Godmar Back - December 7, 2017
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________________
` )
` APPLE, INC., )
` Petitioner, )
` )
` V. ) Case IPR2016-01737
` ) Patent 8,880,862 B2
` REALTIME DATA, LLC. )
` Patent Owner. )
` )
` _____________________________)
`
` DEPOSITION OF: DR. GODMAR BACK
`
` December 7, 2017 (Thursday)
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` 9:30 a.m
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`.
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`REPORTED BY: Mary J. Butenschoen, RPR, #44952
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`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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` 1
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`APPLE 1047
`Apple v. Realtime Data
`IPR2016-01737
`
`
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________________
` )
` APPLE, INC., )
` Petitioner, )
` )
` V. ) Case IPR2016-01737
` ) Patent 8,880,862 B2
` REALTIME DATA, LLC. )
` Patent Owner. )
` )
` _____________________________)
`
` DEPOSITION OF: DR. GODMAR BACK
`
` December 7, 2017 (Thursday)
`
` 9:30 a.m
`
`.
`
`REPORTED BY: Mary J. Butenschoen, RPR, #44952
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`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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` 1
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`APPLE 1047
`Apple v. Realtime Data
`IPR2016-01737
`
`
`
`Godmar Back - December 7, 2017
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`Page 2
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` A P P E A R A N C E S
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`ON BEHALF OF THE PETITIONER:
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` Andrew Patrick
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` R. Andrew Schwentker
`
` FISH & RICHARDSON P.C.
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` axf-ptab@fr.com
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` patrick@fr.com
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` schwentker.com
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`ON BEHALF OF THE PATENT OWNER:
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` Joseph F. Edell
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` Alyssa H. Ruderman
`
` FISCH SIGLER LLP
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` joe.edell@fischllp.com
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` alyssa.ruderman@fischllp.com
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`Godmar Back - December 7, 2017
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`Page 3
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` I N D E X
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`EXAMINATION OF DR. GODMAR BACK PAGE
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`By Mr. Schwentker 4
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`By Mr. Edell 154
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` * * * * *
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` E X H I B I T S
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` (None)
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` * * * * *
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` P R O C E E D I N G S
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`Whereupon at 9:37 a.m.,
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` DR. GODMAR BACK
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`after having first been duly sworn to tell the
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`truth, the whole truth, and nothing but the truth,
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`was examined and testified as follows:
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` EXAMINATION
`
`BY MR. SCHWENTKER:
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` Q Good morning, Doctor Back. For the
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`record, this is Andy Schwentker from Fish &
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`Richardson on behalf of Petitioner Apple. Could you
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`please state your full name for the record.
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` A My name is Dr. Godmar Back.
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` Q The court reporter has handed you two
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`documents. The first one is in case IPR 2006-01737,
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`and it's title Expert Declaration of Dr. Godmar Back
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`in Support of Patent Owners Supplemental Response to
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`its Motion to Amend. Do you see that?
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` A Yes, I do.
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` Q And is this your declaration?
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` A Yes, it is.
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` Q And you submitted this on December 1,
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`2017; is that correct?
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` A Yes, I did.
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` Q The other document has the same title
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`but is in Case IPR 2016-01738. Do you see that?
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` A I do.
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` Q And is this your declaration as well?
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` A It is.
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` Q And you submitted this declaration on
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`December 1, 2017; is that correct?
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` A Yes, I did.
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` Q Or at least you signed it on that
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`date?
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` A I signed it on that date. I think
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`counsel did the actual submission.
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` Q Right. And I don't recall if that
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`submission took place on the 1st or not, but you
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`signed both of these declarations on December 1,
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`2017, right?
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` A Yes. I think there was an issue with
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`an extension because of a family emergency for one
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`of the counsel.
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` Q Are these -- so it's my understanding
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`that these declarations are the same. Is that
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`accurate?
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` MR. EDELL: Objection, form.
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` For the record, this is Joe Edell,
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` counsel for Patent Owner Realtime Data,
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` joined today by Alyssa Ruderman, both from
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` the firm Fisch Zigler.
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` THE WITNESS: They relate to two
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` different proceedings but they make the
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` same arguments.
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`BY MR. SCHWENTKER:
`
` Q Okay. And so if -- if I refer to one
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`of the declarations during your deposition today,
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`will you understand that my question applies equally
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`to both declarations?
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` A I do, as long as it is not referring
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`to those things that are different in the two
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`proceedings.
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` Q Okay. But there aren't any
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`differences between the actual text of the
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`declarations; is that right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I'm not entirely
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` certain, but I do not believe so.
