Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`1
`
`BEFORE THE PA TENT TRIAL AND APPEAL BOARD
`
`LG ELECTRONICS, INC., and
`LG ELECTRONICS U.S.A., INC.,
`Petitioner
`v.
`TOSHIBA SAMSUNG STORAGE
`TECHNOLOGY KOREA CORPORATION,
`Patent Owner
`
`Case IPR2015-01653
`Patent RE43,I06
`
`Deposition of MICHAEL STEPHEN LEBBY, PH.D.
`Arlington, Virginia
`Thursday, June 30, 2016
`9:03 a.m.
`Job No. 115907
`Pages 1 - 212
`Reported by: Karen Young
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`Deposition of l\1ICHAEL STEPHEN LEBBY, PH.D.,
`held at the offices of:
`NIXON & V ANDERHYE P.C.
`901 North Glebe Road, I Ith Floor
`Arlington, Virginia 22203-1808
`(703) 816-4000
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`1 (Pages 1 to 4)
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`3
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`APPEARANCES
`ON BEHALF OF THE PETITIONER:
`BRIAN A. TOLLEFSON, ESQU1RE
`SOUMYA P. PANDA, ESQU1RE
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`607 14th Street, Northwest, Suite 800
`Washington, D.C. 20005
`(202) 783-6040
`
`ON BEHALF OF THE PATENT OWNER:
`JOSEPH A. RHOA, ESQU1RE
`NIXON & VANDERHYEP.C.
`901 North Glebe Road, 11th Floor
`Arlington, Virginia 22203-1808
`(703) 816-4000
`
`ALSO PRESENT:
`Justin Burnam, Nixon V anderhye
`
`4
`
`CONTENTS
`EXAMINATION OF MICHAEL STEPHEN LEBBY, PH.D. PAGE
`By Mr. Tollefson......................... 5
`By Mr. Rhoa .............................. 206
`By Mr. Tollefson ......................... 207
`
`EXHIBITS
`(No new exhibits were marked.)
`PREVIOUSLY MARKED
`Exhibit 1001 '106 reissued patent by Yoo et al 147
`Exhibit 1002 Document
`Exhibit 2002 Declaration
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`180
`5
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`LG Electronics, Inc. et al.
`EXHIBIT 1021
`IPR Petition for
`p
`U.S. at en No. RE43 106
`
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`5
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` P R O C E E D I N G S
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` MICHAEL STEPHEN LEBBY, PH.D.,
`
` having been duly sworn, was examined as follows:
`
` - - -
`
` EXAMINATION BY COUNSEL FOR THE PETITIONER
`
` BY MR. TOLLEFSON:
`
` Q Good morning.
`
` A Morning.
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` Q Could you please state your full name for
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` the record?
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` A Michael Stephen Lebby. Stephen with a
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` P-H.
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` Q And could you please state your home
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` address for the record?
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` A 680 Mission Street, 24F, San Francisco,
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` CA 94105.
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` Q I'm handing you what's previously been
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` marked Exhibit 2002 to IPR2015-01653. Do you
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` recognize that document, Dr. Lebby?
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`2 (Pages 5 to 8)
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` routine. I'm going to refresh your memory on some
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` of the processes and ground rules. So this -- this
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` deposition is a cross examination based on the
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` declaration that you've submitted in the IPR, and
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` I'll be asking questions, and the court reporter
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` will be writing down everything we say, so I'll do
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` my best not to ask a question, while you're in the
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` middle of the answer, I'll try not to interrupt
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` you, and I ask that you wait until I finish my
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` question before you answer. Is that okay?
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` A That's fine.
`
` Q Okay. And since the printed record --
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` there's no videotape here, the printed record is
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` going to be used in the proceeding, I ask that you
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` give audible answers, no uh-huhs and head nods,
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` that they won't be recorded properly, so yeses and
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` nos or -- or full sentence answers. Is that okay?
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` A That's fine.
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` Q Okay, good. Is there any reason such as
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` A Yes, I do.
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` Q Okay, and what is that document I just
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` handed to you?
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` A That's my declaration.
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` Q And this is the declaration that was
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` submitted on behalf of Patent Owner Toshiba Samsung
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` Storage Technology Korea Corporation in an IPR
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` proceeding, correct?
`
` A That is correct.
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` Q And you've been retained by the patent
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` owner to assist in this matter?
