -- you state that you have reviewed the '482
`patent; right?
`A That's what it says.
`Q And that, based on that review, you believe that
`the "inventors (Meany and Martens) invented an
`error resilient method and apparatus for entropy
`encoding still image data"; right?
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`A That's what it says, yes.
`Q And just flipping through this a bit, in Section
`541 -- strike that -- paragraph 541, and here
`you --
`A Wait a minute. Let me find it.
`Q Strike that.
`A You want me to go to paragraph --
`Q Yeah. So paragraph 541.
`A On page 248?
`Q Correct, yeah. And here you opine again that '482
`is directed to image compression. Do you see that?
`A I see that, yes.
`Q And you believe that image compression is different
`from speech compression?
`A It has different components, yes.
`Q I think you discussed maybe some of those different
`components in your report. It may be helpful to
`jump to those sections. While we get there, what
`do you mean by "It has different components"?
`A Well, number one, speech is different than images.
`And generally the speech -- some of the approaches
`taken in speech compression are not the same ones
`used in image compression, particularly things like
`analysis-synthesis approaches. Although
`analysis-synthesis approaches are also done in
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`image compression.
`Q And you do understand that, again, FastVDO is
`asserting that the '482 patent claims are met by
`speech compression systems?
`A That is my understanding.
`Q And do you agree with that contention?
`A Do I agree with that contention?
`Q Yes.
`A I haven't examined that in light of the accused
`products or anything like that.
`Q So if we flip back to paragraph 70, I wanted to --
`A Paragraph 70?
`Q Yes.
`A Okay. What page number is that?
`Q That's on 28.
`A Okay. I'm there.
`Q Okay. And I believe in this part of your report,
`among other parts, you describe some of the
`differences between image compression versus speech
`compression. Is that right?
`A I do.
`Q And so here it's your opinion that image and speech
`compression raise different issues?
`A Well, I say that in that sentence, yes.
`Q And you also state that -- I just want to get a
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`better understanding of the opinions. You also
`state that techniques that are applicable to image
`compression are not applicable to speech
`compression?
`A Many of the techniques, yes.
`Q Like what techniques?
`A Well, I think I list them here.
`Q And can you identify that list of techniques that
`are applicable to image compression that are not
`applicable to speech compression.
`A Well, I mean, the main difference I talk about is
`the fact that there's differences in tolerances
`with respect to delay and distortion and different
`factors related to human perception. And that,
`then, impacts how you would then do the type of
`compression you're doing, such as using a CELP
`coder for speech. People don't use CELP approaches
`for images.
`Q Are there any other examples you can think of?
`A Well, I think that's a very big example, the fact
`that most of speech compression these days are
`going towards using CELP-type approaches, and
`that's not where image compression is going.
`Q Are there other examples you can think of of the
`different properties exhibited by speech
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`compression and image compression?
`A Well, I think that, again, the human perception
`models are different. People are using human
`perception models in both speech, image, and even
`video coding, and, of course, the perception models
`are different. Your hearing perception model is
`going to be different than a visual perception
`model.
`Q And it says here that, in your opinion, "Applying
`image compression schemes is not as simple as
`compressing speech"; is that right?
`A I'm sorry. Where do I say that? Is that on
`page 29?
`I don't --
`Q 71.
`A Paragraph 71?
`Q Yeah.
`A Uh-huh. Yeah. I say it in the first sentence.
`Q Okay. So you do believe that applying image
`compression schemes is not as simple as applying
`speech compression schemes?
`A That's what I say here.
`Q And is that what you believe?
`A Yes.
`Q And why is that?
`A Because I think imagery data can be a lot more
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`complicated, and -- I'll just leave it at that.
`Image data can be a lot more complicated. There's
`a lot more of it. It comes usually at a higher
`rate, particularly if you're trying to do any type
`of real-time processing.
`Q And I believe you just referenced the CELP encoder.
`Is that right?
`A I did.
`Q And CELP encoders are speech compression encoders;
`right?
`A Yes.
`Q And I think you state here also that you don't
`believe that anyone would compress image data
`through the speech compression encoder.
`Right?
`A Through CELP, yes, I believe that.
`Q And then in paragraph 70, you state that "What is
`disclosed and claimed in the '482 patent is a
`generic encoding scheme"; right?
`A In paragraph 70?
`Q Yes.
`A Yeah. That's what it says there, yes.
`correct.
`Q And I believe you stated earlier that's a generic
`image compression encoding scheme; right?
`A Yes. They talk about image compression in the
`
`That's
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`patent, yes.
`Q So you believe that the inventors of the '482
`patent at the time were concerned with problems
`that existed in image compression?
`A I believe that's what the patent says.
`Q And that's different from speech compression?
`A It has differences, yes.
`Q And the problem they were trying to solve was an
`image compression problem therefore?
`A I mean, there was -- that was one of the problems
`discussed in the patent, yes.