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`BY MR. SCHWENTKER:
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` Q Okay. Let's see, and these are
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`your -- I believe your third declarations submitted
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`in the 1737 and 1738 proceedings; is that right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I don't believe so. I
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` think those are the third -- this is the
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` third kind of declarations in the motion to
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` amend proceedings, not in the 1737 IPR.
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`BY MR. SCHWENTKER:
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` Q Okay. So are these your fourth
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`declarations in the 1737 and 1738 proceedings?
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` A I think it would be.
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` Q Okay. So if I refer to your fourth
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`declaration, you'll understand that I'm referring to
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`these declarations?
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` A I do.
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` Q Okay. I'd like for you to turn to
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`paragraph 5 of your declaration.
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` And in that paragraph you state that
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`in forming your opinions you have reviewed and
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`considered the materials identified in the
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`paragraphs above. Those identified in your prior
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`declarations of June 14, 2017, and October 11, 2017.
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`And the materials cited and discussed in this
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`declaration.
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` Can you state for the record which
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`materials you reviewed before signing this
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`declaration?
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` MR. EDELL: Doctor Back, I just
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` caution you, in replying to the question,
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` don't reveal any discussions you had with
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` counsel.
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` THE WITNESS: As it says in paragraph
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` 5, I reviewed and considered the materials
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` identified in the paragraphs above. And
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` that is referring to paragraph 1, 2, 3, 4,
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` which talks about a number of documents
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` related to these proceedings, as well as
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` those identified in prior declarations.
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`BY MR. SCHWENTKER:
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` Q In paragraph 4 which you referred to,
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`you state that you were asked to consider Apple's
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`arguments, Doctor Neuhauser's declaration, and
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`Doctor Neuhauser's cross-examination testimony to
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`determine whether those materials affect the
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`analysis and conclusions stated in your declarations
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`of June 14, 2017, and October 11, 2017.
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` Did you review all of these materials
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`and the references cited in those materials while
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`preparing this declaration?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I reviewed all of these
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` materials. Specifically, this paragraph
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` refers to the supplemental response and the
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` accompanying declaration, and with respect
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` to the references in those documents I
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` reviewed them to the extent it was
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` necessary to form my opinions.
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`BY MR. SCHWENTKER:
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` Q I'd like you to turn to Page 10 of
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`your declaration. Starting on Page 10, Paragraph
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`25, and then continuing on to the next pages 11 and
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`12, there are paragraphs 26 and 27.
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` A I see those.
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` Q In these paragraphs you cite three
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`issues of PC Magazine. A December 1, 1999, issue, a
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`March 7, 2000 issue, and, a March 21, 2000 issue.
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`Do you see that?
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` A I do.
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` Q Did you fully review those documents
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`before signing your fourth declaration?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I examined the
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` material, the advertisements, that are
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` presented as excerpts in my declaration.
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`BY MR. SCHWENTKER:
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` Q So you only reviewed the excerpts?
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` MR. EDELL: Objection, form.
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` THE WITNESS: In the context of these
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` proceedings, Apple put forth that a person
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` of ordinary skill would have been motivated
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` by a cost advantage to perform certain
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` modifications to Sukegawa's system.
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` Therefore, I was interested in the
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` question what would the view of a person of
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` ordinary skill be at the time of the
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` invention with respect to the relative cost
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` of flash and RAM.
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` This reference that I'm citing to
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` provides the necessary data that would have
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` influenced the opinion of a person of
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` ordinary skill in the art. That's why I'm
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` citing to it.
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`BY MR. SCHWENTKER:
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` Q I understand. My -- I guess my
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`question is did you review only the excerpts that
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`are included as exhibits?
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` MR. EDELL: Objection, form.
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` THE WITNESS: That is correct.
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`BY MR. SCHWENTKER:
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` Q Did you -- okay. So you didn't
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`review the entire issues of the PC Magazine that you
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`cite.
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` MR. EDELL: Objection, form.
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` THE WITNESS: I did not.
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`BY MR. SCHWENTKER:
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` Q Did you find these issues of PC
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`Magazine yourself?
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` MR. EDELL: Objection, and I caution
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` you not to discuss or refer to any
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` discussions you had with counsel.
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` THE WITNESS: So I -- I -- I
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` collaborated on this with counsel. I
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` basically had them go out and look up this
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` information.
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`BY MR. SCHWENTKER:
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` Q Was this information that you
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`recalled from the time period?
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` MR. EDELL: Objection, form.
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` MR. SCHWENTKER: Strike that.
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`BY MR. SCHWENTKER:
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` Q In other words, did you remember
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`there were particular issues of PC Magazine that
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`would be helpful?
