UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________________________________
`APPLE INC.,
` Petitioner,
`
`-v- Case No.:
` IPR2016-01561
` U.S. Patent No. 6,233,181
`
`LIMESTONE MEMORY SYSTEMS LLC,
` Patent Owner.
`_________________________________________________
` Videotaped Deposition Of Expert:
` SUNIL P. KHATRI, Ph.D.
`
` Friday, July 28, 2017
` 9:00 a.m. - 2:03 p.m.
`
`HELD: Hampton Inn - Rome
` 1352 Floyd Avenue
` Rome, New York
`BEFORE: Brenda J. O'Connor-Marello, CSR,
` Certified Shorthand Reporter and
` Notary Public in and for the
` State of New York.
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`Apple – Ex. 1019
`Apple Inc., Petitioner
`1
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________________________________
`APPLE INC.,
` Petitioner,
`
`-v- Case No.:
` IPR2016-01561
` U.S. Patent No. 6,233,181
`
`LIMESTONE MEMORY SYSTEMS LLC,
` Patent Owner.
`_________________________________________________
` Videotaped Deposition Of Expert:
` SUNIL P. KHATRI, Ph.D.
`
` Friday, July 28, 2017
` 9:00 a.m. - 2:03 p.m.
`
`HELD: Hampton Inn - Rome
` 1352 Floyd Avenue
` Rome, New York
`BEFORE: Brenda J. O'Connor-Marello, CSR,
` Certified Shorthand Reporter and
` Notary Public in and for the
` State of New York.
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`Apple Inc., Petitioner
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`2
`
`A P P E A R A N C E S:
`APPEARING FOR THE PLAINTIFF(S):
` ANDREWS KURTH KENYON LLP
` 1350 I Street, NW, Suite 1100
` Washington, DC 20005
` 202-662-3038
` BY: JOHN R. HUTCHINS, ESQ.
` jhutchis@andrewskurthkenyon.com
`
`APPEARING FOR THE DEFENDANT(S):
` FITCH, EVEN, TABIN & FLANNERY LLP
` 120 South LaSalle Street, Suite 1600
` Chicago, Illinois 60603
` 312-577-7000
` BY: ERIC L. BROXTERMAN, ESQ.
` ebroxterman@fitcheven.com
`
`Also Present:
` Edward Roy - Videographer
`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`3
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` VIDEOGRAPHER: Here begins tape
`number 1 in the videotaped deposition
`of Sunil P. Khatri in the matter of
`Apple, Inc., Petitioner, versus
`Limestone Memory Systems, LLC, Patent
`Owner, in the United States Patent and
`Trademark Office before the Patent
`Trial and Appeal Board, Case Number
`IPR2016-01561.
` Today's date is July 28, 2017.
`The time is now approximately
`9:00 a.m.
` The videographer today is Edward
`Roy, representing Planet Depos.
` This video deposition is taking
`place at the Hampton Inn, 1352 Floyd
`Avenue, Rome, New York.
` Will counsel please identify
`themselves and say who they represent.
` MR. HUTCHINS: John Hutchins
`from Andrews Kurth Kenyon,
`representing Apple.
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`4
`
` MR. BROXTERMAN: Eric Broxterman
`from Fitch, Even, Tabin & Flannery,
`representing the witness, Dr. Khatri,
` and Limestone Memory Systems.
` VIDEOGRAPHER: The court
` reporter today is Brenda Marello,
` representing Planet Depos.
` Would the reporter please swear
` in the witness.
` SUNIL P. KHATRI, Ph.D.,
`called as the witness, hereinbefore named, being
`first duly cautioned and sworn or affirmed by
`Brenda J. O'Connor-Marello, a Certified
`Shorthand Reporter and Notary Public in and for
`the State of New York, Qualified in Saratoga
`County, herein to tell the truth, the whole
`truth, and nothing but the truth, was examined
`and testified as follows:
` EXAMINATION
`BY MR. HUTCHINS:
`Q. Before we start -- Dr. Khatri? Or
` Mr. Khatri? Professor Khatri? How would
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`Apple Inc., Petitioner
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`5
`
` you like me to refer to you today?
`A. Dr. Khatri is good. Professor. Either
` way.
`Q. Very good.
` Dr. Khatri, could you tell us who
` you are and where you work currently?