`Q But not a speech compression problem?
`A I don't believe speech compression is talked about
`in the patent at all.
`Q Okay. I want to get -- do an overview of the prior
`art that you reviewed and opined on. We could even
`look through your table of contents on pages i and
`ii.
`A Okay.
`Q Bear with me one second. So -- actually, if we
`could turn to Section Roman numeral VIII.
`A I'm sorry. What page?
`Q Just the next page over, iii, I guess.
`A Okay.
`
`MR. MARANDO: Is that Roman numeral iii?
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`THE WITNESS: Iii.
`MR. MARANDO: No. I'm sorry.
`THE WITNESS: It's Section VIII, but it's page
`Roman numeral iii.
`MR. MARANDO: Gotcha.
`A Is that correct? Is that what you're --
`Q Yeah. So in the table of contents and in your
`report, it's Section Roman numeral VIII.
`And that
`describes the -- well, the title is "The Asserted
`Claims of the '482 Patent are Anticipated and/or
`Obvious in View of the Prior Art"; right?
`A That's what this section says, yes.
`Q And that's what the section is about; right?
`A I believe so.
`I mean, yes, that's what it's about.
`Q And here there are eight prior art references that
`you opine invalidate the '482 patent claims; right?
`A That's correct.
`Q Do you intend on opining on all of these eight
`references at trial?
`MR. MARANDO: Object to the extent that calls
`for substance of attorney-client communications.
`A I have no idea. Do your experts know what they're
`going to opine on at trial?
`Q They may.
`But there's no current plan to limit the
`scope of Section Roman numeral VIII at trial;
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`right?
`A Not at this time.
`Q Okay. And I believe one item listed in your list
`of materials considered is an IPR that was filed by
`Apple. Is that right?
`A Yeah. I think I cited to it, yeah.
`Q Sure. And maybe even another IPR that was filed by
`Samsung?
`I think I mentioned it, and I think
`A I believe so.
`it's in my list of items considered.
`Q And do you recall whether those IPRs -- strike
`that.
`
`What role did the IPRs play in your analysis?
`A Whatever I say in the report. I mean, I read them
`and -- I read them and I did opine to a certain
`extent in the report.
`Q What do you mean you opined to a certain extent in
`the report?
`A I mentioned the IPRs in the report.
`Q Okay. And do you recall which prior art references
`were asserted in those petitions for IPR?
`A Again, they're discussed in here. I think it's
`Kato and -- oh, I can't pronounce the other one.
`They're listed in here. One of them is Kato, and
`the other one is -- is it Seshadri -- I can't say
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`it -- I think is the other one. I think there
`might have been another one. Again, I'd have to
`look at the section of the report that I think
`mentions that.
`Q But the eight prior art references that you opine
`on in your report -- strike that.
`All eight prior art references that you opine
`on in your report are not included in the petitions
`for IPR, though; right?
`MR. MARANDO: Objection. Vague.
`A I don't know.
`I don't remember. I mean, I read
`the documents. I don't remember right now. I
`remember those ones -- those two that I mentioned
`in the report. I don't know if the documents say
`anything else, the IPR documents. It's been --
`there's too many documents for me to remember.
`Q Well, maybe we could flip to page 96 of your
`report, and I think you mention it there.
`A Okay.
`Q Are you there?
`A Yeah.
`Q Does this help refresh your recollection as to
`which prior art references were asserted in the
`petition for IPR?
`A Yeah. They're listed here. They're listed here.
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`Q And so which references are listed?
`Fazel '622
`A Kato is mentioned. Fazel is mentioned.
`Am I
`is mentioned.
`What else? Kato and Wei.
`Whatever
`missing one? I'm missing one, I think.
`it says here.
`I want to make sure I'm not missing
`one. I think those are all that I list.
`Again,
`they're listed here.
`Q And so you just identified a few prior art
`references that were part of the petitions for IPR;
`right?
`A I don't remember what all was listed in the IPR as
`far as prior art references. I'd have to look at
`the IPR documents again.
`Q Okay. Is there any reason to believe that this
`portion of your report that describes the IPRs is
`inaccurate?
`A I don't have any reason to believe that it's
`inaccurate.
`Q Okay. And so you -- strike that.
`In your report you opine on additional
`references that aren't mentioned in the IPRs;
`right?
`A I don't know exactly all what was in the IPR
`documents. I opined -- I opined on different -- on
`references other than the ones that are listed
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`here. That's all I can really testify to.
`Q And there's currently no plans to limit your trial
`testimony to only those references that are listed
`in the IPR; right?
`MR. MARANDO: Object.
`To the extent that calls for privileged
`communications, I instruct you not to answer. If
`you have an answer outside of discussions with
`counsel, you can answer.
`Q I'm not asking for privileged communications. I
`just want to know if you --
`A I don't know.