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` MR. EDELL: Object to the form, and I
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` instruct you not to refer to any
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` discussions you have had with counsel.
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` THE WITNESS: I know and a person of
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` ordinary skill would know that the relative
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` price of flash and RAM has been changing
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` historically.
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` We know that a long time ago, in
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` 1980, flash was significantly more
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` expensive. We know today it is cheaper on
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` a appropriate basis. At some point the
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` price ratio changed.
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` We were interested in finding out
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` what was the person -- what was the view of
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` a person of ordinary skill as of February
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` 2000, which Doctor Neuhauser acknowledges
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` the appropriate time, the time of the
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` invention. And so looking at magazines
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` that a person of ordinary skill in the art
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` would read seemed an appropriate reference.
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`BY MR. SCHWENTKER:
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` Q I'm just trying to get a sense of
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`whether you remembered that, oh, yeah, there are
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`these, you know, issues of PC Magazine from around
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`the time period that will show what the cost of
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`flash and RAM was at the time. Let's go find those.
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` A Yes, I did remember that there were.
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` MR. EDELL: Objection, form.
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` THE WITNESS: I did remember that
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` there were trade publications at the time
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` that a person of ordinary skill would have
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` looked to.
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`BY MR. SCHWENTKER:
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` Q But not specifically PC Magazine.
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` MR. EDELL: Object, form.
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` THE WITNESS: No, PC Magazine as
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` well. It is a relevant magazine.
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`BY MR. SCHWENTKER:
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` Q So you specifically remembered that
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`PC Magazine from the time would show what the cost
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`of flash and RAM were?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I suggested to do
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` research in relevant trade publication of
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` the period, of the time period such as PC
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` Magazine, yes.
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`BY MR. SCHWENTKER:
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` Q Were there any other trade
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`publications you suggested?
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` MR. EDELL: Objection, form. I -- I
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` actually instruct you not to answer.
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`BY MR. SCHWENTKER:
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` Q Were there any other trade
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`publications you thought of?
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` MR. EDELL: Objection, form.
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` THE WITNESS: In my declaration I'm
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` citing to the publication upon which I
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` relied in order to form my opinion that a
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` person of ordinary skill in the art would
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` not have been motivated by cost to combine
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` Sukegawa with DRAM in the manner the
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` petitioner has proposed.
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`BY MR. SCHWENTKER:
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` Q In paragraph 25 you say there's
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`evidence to demonstrate the flash memory could be
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`obtained for a significantly smaller cost than DRAM
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`on a per megabyte basis as of February 2000. Do you
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`see that?
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` A Yes, I see where it says that.
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` Q How did you reach this conclusion?
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` A It is based on the advertisement to
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`which I am citing which shows a lower per megabyte
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`price.
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` Q Okay. So the basis for that opinion
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`is what's set forth in the remainder of paragraph
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`25?
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` MR. EDELL: Objection, form.
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` THE WITNESS: The remainder of
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` paragraph 25 demonstrates by example why I
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` believe that a person of ordinary skill
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` would reach that conclusion.
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` In other words, as I say, it presents
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` evidence that flash memory could be
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` obtained for significantly smaller cost
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` than DRAM on a per megabyte basis as of
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` February 2000.
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`BY MR. SCHWENTKER:
`
` Q I'm just trying to make sure the
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`basis for that opinion is what you cite from PC
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`Magazine; is that right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I am presenting
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` evidence from PC Magazine to back up my
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` opinion that a person of ordinary skill
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` would not have been motivated. And I think
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` it is evidence that flash memory could be
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` obtained for a significantly smaller cost
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` than DRAM.
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`BY MR. SCHWENTKER:
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` Q In the next paragraph, paragraph 26,
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`you state that subsequent issues of PC Magazine from
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`the relevant time frame show that flash remained
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`available at a lower cost than RAM on a per megabyte
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`basis, even as the cost of both types of memory
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`continued to drop. Do you see that?
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` A I see where it says that.
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` Q And is that opinion based on the
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`evidence you cite from PC Magazine?
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` A Yes, it relates to the -- to the
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`second ad cited to -- produced, in fact, in
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`paragraph 26.
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` Q And then in paragraph 28 you say that
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`a POSA would have been aware that the cost of flash
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`memory was dropping relative to RAM prior to
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`February 2000 and that by February 2000 RAM could in
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`fact be more expensive or at least equally as
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`expensive as flash on a per megabyte basis.
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` Do you see that?
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` A Yes, I see where it says that, and
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`that is correct as well.
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` Q And is that opinion based on the
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`evidence you cite from PC Magazine?