`
` A That is correct.
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` Q Dr. Lebby, have you ever been retained to
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` perform any expert consultation work in an IPR
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` proceeding before this current proceeding?
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` A Yes, I have.
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` Q About how many proceedings?
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` A I don't recall exactly, but probably
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` three to five.
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` Q Have you ever had your deposition taken
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` before?
`
` A Yes, I have.
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` Q About how many times?
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` A Twelve, plus or minus a few.
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` Q Okay, great. Then you understand the
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` any medical conditions or any medicines or anything
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` that you'd be on that would prevent you from
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` answering truthfully and honestly today?
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` A No.
` Q Okay. And if I ask a question and you
` don't understand the question, I ask that you
` please let me know that, and if you answer a
` question, I'll have to assume that you understood
` the question, okay?
` A That's correct.
` Q Okay. If you could turn to page 16 of
` your declaration, Exhibit 2002, are you there,
` Dr. Lebby?
` A Yes, I'm there.
` Q Okay. Is that your signature on that
` page?
` A That certainly looks like my signature.
` Q Do you recall signing the declaration?
` A I recall signing a declaration a couple
` months ago, yes.
` Q Okay, and there's a date on that page.
` Do you see that date?
` A Date says the 5th of May 2016.
` Q Okay. Do you believe that you signed
` this declaration on May 5th, 2016?
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`9
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`3 (Pages 9 to 12)
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` A Yes.
`
` Q Okay. And if you could turn the page to
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` the next page, which is -- appears to be page 1 of
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` your resume, if you wouldn't mind, could you flip
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` through that and confirm for me that that is your
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` resume, Dr. Lebby?
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` A Yes, I confirm this is my resume.
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` Q Okay. Do you happen to know when this
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` copy of the resume was last updated? Let me -- let
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` me reask the question. I'm not asking about this
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` exact copy. I mean the version of the resume
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` that's attached to your declaration, can you let me
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` know whether you recall the last time that was
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` updated?
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` A It was probably April or May this year.
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` Q Are you aware of anything -- any
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` inaccuracies in the resume that you'd like to
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` correct?
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` A Not at this time.
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` Q Okay. Have you ever been engaged to work
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` in -- excuse me, rephrase my question. Have you
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` ever been engaged by Samsung in the past to provide
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` consulting services?
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` A I believe the answer's no.
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` Q If I refer to Toshiba Samsung Storage
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` Technology Corporation Korea as TSSTK, will that
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` work for you for the deposition?
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` A Yes.
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` Q Okay, so when I say TSSTK, I mean the
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` patent owner in this case. Prior to your
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` engagement in this matter, IPR2015-01653, have you
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` been asked or been engaged by TSSTK to provide
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` expert consulting services?
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` A No.
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` Q When did you -- when were you engaged by
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` TSSTK in this matter?
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` A I believe it was the first quarter of
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` this year, but I don't know exactly.
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` Q Were you engaged by a law firm or were
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` you engaged directly by TSSTK?
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` A In this particular case, I believe it was
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` a referral from the previous law firm that
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` represented TSSK -- TSSTK.
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` Q Do you remember the law firm?
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` expert consulting services?
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` A Yes, I have.
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` Q And in connection with patent litigation?
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` A Correct.
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` Q Are those engagements listed in your
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` resume?
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` A Page 5 of my resume, looks like case 10,
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` I represented Samsung as the respondent to Optical
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` Devices, and also I believe page 4, case 4, I
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` represented Samsung as a respondent for another ITC
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` case.
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` Q Are there any other engagements that
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` you're aware of where you were asked to provide
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` expert consulting services to Samsung?
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` A I believe that is it.
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` Q So there's no engagements that you're
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` aware of where you provided expert services --
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` expert consulting services to Samsung that are not
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` listed in your resume?
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` A That's correct.
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` Q How about Toshiba? Have you ever been
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` engaged by Toshiba before to provide expert
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` A DLA Piper.
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` Q So DLA Piper hired you?
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` A Yes. Well, "hired" is an interesting
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` term. I got approved, but there was no work until
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` the law firm was changed.
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` Q Okay. So you didn't begin working on
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` your declaration until the law firm changed to
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` current counsel?
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` A That is correct.
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` Q Do you have representation today? Are
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` you being represented by a lawyer?