`Q Okay. You mentioned a moment ago that you briefly
`reviewed Dr. Vardy's rebuttal report?
`A Yes.
`Q When did you review that report?
`A I don't know.
`It was probably sometime during the
`Christmas break, I think. I don't remember
`exactly.
`Q I'd like to flip to -- sorry for all the jumping
`around -- but page 91 of your report.
`A Okay.
`Q And Section C here that starts on this page, this
`describes your opinions as to the proper priority
`date for the patent; right?
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`A I talk about it here, yes.
`Q And it's your opinion that the patent is entitled
`to a priority date no earlier than April 17, 1996;
`right?
`A That's what I say, yes.
`Q
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`Q Okay. Here on page 53, paragraph 122, you do state
`that Yuen was publicly available no later than
`mid-July 1995, though; right?
`A That's correct.
`That's what it says.
`Q And so is that your opinion or was that a legal
`opinion?
`A This was some information that we received, I
`believe -- it's my opinion, but it was some
`information we received, I think, from the Simon
`Fraser Library or something like that.
`Q But it's not -- it wasn't -- strike that.
`But was this information -- strike that.
`The date of public availability, namely no
`later than mid-July 1995, was that provided to you
`by counsel or does that reflect your opinion?
`A Well, I mean, I think the information was received
`when we got the reference. And, again, my memory
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`is not completely clear here. This reference, I
`think, came from the Simon Fraser Engineering
`Library.
`And I think we got the information when
`it was available from the library, and that was
`part of the information that came in with the
`documents. I don't know who gave it to me.
`Q But is the mid-July 1995 date a legal conclusion,
`then, or is it your opinion?
`A It's my opinion based on information we received
`when we got the documents.
`Q And you mentioned information that you received
`from the Simon Fraser Library; right?
`A I think so. I'd have to review all that again.
`Q When was the Yuen reference publicly available?
`A The Yuen reference?
`Q Yuen. Sorry.
`A Okay. Again, it just says what I say in the
`report, paper copy was available no later than mid
`1995. That's what I say in my report.
`And it was
`also based on this declaration of Penny Swanson,
`and I guess she is the -- information we got from
`the Simon Fraser University library's office. And
`I remember looking -- well, the declaration is one
`of the things I looked at. It's Exhibit 10. I
`can't remember what it says right now.
`That was so
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`long ago.
`(Deposition Exhibit 17 marked for
`identification.)
`Q I'd like to introduce as Exhibit 16, I think --
`MR. MIRZAIE: Is it?
`THE REPORTER: 17.
`Q Exhibit 17. Sorry. Well, before we do that, I'll
`just introduce for the record Exhibit 16, then,
`which is a copy of the '482 patent.
`A Okay. Okay.
`Q And then Exhibit 17 is Exhibit 10 from your report,
`I think, that we just referenced, which is the
`declaration of Penny Swanson. Is that right?
`A Yeah. I remember seeing this. It's a nice place.
`Q So is this the declaration that your opinion
`regarding the date of public availability of Yuen
`is based on?
`A This is the one I cite in the report, yes.
`Q Is there any other basis that you have for your
`date of public availability for the Yuen reference?
`A I believe no.
`This is the one I used, yes. But, I
`mean, there was also the date on the front
`copyright date of 1994.
`Q Does the front copyright date tell you when that
`reference was publicly available?
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`A Well, it has to be sometime after that.
`Q Okay. And here Penny Swanson states that the Yuen
`thesis would have been available within a few days
`of the creation of the item record, though; right?
`A I'm sorry. So where are you reading? Which --
`Q Paragraph 4.
`A Paragraph 4. Okay. Yes. That's what it says in
`the first sentence.
`Q And in paragraph 3, she states that the item record
`for the title was not created -- strike that.
`In paragraph 3, she says the item record for
`the title was created on July 17, 1995; right?
`A That's what it says, yes.
`Q So then the earliest the Yuen thesis would be
`available is within a few days of July 17, 1995;
`right? According to Penny Swanson.
`A That's what it says here.
`Q So not 1994.
`A According to what she said here. Now, who knows
`whether Yuen published it somewhere also.
`Q Do you have any information that Yuen also
`published it somewhere else?
`A This is all the information I have at this time.
`Q So in paragraph 4, Penny Swanson states that "Based
`on my experience in the Library Cataloging
`
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`Division, it is my understanding that the Yuen
`thesis would be made available within a few days of
`the creation of the item record"; right?
`A That's what the sentence says.
`Q And do you know what understanding that's based on?
`A I'm sorry. I don't understand the question.
`Q She refers to "my understanding." Do you see that?
`A Yes.
`Q And do you see what that is based on?
`A I'm assuming it's based on her experience as
`being -- I'm not sure. She is the head of the
`catalog division of the Simon Fraser University
`so -- University Library.
`Q And do you know how the Yuen thesis was cataloged,
`if at all, at the Simon Fraser University?
`
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