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` A Yes, it is. It says it is,
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`therefore, and that is referring to the evidence
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`presented in the previous three paragraphs.
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` Q Okay. So in reaching the conclusions
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`stated in paragraphs 25 through 29 of your
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`declaration, did you rely only on the three issues
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`of PC Magazine referred to in those paragraphs?
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` MR. EDELL: Objection, form.
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` THE WITNESS: There are three issues
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` of PC Magazine and the advertisements of
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` which I am presenting excerpts in forming
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` my opinion that a person of ordinary skill
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` would have been aware of the price drop in
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` the cost of flash memory to the point that
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` they would realize that RAM could in fact
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` be more expensive, or in fact equally as
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` expensive, and, therefore, would not have
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` used cost as motivation to augment Sukegawa
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` system in the way proposed.
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`BY MR. SCHWENTKER:
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` Q I'm -- I'm just trying to make sure
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`that the -- what you base the opinion on is the
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`evidence you cited from PC Magazine in these
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`paragraphs and not something else.
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` MR. EDELL: Objection, form.
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` THE WITNESS: I have cited the
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` documents from which I relied in forming
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` this opinion.
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`BY MR. SCHWENTKER:
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` Q Okay. Did you review any other trade
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`publications in forming your -- strike that.
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` In the context of working on the --
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`your fourth declaration, did you review any other
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`trade publications?
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` MR. EDELL: You can answer yes or no.
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` THE WITNESS: I personally did not
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` review any other trade publications because
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` I think that the evidence that we found
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` clearly demonstrates and backs up my
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` opinion that a person of ordinary skill
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` would have been aware of the price drop,
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` would have been aware of flash, and would
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` have been aware that RAM could in fact be
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` more expensive, and, therefore, would not
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` have been motivated by cost to modify
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` Sukegawa system.
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`BY MR. SCHWENTKER:
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` Q When you say the evidence that we
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`found, who are you referring to?
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` MR. EDELL: Objection, form.
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` Objection, don't reveal any conversations
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` you had with counsel.
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` THE WITNESS: As I mentioned earlier,
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` I had counsel go out and look up relevant
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` information from the time of the invention.
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` So "we" here is referring to myself and the
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` counsel that I work with.
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`BY MR. SCHWENTKER:
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` Q Before signing your declaration, did
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`you conduct a study of the markets for flash memory
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`and for RAM during the relevant time frame?
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` MR. EDELL: Objection, form.
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` THE WITNESS: My task was not to
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` conduct a study of pricing. My task was to
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` examine whether a person of ordinary skill
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` would have viewed cost as a significant
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` motivation to modify Sukegawa system.
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` With the evidence I presented it is
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` my opinion that a person of ordinary skill
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` would not have been motivated by cost to
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` modify Sukegawa system in this way.
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`BY MR. SCHWENTKER:
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` Q In these paragraphs 25 through 28 you
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`referred to issues of PC Magazine from December 1,
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`1999, March 7, 2000, and March 21 2000. Is it your
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`opinion that materials published after February of
`
`2000 can be relevant to issues of patentability in
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`these proceedings?
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` MR. EDELL: Objection, form.
`
` THE WITNESS: So it seems like a
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` legal question that I'm not certain of, but
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` I would like to reiterate why we were
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` looking at time the period of February
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` 2000, because it is the time of the
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` invention, and I believe that your expert,
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` Doctor Neuhauser, acknowledged that to him
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` that time period was the relevant time
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` period that he used to form his opinions,
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` which I was asked to valuate, so,
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` therefore, I was using the same time
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` period.
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`BY MR. SCHWENTKER:
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` Q You would agree that the March 7,
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`2000, issue is from after February of 2000, right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: Well, the -- as I point
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` out in paragraph 26, the March 7 issue
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` presumably was prepared before March 7.
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`BY MR. SCHWENTKER:
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` Q But you don't have any evidence that
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`it was published before March 7, do you?
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` MR. EDELL: Objection, form.
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` THE WITNESS: The March 7 issue was
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` published on March 7, and as I point out in
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` paragraph 26 it was necessarily prepared
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` before March 7. Not presumably. Strike
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` that from earlier. Necessarily prepared
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` before March 7.
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`BY MR. SCHWENTKER:
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` Q You understand that the '862 patent
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`claims priority to a provisional application filed
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`on February 3 of 2000, correct?
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` MR. EDELL: Objection, form.
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` THE WITNESS: So I take your word for
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` it that it's the correct priority date. I
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` would have to see the patent to confirm the
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` exact date.
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`BY MR. SCHWENTKER:
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` Q The court reporter has handed you a
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`copy of U.S. Patent Number 8880862. Do you see
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`that?
