Dr. Godmar Back - November 2, 2017
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` ________________
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ________________
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` APPLE, INC.,
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` Petitioner,
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` V.
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` REALTIME DATA, LLC
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` Patent Owner.
` _________________
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` Case IPR2016-01737
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` Patent 8,880,862 B2
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` _________________
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` DEPOSITION OF DR. GODMAR BACK
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` November 2, 2017, 9:30 a.m.
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` Hilton Garden Inn
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` 900 Plantation Road
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` Blacksburg, VA 24061
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`REPORTED BY: Mary J. Butenschoen, RPR, #44952
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`GregoryEdwards, LLC | Worldwide Court Reporting
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` 1
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`APPLE 1046
`Apple v. Realtime Data
`IPR2016-01738
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`
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` ________________
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ________________
`
` APPLE, INC.,
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` Petitioner,
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` V.
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` REALTIME DATA, LLC
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` Patent Owner.
` _________________
`
` Case IPR2016-01737
`
` Patent 8,880,862 B2
`
` _________________
`
` DEPOSITION OF DR. GODMAR BACK
`
` November 2, 2017, 9:30 a.m.
`
` Hilton Garden Inn
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` 900 Plantation Road
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` Blacksburg, VA 24061
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`REPORTED BY: Mary J. Butenschoen, RPR, #44952
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`GregoryEdwards, LLC | Worldwide Court Reporting
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` 1
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`APPLE 1046
`Apple v. Realtime Data
`IPR2016-01738
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`
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`Dr. Godmar Back - November 2, 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
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` FISH & RICHARDSON P.C.
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` The McPherson Building
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` 901 15th Street, N.W., Suite 700
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` Washington, D.C. 20005
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` axf-ptab@fr.com
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` patrick@fr.com
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` schwentker@fr.com
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`ON BEHALF OF THE PATENT OWNER:
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` Joseph F. Edell
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` FISCH SIGLER LLP
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` 5301 Wisconsin Avenue, N.W.
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` Fourth Floor
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` Washington, DC 20015
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` joe.edell@fischllp.com
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`Dr. Godmar Back - November 2, 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 5
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`By Mr. Edell 162
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` * * * * *
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` E X H I B I T S
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`NUMBER DESCRIPTION PAGE
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`Exhibit 1 U.S. Patent No. 8,880,862 8
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`Exhibit 2 Motion to Amend in
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` Case IPR2016-01737 8
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`Exhibit 3 Motion to Amend in
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` Case IPR206-01738 8
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`Exhibit 4 Expert Declaration in Support
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` of Patent Owner's Reply 8
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`Exhibit 5 Expert Declaration in Support
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` of Patent Owner's Response 8
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`Dr. Godmar Back - November 2, 2017
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` E X H I B I T S (Continued)
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`NUMBER DESCRIPTION PAGE
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`Exhibit 6 Expert Declaration in Support
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` of Motion to Amend (1737) 40
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`Exhibit 7 Expert Declaration in Support
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` of Motion to Amend (1738) 40
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`Exhibit 8 Expert Declaration in Support
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` of Patent Owner's Response 76
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`Exhibit 9 U.S. Patent No. 6,374,353 139
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`Exhibit 10 U.S. Patent No. 6,317,818 140
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`Exhibit 11 U.S. Patent No. 6,434,695 155
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` *******
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`Dr. Godmar Back - November 2, 2017
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` P R O C E E D I N G S
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`Whereupon at 9:44 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:
`
` Q Good morning. Sorry about the noise.
`
`My name is Andy Schwentker. I'm from the law firm
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`Fish & Richardson in Washington, D.C.
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` Could you please state your name.
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` A My name is Godmar Back. First name
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`is spelled G-O-D-M-A-R, Godmar.
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` Q And how do you like to pronounce your
`
`last name?
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` A Back.
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` Q I understand you have been deposed
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`before so I won't waste a lot of time going over
`
`ground rules. But if you don't understand a
`
`question please let me know and I'll try to rephrase
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`it. And if you need a break please let me know and
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`Dr. Godmar Back - November 2, 2017
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`Page 6
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`I'll try to accommodate. Does that sound good?
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` A It does.
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` Q And you are still a professor at
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`Virginia Tech?
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` A I am, yes.
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` Q And did you do anything to prepare
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`for your deposition today?
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` A I did. I reread the declarations I
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`have submitted in this case, among others.
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` Q And what do you mean by among others?
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`Are you referring to other declarations or other
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`documents?
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` MR. EDELL: This is Joe Edell from
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` Fisch Sigler on behalf of the Patent Owner,
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` Realtime Data. I want to caution Doctor
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` Back to not reveal any conversations you
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` had amongst counsel, but you can answer the
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` question by identifying documents you
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` recall that you reviewed in order to answer
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` Mr. Schwentker's question.
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` THE WITNESS: Yes, I reviewed and
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` reread additional documents, such as the
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`Dr. Godmar Back - November 2, 2017
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`Page 7
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` amended claims and questions, such as the
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` patent in question and a few other
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` documents.
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`BY MR. SCHWENTKER:
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` Q And by the patent in question, are
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`you referring to U.S. Patent Number 8,880,862?
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` A I think that's correct, the '862
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`patent.
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` Q Okay. So if we talk about the '862
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`patent, you'll know what I'm referring to?
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` A I do.
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` Q And you understand the Realtime Data,
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`LLC, claims to be the owner of the '862 patent?
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` MR. EDELL: Objection, form.
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`BY MR. SCHWENTKER:
`
` Q Is that correct?
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` A I am not certain about the legal
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`aspects of this, but I think this is the name that
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`appears on the patent.