`A. My name is Sunil Khatri. I work at Texas
` A&M University. I'm a professor of
` electrical and computer engineering.
`Q. And, Dr. Khatri, am I correct that you
` submitted a declaration in an IPR petition
` between Apple and Limestone?
`A. That's correct.
`Q. And I'll put in front of you what's been
` marked as Exhibit 2004 and ask you: Is
` that the declaration that you submitted in
` the IPR?
`A. Let's see. I just want to make sure it
` has -- is this right?
` MR. BROXTERMAN: I believe you
` have the wrong one. This is the
` declaration. I believe you handed him
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`6
`
` the petition.
` MR. HUTCHINS: I handed you
` something that was marked nothing.
`A. Oh, Okay. Now, this does look right. The
` number of pages. And it has my signature
` at the back, yes.
`Q. Okay. Let me start over because I
` inadvertently grabbed the wrong paper.
`A. Okay.
`Q. So it wasn't -- wasn't fair on my part.
` Sir, you have in front of you
` what's been previously marked as
` Exhibit 2004. And my question is: Is
` that the declaration that you submitted in
` the IPR?
`A. It does appear to be, yes.
`Q. And at the back, is your signature dated
` May 9th, 2017? Is that correct?
`A. That's correct. Yes.
`Q. Now, when were you first approached about
` working on the IPR?
`A. I wouldn't remember that so precisely,
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`7
`
` but -- no. I mean, it was definitely this
` year, but, you know -- I mean, I'm not
` prepared to know what date it was,
` something.
`Q. Do you know if it was in April of this
` year?
`A. It could have been -- that's the time
` frame, roughly. You know, it could have
` been March, April, something like that.
` But I just don't know. I don't have any
` of my paperwork that, you know, that has
` that date on it right now.
`Q. And how were you first contacted?
`A. How was I contacted? So let's see.
` So, you know, there's this --
` there's a firm that helps attorneys look
` for experts. And I was contacted by them.
` And then through that, there were several
` interviews with the folks at Fitch, Even.
` And that's sort of how the whole process
` began.
`Q. And this expert -- the firm you referred
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`8
`
` to, is it okay if I call it an expert
` firm?
`A. Fair.
`Q. Okay. This expert firm that reached out
` to you, is that one with whom you had had
` contact before?
`A. Yes.
`Q. Do you have an ongoing relationship with
` them to find you expert consulting work?
`A. Yes. But I -- you know, I mean, I have an
` ongoing relationship, but my work is
` sparse because I generally -- I mean, you
` know, that's one of the things I talked to
` my attorneys about, is I generally try to
` keep my cases to a minimum, just because I
` want to make sure I get -- you know, give
` good attention to whatever I'm working on.
`Q. And by "sparse," how many cases in a year
` would you generally accept?
`A. Maybe not even one, perhaps. I don't
` know. Yeah. But on an average, maybe
` half a year or something, half per year.
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`9
`
`Q. And at current, is this the only case for
` which you're doing expert consulting?
`A. That's correct.
`Q. And is that the case for the entirety of
` 2017?
`A. So, yeah, this is the only case that's,
` like, going on right now for 2017.
`Q. And so you mentioned several interviews
` with folks at the Fitch, Even law firm.
` Were those over the telephone?
`A. Yes.
`Q. Were any in person?
`A. No.
`Q. And how many interviews did you have
` before you were retained?
`A. Again, I don't know, but several. Yeah.
`Q. Four or five? Is that what you mean by
` several? Or more or less?
`A. Yeah. I'd say -- I don't have a
` recollection of these numbers, you know,
` but I do remember that there were several
` calls. Four or five sounds right. It
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`10
`
` could be a little more even, yeah.
`Q. And do you recollect over what period of
` time these calls occurred?
`A. As in?
`Q. As in are there four or five calls, give
` or take, over the course of three days,
` over the course of two weeks? Over what
` period of time?
`A. Oh, like that. Several weeks, I think,
` yeah.
` I just don't remember these things.
` I don't make notes of stuff like that.
`Q. And do you remember with whom you spoke?
`A. There were many attorneys. And I don't
` even -- you know, at the time I didn't
` even know them, but for -- so I don't
` recall names, you know. But I do remember
` Eric was one of them. But then there was
` others as well, and I don't know who else.