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` A I do.
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` Q And on the first page on the
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`left-hand side about halfway down do you see where
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`it says: Provisional application number 6180114
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`filed on February 3, 2000?
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` A Correct, I see that.
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` Q Okay. So does this confirm for you
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`the '862 patent claims priority to an application
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`filed on February 3, 2000?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I think it does.
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`BY MR. SCHWENTKER:
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` Q So the March 7, 2000, issue of PC
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`Magazine was published more than a month after the
`
`date to which the '862 patent claims priority,
`
`right?
`
` MR. EDELL: Objection, form.
`
` THE WITNESS: I think that the
`
` evidence that I'm presenting here which
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` dates from issues December 1, 1999, March
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` 7, 2000, and March 21, 2000, are relevant
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` to the knowledge a person of ordinary skill
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` would have had at the time of the invention
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` February 3, 2000.
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`BY MR. SCHWENTKER:
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` Q You agree, though, that the March 7,
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`2000, issue of PC Magazine was published more than a
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`month after the February 3, 2000, date, right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: As I state in my
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` declaration it was published March 7 and
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` necessarily prepared before March 7.
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`BY MR. SCHWENTKER:
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` Q And March 7 comes off February 3,
`
`right?
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` A It does.
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` Q Okay. So --
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` A May I -- may I add that the context
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`in which this discussion is -- is taking place, I
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`argue in paragraphs 18 to 28 the information that
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`would have influenced a person of ordinary skill in
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`the art and part of this is that based on the
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`evidence that is presented here such as the Dye
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`evidence that Doctor Neuhauser discussed as well as
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`the relevant advertisement in these trade
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`publications give us strong reason to believe that a
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`person of ordinary skill would have been aware that
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`a significant price drop of flash drive to RAM was
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`taking place and would have been aware that flash
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`could be obtained for less cost, and, therefore,
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`would not have been motivated by cost to perform the
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`combination of Sukegawa in the manner that the
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`petitioner has proposed, and it was examining
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`whether a person of ordinary skill would have been
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`motivated to do so what I was asked to examine. So
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`that was my task.
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` Q Okay. Right now I'm specifically
`
`asking about the issues of PC Magazine you cited,
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`and, particularly, the March 7, 2000, issue, and the
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`March 21, 2000, issue. And you would agree that
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`both of those were published after the date -- after
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`the February 3, 2000, date of the '862 patent,
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`right?
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` MR. EDELL: Objection, form.
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` THE WITNESS: So March 7 is a later
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` date than February 3, 2000, that's correct.
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`BY MR. SCHWENTKER:
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` Q And March 21 is also a later date
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`than February 3, 2000, correct?
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` A Yes, it is.
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` Q So my -- my question for you, is it
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`your opinion the materials published after February
`
`3, 2000, can be relevant to issues of patentability
`
`in these cases?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I would not agree to
`
` the statement in the way you proposed it.
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` Certainly information around that time
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` clearly relevant, but if you were to
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` present information from five, ten, fifteen
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` years later it would not give us any
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` information as to what would have
`
` influenced a person of ordinary skill at
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` the time of the invention.
`
`BY MR. SCHWENTKER:
`
` Q Where would you draw the line between
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`what is clear -- strike that.
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` With respect to evidence dated after
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`the February 3, 2000, date, where would you draw the
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`line between evidence that, as you say, is clearly
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`relevant and evidence that you would not consider to
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`be relevant?
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` MR. EDELL: Objection, form.
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` THE WITNESS: So this is not a task I
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` was asked to address here.
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`BY MR. SCHWENTKER:
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` Q Okay. So you don't have an answer?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I was not asked to
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` address this, and so, no, I don't have an
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` answer for this -- for you on this at this
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` point.
`
`BY MR. SCHWENTKER:
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` Q But you do think that the March 7 and
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`March 21, 2000, issues of PC Magazine are relevant
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`to the issues of patentability in these proceedings,
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`right?
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` MR. EDELL: Objection, form.
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` Objection, relevance.
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` THE WITNESS: I think they are
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` relevant to provide us with information
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` regarding the knowledge that a person of
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` ordinary skill would have had at the time
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` of the invention in February of 2000.
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`BY MR. SCHWENTKER:
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` Q Okay. So you would agree that at
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`least some materials from after February 3, 2000,
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`can be relevant to the issues of patentability in
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`these proceedings?
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` MR. EDELL: Objection, form.
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` Objection, relevance.
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` THE WITNESS: My statement is
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` specifically that the materials that I am
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` presenting here are relevant to the
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` knowledge a person of ordinary skill would
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` have had at
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