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` A No, unless my counsel -- well, I don't
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` understand the question. I mean, I don't have a
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` personal lawyer, but I'm represented by my counsel
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` here.
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` Q Do you have an understanding whether Mr.
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` Rhoa's representing you today for the purpose of
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` this deposition?
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` A Yes, he is.
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` Q Are you paying Mr. Rhoa to represent you
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` today in this deposition?
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` A No.
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
` Q Do you know who's paying Mr. Rhoa to
`
` represent you today?
`
` A I don't know the answer to that question.
`
` Q Were you asked to pay Mr. Rhoa for his
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` time today?
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` A No.
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` Q Did you do anything to prepare for this
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` deposition?
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` A I read documents over the last two days.
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` Q What documents did you review?
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` A I don't know if I can list them by
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` memory, but certainly my declaration, and also my
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` counsel's declaration and petition on behalf of the
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` patent owner. I also read the deposition of your
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` expert, and I read the APA section of the '106
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` patent, the '106 patent, and the '750 patent.
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` Q Do you recall any more documents?
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` A There was a couple of other documents,
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` but I don't recall their titles.
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` Q Do you recall whether they were patent
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` documents or other kinds of documents?
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` A No, they were legal documents.
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` Q Did any of these legal documents refresh
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` your memory as to anything that you may anticipate
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` this deposition today?
` A Yes, I had discussions with my counsel
` yesterday.
` Q About how long were your discussions with
` counsel yesterday?
` A The majority of the day yesterday.
` Q And what does that -- what does that
` mean, majority of the day?
` A From 9:00 a.m. to 4:00 p.m.
` Q Did you have any other discussions with
` counsel besides the ones that you had yesterday in
` preparation for this deposition?
` A No.
` Q And when you said someone showed you
` copies, who showed you copies of documents?
` A My counsel.
` Q And that was in the meeting yesterday?
` A Correct.
` Q Did you review any documents outside of
` your meeting yesterday in preparation for this
` deposition today?
` A Only last night and this morning.
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` Q And the documents that you read last
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` night and this morning -- do you recall which
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` A No.
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` Q These legal documents -- were they big
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` thick documents, legal documents?
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` A I believe one of them was your expert's
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` report, which I did not read in total, but I was
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` certainly shown a copy of it, and I believe another
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` one of the documents may have been an LG petition I
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` believe.
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` Q Okay, so when you said that you had read
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` the petition on behalf of the patent owner, is it
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` possible you meant to say the patent owner's reply?
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` A It was filed by my counsel, yes, I
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` believe it might be the right phrase.
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` Q And then you also read the petition filed
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` by LG that initiated the challenge against the
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` patent in this IPR; is that right?
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` A That's correct.
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` Q Okay. Other than reading these
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` documents, did you do anything else to prepare for
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` documents those were?
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` A My declaration, my counsel's petition,
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` and the two patents in question.
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` Q If you could turn back to page 4 of your
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` resume, at the very top is a reference to a
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` Ziptronix, Inc. V OmniVision Technologies, Inc. and
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` some other companies. That's a description of a
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` litigation where you were engaged to provide expert
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` consulting services to Ziptronix; is that correct?
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` A Yes.
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` Q And the subject matter of the litigation
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` was CMOS-based image sensor materials, devices,
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` optics and products?
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` A Correct.
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` Q Is CMOS-based image sensor materials,
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` devices, optics and products an area that you would
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` consider yourself an expert in?
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` A I believe so, yes.
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` Q Is there -- do you recall precisely what
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` the technology was? Like could you explain to me
`
`PLANET DEPOS
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`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`17
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`5 (Pages 17 to 20)
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` in more detail than this general description?
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` A CMOS-based image sensor is typically you
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` would see as a camera on a cell phone, so it's an
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` array of photo detectors made out of silicon.
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` Q Okay. Did it involve the actual sensor
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` or did it involve the lens?
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` A In this particular case it was the actual
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` sensor that was made out of the silicon
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` semiconductor.
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` Q Did it have anything to do with focusing
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` laser light on an optical disk?
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` A In this particular case it did not use
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` laser light.
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` Q Okay. Item number 2 says testimony for
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` U.S.-China Economic and security review commission
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` on the optoelectronics industry. What was the
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` subject matter of your statement?