`Q. And by Eric, you're referring to your
` counsel here today?
`A. That's correct. Eric Broxterman.
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`11
`
`Q. Now, what, if anything, was described to
` you during those interviews about what
` your assignment would be for this work?
`A. You know, I think that the -- that the
` patent in question -- I'm trying to
` remember -- was -- was provided, you know.
` And then they asked questions about it.
` They didn't say anything about -- anything
` more, right. They just asked questions.
` And it was a more general interview
` as well. They just say, like, you know,
` "What do you know about X or Y? Or, you
` know, things like that. They even talked
` about general things --
` MR. BROXTERMAN: I'm going to
` caution you not to describe the
` substance of our calls. You can talk
` factual, the amount of time we talked
` and other instances, but our
` communications that we had are
` confidential and privileged.
` THE WITNESS: Okay.
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`12
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` MR. BROXTERMAN: So you can
` answer the question to the extent that
` you can not talk about our
` communications.
` THE WITNESS: Certainly.
`BY MR. HUTCHINS:
`Q. Did you -- did you have -- so you were
` provided the patent; is that correct?
`A. I believe so, yeah.
`Q. And by "the patent," we're talking about
` the 181 patent that's at issue in the IPR?
`A. Again, I believe so. Again, like I said,
` my recollection is vague, right. This is,
` you know, a while back. And I mean, I
` don't -- again, I don't have -- you know,
` I didn't consider this to be something
` important enough to remember; so, you
` know, I have very little recollection of
` the fine details of whatever happened.
`Q. Do you remember any other materials being
` provided to you prior to your being
` retained?
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`13
`
`A. No recollection. There was questions that
` were asked, but -- yeah.
`Q. Did you have an understanding of who your
` client was going to be?
`A. I don't think so.
`Q. Do you have an understanding now of who
` your client is?
`A. I don't know -- I mean -- so I don't know
` exactly if I have a client as such. I
` mean, you know -- so again, these are sort
` of things about which are legal and stuff;
` so I don't really -- you know, I'm not the
` best person to answer these questions.
` I know that I've -- you know, I
` mean, I know how -- that I've signed
` contract paperwork and stuff; so I don't
` know exactly who the client is and, you
` know, and questions like that.
`Q. Do you have an understanding of who the
` party is for whom you provided your expert
` report?
`A. The party as in the two party -- one among
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`14
`
` the two parties that are being -- that
` are -- that are in the lawsuit; correct?
`Q. Correct.
`A. Yes.
`Q. Okay. And who's that?
`A. That's Limestone Memory.
`Q. And had you had any familiarity with
` Limestone Memory prior to being approached
` about this case?
`A. No.
`Q. Did you know -- do you know now what
` Limestone Memory's business is?
`A. I don't actually, you know. I mean, to
` me, it's just -- it's just a company, I
` guess, that -- that, you know, hired --
` that's in this lawsuit. That's -- that's
` the extent of my knowledge about
` Limestone.
`Q. Now, prior to being retained, did you have
` an understanding that you would be
` defending the validity of the 181 patent
` owned by Limestone?
`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`15
`
`A. I mean, I -- prior to being retained.
` So prior to being retained, all I
` knew was there was an IPR, you know.
` That's kind of all I knew. That there was
` an IPR in -- you know, ongoing.
`Q. And did you have an understanding of which
` side of the IPR Limestone was on?
`A. Yes. Yeah. So that, you know, that the
` patent was owned by Limestone. I knew
` that much.
`Q. And so you had an understanding that
` Limestone was defending its patent against
` an attack by Apple?
`A. On some IPR, yes.
`Q. And do you have a recollection of why
` there were several interviews prior to you
` being retained?
`A. I have no reason to -- I mean, you know, I
` mean -- I had no reason to wonder about
` that, because, you know, maybe they wanted
` to make sure that I was suitable for the
` task. I don't know. It would just be a
`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`16
`
` speculation on my part.
`Q. During that time, did you undertake any
` research into the substance of the issues
` at issue here today in the IPR?
`A. No. So usually I won't do any research
` until, you know, I sign on.
`Q. So if I've got it correct, the --
` basically -- prior to being retained, the
` only thing you did, other than talk to
` folks at Fitch, Even over the phone a
` couple, few, several times, was to read
` the 181 patent?
`A. I think so. I think it was the 181
` patent. Again, I don't know what all, you
` know, was that I've read. But -- but it
` was an interview. I mean, that's just
` all -- you know. And to me, you know,
` this is material familiar to me; so it's
` like you can interview me and it's, like,
` I'll talk to you, right. So it's not like
` I'll remember what all I prepared for the
` interview and stuff like that because it's
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`17
`
` more of I'm just talking to someone about
` my expertise; so...
`Q. Now, was this the first time that you'd
` had communications with the Fitch, Even
` firm?
`A. I believe, yes.
`Q. So to your recollection, you've never done
` work for that law firm previously?
`A. That's correct.
`Q. Now, there came a point in time where you
` were retained; is that correct?
`A. Yes.
`Q. And are you being paid on an hourly basis?
`A. That's right.
`Q. And what's your hourly rate?
`A. My hourly rate is $450 an hour.
`Q. And is that what you've been charging for
` your work on this case?
`A. That's correct.
`Q. And am I correct that you began charging
` that only after you were retained;
` correct?
`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`18
`
`A. Correct.
`Q. So after you were retained, were you
` provided additional materials?
` MR. BROXTERMAN: You can answer
` that question yes or no.
` THE WITNESS: Pardon me?
`A. Yes.
` MR. BROXTERMAN: You can answer
` that question yes or no.
`BY MR. HUTCHINS:
`Q. And what materials additionally were you
` provided?
`A. I mean, material that was relevant to the
` case, I guess.
`Q. And do you have a recollection of what any
` of those were?
`A. You know, the other patents and such, you
` know, like Sukegawa and all the -- you
` know.
`Q. So you were provided the prior art, for
` instance, that was mentioned in the
` petition?
`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`19
`
`A. The relevant material that was part of the
` case, yes.
`Q. Do you recollect being provided anything
` else?
`A. Anything else is just too broad to answer.
` I mean...
`Q. Other than prior IR patents, do you
` recollect being provided any materials?
`A. So whatever -- you know, like -- you know,
` I mean, I have listed here the things that
` I've, you know, used in coming up with my
` report -- in the report. So for sure I
` had those.
`Q. Okay. And is it your understanding that
` all the materials listed in the "Materials
` considered" section of your report were
` materials you were provided by Fitch,
` Even?
`A. I'll have a look at the materials, of
` course.
`Q. Oh, of course.
` MR. BROXTERMAN: Do you have a
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`20
`
` copy -- another copy of his
` declaration -- for myself?
` MR. HUTCHINS: Of course.
` MR. BROXTERMAN: Thank you.
` Thank you.
`A. Yeah. So I'm looking at page 9 where it
` says "Materials considered." And all of
` these are some exhibit or another. And
` yeah. These -- let's see.
` I think these are all the things
` that I was -- that I have considered, yes.
`Q. And so am I correct that the bullet
` pointed materials here were all provided
` to you by Fitch, Even?
`A. Correct. Yes.
`Q. Now, prior to submitting your report, did
` you do any independent research?
`A. I did, yes. So those --
`Q. What did you do?
`A. That research as listed in the, you know,
` the exhibits that were sent along with --
` any -- to the extent there was additional
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`21
`
` research I did independently, it is listed
` in the exhibits -- the new exhibits that
` were sent, along with my -- my
` declaration. So these are exhibits
` starting with 200-something, you know.
`Q. Were there any --
` Are there any materials listed in
` your -- in your report that you considered
` that you uncovered, as opposed to that
` were provided to you by counsel?
`A. What is listed -- so there's two things,
` right. There's materials on page 9 --
`Q. Yes, sir.
`A. -- which are materials that, you know, I
` used to come up with the report.
` Now, there's also -- along with the
` report, there were additional materials
` that were submitted. You understand what
` I'm saying? Along with the report, there
` were exhibits which I think were
` labeled -- exhibits numbers were
` 200-something. 2000 and such something.
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`22
`
` So those were also materials that were
` part of what I considered. And there may
` be -- there might have been some in there
` that were independently researched by me.
`Q. And is there anything in particular that
` you're thinking of?
`A. If you give me the list of the 2000
` materials, I can tell you.