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` A The U.S. optoelectronics industry that
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` encompasses all different types of optoelectronics,
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` ranging from consumer optoelectronics to fiber
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` optical storage area; is that --
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` A Correct.
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` Q What sort of work were you doing in the
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` optical storage area?
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` A Typically the association represents
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` industry for work in government. And also at this
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` time, we arranged workshops and conferences in the
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` field, and we also did technical road maps or
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` technology road maps of the field.
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` Q And when you say we, are you referring to
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` OIDA or are you referring to yourself?
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` A I'm referring to both.
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` Q Is there anything else you did in the
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` optical storage area for OIDA?
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` A We wrote monthly reports, we gave
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` technical updates to the industry, so there's a lot
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` of things that the industry association did.
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` Q Okay. And these technical reports, or
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` excuse me. These technical updates -- what sort of
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` things in the optical storage area did you update
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` optics displays. It's a very broad definition.
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` the industry on?
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` Q What is optoelectronics?
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` A Technologies such as laser diodes, some
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` A Optoelectronics is the subject matter to
` do with both the optical and the electronics side
` of things in terms of devices and optics.
` Q Now, can you state a little bit more
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` about that? I don't really understand what you
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` mean, the optical and electronics sides of things
`
` in terms of devices and optics.
` A Part of the responsibilities of OIDA,
` which is the optoelectronics association that I
` worked for at that time, included work on optical
` storage, fiber optics, displays, optics in general,
` laser diodes, LEDs.
` Q So what kind of work did you do with
`
` optical storage at this time? Let me reask the
`
` question for you. So at this time, which is March
`
` 24th, 2009, you were working for the
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` optoelectronics association; is that correct?
` A OIDA stands for Optoelectronics Industry
` Development Association.
` Q And you were working for OIDA?
` A Correct.
` Q And you said you were doing work in the
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` of the optics that's used in the storage systems,
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` photo detectors used in storage systems, even to
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` the extent of forecasting disks, the growth of the
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` industry, cost of DVDs, CD, Blu-ray type players,
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` how many units were sold, who was buying the units,
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` typical market data as well.
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` Q Okay. Did you design products at that
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` time?
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` A OIDA is a trade association. It doesn't
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` design products.
`
` Q Okay. So you -- at this time, you did
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` not design products?
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` A That is correct.
`
` Q So when you say you're updating the
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` industry on all this sort of laundry list of
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` things, did OIDA do research and then provide the
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` industry results of the research?
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` A That's correct.
`
` Q So what kind of research did you do in
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` the optical storage area?
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` A Looking at publications, talking to
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` industry, talking to companies that produce these
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`21
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`6 (Pages 21 to 24)
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` products.
`
` Q Do you remember the companies that you
`
` talked to at this time?
`
` A No, because there was -- there's many,
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` probably in the hundreds of thousands.
`
` Q Do you remember talking to TSSTK at this
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` time?
`
` A I don't recall.
`
` Q Do you remember talking to Samsung at
`
` this time?
`
` A That probably occurred.
`
` Q Probably? Do you remember who you would
`
` have talked to?
`
` A No.
`
` Q How about Toshiba? Do you remember
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` talking to Toshiba at this time?
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` A I don't recall, but I most likely talked
`
` to them.
`
` Q Do you remember who you would have talked
`
` to?
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` typically. My role there was to look at VCSEL
`
` history, VCSEL patents, VCSEL publications in
`
` connection with this case.
`
` Q And you were hired to opine on the
`
` invalidity of those patents?
`
` A Yeah, this -- in this case, Finisar was
`
` the plaintiff and Optical Communication Products
`
` was the defendant.
`
` Q Okay, I'm a little confused. Were you --
`
` were you -- did you -- excuse me, rephrase that.
`
` In that case did you have an opinion about whether
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` the patents were valid or invalid?
`
` A I certainly had opinions, and my
`
` understanding was the case was settled.
`
` Q Do you recall whether your opinions were
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` that the patents were valid or were your opinions
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` that they were invalid?
`
` A I don't recall that level of detail.
`
` Q Do you remember whether you were hired to
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` prove or help prove that the patents were valid or
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` A No.
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` whether you were hired to prove or help prove that
`
` Q How about LG Electronics? Did you talk
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` the patents were invalid?
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` --
` A Probably would have talked to them, but I
` don't recall anybody I talked to.
` Q How about Hitachi?