`Q. Sure. The list appears in various places,
` but I'm just going to provide you a list
` of exhibits from what's called the patent
` owner's response, which was a paper in the
` IPR that I'll represent to you was filed
` by Limestone's counsel. But I'm just
` providing it to you because it has an
` exhibit list at the beginning.
`A. And that's the 2000 prefix --
`Q. Correct.
`A. -- I guess.
`Q. So if you wanted to look through that and
` let me know which --
`A. Because some of these were overlapped, I
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`
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`23
`
` think.
` Let's see.
` Yeah. Now, you know, there are
` several in the 2000 list which I either
` directed the attorneys to look for or I
` might have researched on my own, and I
` don't have a recollection of the split
` there. But -- but there's several here
` that could be in that list, in that, you
` know. So I had directed them to do a
` patent search, for example. So those are
` things that, you know, I didn't do, but I
` asked them look for a patent search for
` these terms and such, you know, that's...
`Q. And the patent search you're referring to,
` that's Exhibits 2014, 2015 and 2016; is
` that correct?
`A. I think that's them, yes.
`Q. Were there other exhibits here that fall
` under that category of things that you had
` asked the lawyers to prepare?
`A. I don't recall. But I think -- you know,
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`
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`09:21:23
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`24
`
` either I would have done it myself and
` sent them something, saying "Here's
` something you should look at," or it would
` have been, you know, like "You all should
` look into this." But... "You all should
` look into this and get me the document."
` Because, for example, like a patent
` search, I don't have the -- I don't think,
` at least, I have the -- you know, you
` probably need a special account to do a
` patent search or something. So that one I
` don't think I could do. But I've made
` several comments and suggestions that,
` "You should do a patent search of this
` nature." And then they did that homework,
` in some sense, for me.
`Q. And -- and -- so other than those three
` patent searches we've discussed, are there
` other exhibits here that -- that you
` arranged to have obtained --
`A. Like I said, there are, but I just don't
` know which ones, right. I mean, I either
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`
`
`09:22:09
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`25
`
` asked -- I either did them myself or I
` asked them to look them up, but I don't
` know which one was in which category.
`Q. Right. Setting aside whether you did it
` yourself or whether you asked counsel to
` do it, do you know which exhibits fall
` into one of those two categories?
`A. I see. There would be several, yes.
`Q. And which are those?
` MR. BROXTERMAN: I'm just trying
` to find out what -- are you trying to
` find out the communications we had?
` Because we're getting a little bit of
` a close line of the privilege. And
` so --
` MR. HUTCHINS: I'm trying to
` find -- I'm just trying to find out
` what he -- what he did versus what was
` simply provided to him.
` So my understanding is that
` there were certain exhibits that were
` generated at his impetus, for lack of
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`
`
`09:23:06
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`09:23:15
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`26
`
` a better word. And I'm trying to get
` an identification of what materials
` those were.
`BY MR. HUTCHINS:
`Q. Do you understand?
`A. Yeah. I understand.
`Q. Okay. Do you know which -- so other than
` the three we've talked about, do you know
` which other materials those are here?
`A. Let's see. I'll go over the 2000s.
` You know, 2006 I had asked to see,
` you know, like look into the textbook and
` see if you find material there. And
` then -- or maybe I had found it myself.
` Again, it's one of those two things.
` MR. BROXTERMAN: Sir, I'm just
` going to caution you. You can
` identify exhibits. Like what I'm
` going to caution: Don't talk about
` any reasons or any communications we
` had regarding any exhibits.
` THE WITNESS: I see.
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`
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`09:23:57
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`Transcript of Sunil P. Khatri, Ph.D.
`Conducted on July 28, 2017
`
`27
`
` MR. BROXTERMAN: Okay.
` THE WITNESS: Okay.
`A. So 2006, 2008, 9, 10, 11. Possibly 12 and
` 13.
`Q. And --
`A. So probably you're wondering what it looks
` like. It's more stuff the stuff on
` page 7 -- 6 of this -- of this patent
` owner's response.
`Q. And other than what we just went through,
` were there any other materials that you
` uncovered yourself as part of your work in
` this case?
`A. I don't know how you answer -- how I
` would -- you know. If there was relevant
` material I uncovered, it would be in the
` report.
`Q. Do
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