` A Probably talked to them. I don't recall
` anybody I talked to.
` Q How about lens manufacturers? Do you
`
` remember talking to any lens manufacturers at that
`
` time?
` A Yes, we did talk to lens manufacturers,
` but I don't recall any details.
` Q Okay, the next -- the next case on the
`
` list is this district court litigation, so number 3
`
` on page 4 of your resume, it says here that you
`
` worked as an invalidity expert on contested patents
`
` for plaintiff. Do you recall exactly what aspects
`
` of invalidity you worked on in that case?
` A Yes, it was to do with the VCSEL, which
` is a diode laser. That's V-C-S-E-L. It is -- it
` stands for vertical-cavity surface-emitting laser.
` It's a diode laser, and it can output wavelengths
` ranging from 600 nanometers to two microns
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` A I think the truthful answer is probably
`
` both because Optical Communication Products had
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` VCSEL and associated electronic circuitry patents,
`
` and Finisar had VCSELs and associated electronic
`
` circuitry patents.
`
` Q Do you recall whether the -- the issues
`
` related to what's called obviousness?
`
` A Sure, those issues came up.
`
` Q Okay, so you have an understanding of
`
` what obviousness is in the patent arena?
`
` A I believe I do.
`
` Q And then we get to case number 4 on your
`
` resume, which we previously discussed at a very
`
` high level. I think you said that you were hired
`
` on behalf of Samsung; is that correct?
`
` A I represented Samsung in this case, yes.
`
` Q Okay. Do you remember what the subject
`
` matter of the litigation was?
`
` A Subject matter from the ITC standpoint
`
` was called In the Matter of Certain Light-Emitting
`
` Diodes and Products Containing the Same.
`
` Q Yeah. I'm asking you if you recall what
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`Deposition of Michael Stephen Lebby, Ph.D.
`Conducted on June 30, 2016
`
`25
`
` the subject matter of the litigation was, not the
`
` title of the litigation.
`
` A Subject matter was LEDs, LED materials,
`
` the optics associated with LEDs, the lenses
`
` associated with LEDs, and the packages those LEDs
`
` were put inside.
`
` Q What kind of lenses were associated with
`
` LEDs in this case?
`
` A In this case different types of lens
`
` materials that included both glass, plastic and
`
` silicon gel.
`
` Q Are there different kinds of lenses?
`
` A There are.
`
` Q In this case?
`
` A I don't recall all the details at this
`
` point.
`
` Q Okay. I mean, I asked you about
`
` different kinds of lenses, and you gave me the
`
` materials. Was the case about the materials of the
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`7 (Pages 25 to 28)
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` deposition?
`
` A Well, I was represented by at that time
`
` my counsel, which was Covington & Burling, who I
`
` believe represented Samsung.
`
` Q Do you remember if LG's attorneys
`
` attended that deposition?
`
` A I have no idea who they --
`
` Q So you have no recollection one way or
`
` the other whether they did.
`
` A No.
`
` Q Do you know whether or not you had any
`
` meetings with LG's attorneys?
`
` A I don't recall.
`
` Q Do you remember the results of the case?
`
` A Not in great detail. I believe my
`
` arguments certainly were approved, but then the
`
` final -- final decision out of the ITC was complex,
`
` so I didn't clearly fully understand all of it.
`
` Q Was it a patent matter?
`
` lenses or was the case about the types of lenses
`
` themselves, or can you help me out there?
`
` A The case was about OSRAM that had patents
`
`26
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` that included LED designs, LED optics, LED lens
`
` designs and packages, and they were trying to
`
` prevent Samsung and LG from importing their
`
` products. I don't recall all the figures in the
`
` patents, but there were many different embodiments.
`
` Q And LG was a joint defendant in that
`
` case?
`
` A I believe so. I'm not sure how the legal
`
` situation was, but it was both Samsung and LG.
`
` Q Did you provide any sort of expert report
`
` in that case?
`
` A Yes, I did.
`
` Q Do you know if that expert report was
`
` relied upon by both defendants in that case?
`
` A I know it was relied upon by Samsung. I
`
` am not sure whether LG relied upon it or not.
`
` Q The description appears to suggest that
`
` you were deposed in that matter; is that correct?
`
` A That is correct.
`
` Q Do you recall who defended you in that
`
` deposition? Let me ask a better question. Was it
`
`