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` Q If I refer to Realtime Data, LLC, as
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`Patent Owner, will you understand who I'm referring
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`to?
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`Dr. Godmar Back - November 2, 2017
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`Page 8
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` A I will.
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` (Deposition Exhibit 1 was marked for
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` identification.)
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`BY MR. SCHWENTKER:
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` Q Doctor Back, the court reporter has
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`handed you what's been marked as Exhibit 1. It's
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`also identified as Apple 1001. And do you see that
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`this is U.S. Patent Number 8,880,862?
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` A Yes, that's what it appears to be.
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` Q That's the '862 patent you were
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`referring to before?
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` A Yes, it is.
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` (Deposition Exhibits 2-5 were marked
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` for identification.)
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`BY MR. SCHWENTKER:
`
` Q I wanted to go ahead and introduce
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`several of the documents we're going to be talking
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`about today. So the court reporter has handed you
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`Exhibit -- a document marked as Exhibit 2, which is
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`Patent Owner's Motion to Amend in Case
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`IPR2016-01737. Do you see that?
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` A I see on the front page it says
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`Dr. Godmar Back - November 2, 2017
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`Page 9
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`IPR2016-01737.
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` Q And below that it says Patent Owner's
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`Motion to Amend?
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` A It does.
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` Q And is this one of the documents you
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`reviewed in preparing for your deposition?
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` MR. EDELL: And Doctor Back, I
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` caution you just answer yes or no.
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` THE WITNESS: Would it be possible to
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` look at the declaration that I've
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` submitted?
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`BY MR. SCHWENTKER:
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` Q Sure. Yeah, we'll get to that in
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`just --
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` A Okay. I think I did. Yes, I did
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`review this Patent Owner's Motion to Amend.
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` Q And if you could turn to, after page
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`26, there's a page marked "i" that has the title
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`Claimed Appendix at the top.
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` A I see that.
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` Q And it goes through page xii?
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` A Yeah, I see that.
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`Dr. Godmar Back - November 2, 2017
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`Page 10
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` Q Okay. And are these -- earlier you
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`said that you reviewed amended claims to prepare for
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`your deposition. Are these the amended claims, or
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`at least some of the amended claims, you were
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`referring to?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I think these pages
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` list the amended claims that are part of
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` this -- of the 1737 Motion to Amend.
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`BY MR. SCHWENTKER:
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` Q Okay. And you reviewed those for
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`your deposition?
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` A Yes, I did.
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` Q Okay, great.
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` Let's turn to the next exhibit, which
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`is marked as Exhibit 3. And this is a -- this is in
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`case IPR2016-01738, and it's another Patent Owner's
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`Motion to Amend. Do you see that?
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` A I see that the front page says Patent
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`Owner's Motion to Amend, and the number ends in
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`1738.
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` Q And did you review this document in
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`Dr. Godmar Back - November 2, 2017
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`Page 11
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`preparing for your deposition?
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` MR. EDELL: Same instruction, Doctor
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` Back.
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` THE WITNESS: Yes, I did review this
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` motion.
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`BY MR. SCHWENTKER:
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` Q And again, after page 22 there's a
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`claims appendix on page i through xi. Do you see
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`that?
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` A I do see that.
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` Q And are those the amended claims in
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`the 1738 proceeding that you reviewed in preparing
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`for your deposition?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I think those are the
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` amended claims at issue in the 1738.
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`BY MR. SCHWENTKER:
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` Q And just to make sure we're on the
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`same page, you've referred to the 1737 and 1738
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`proceedings. If we talk about those two
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`proceedings, will you understand that we're
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`referring to case IPR2016-01737 and case
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`Dr. Godmar Back - November 2, 2017
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`Page 12
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`IPR2016-01738?
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` A Yes, 1737 and 1738.
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` Q All right. Now, let's turn to
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`Exhibit 4 that the court reporter has handed you,
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`and that is in case -- case IPR2016-01737, and it's
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`titled Expert Declaration of Dr. Godmar Back in
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`Support of Patent Owner's Reply to its Motion to
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`Amend.
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` Do you see that?
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` A Yes, I see that on the front page.
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` Q Okay. So is this your Declaration in
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`Support of the Patent Owner's Reply to its Motion to
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`Amend in the 1737 proceeding?
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` A Yes, this is my Declaration in
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`Support of the Patent Owner's Reply to its Motion to
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`Amend.
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` Q And specifically in the 1737?
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` A In the 1737, correct.
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` Q And did you review this in preparing
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`for your deposition?
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` A Yes, I did.
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` Q Is there anything that you saw in
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`Dr. Godmar Back - November 2, 2017
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`Page 13
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`reviewing the declaration that was incorrect --
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` MR. EDELL: Objection, form.
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`BY MR. SCHWENTKER:
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` Q -- in your review?
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` A I did not see anything that was
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`incorrect, although I discovered a typo on page 6.
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`I misspelled "according". There should be 2 c's. I
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`apologize.
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` Q That's the only error you noticed
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`that you wanted to correct?
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` MR. EDELL: Objection, form.
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` THE WITNESS: I did not discover any
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` content I wish to correct.
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`BY MR. SCHWENTKER:
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` Q Okay, great. Thank you. All right.
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` Finally, turning to what the court
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`reporter has marked as Exhibit 5, on the front page
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`this also says Case IPR2016-01737, and it's titled
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`Expert Declaration of Dr. Godmar Back in Support of
`
`the Patent Owner's Response.
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` Do you see that?
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` A I see that it says that on the front
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`Dr. Godmar Back - November 2, 2017
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`Page 14
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`page.
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` Q Okay. And is this -- is this your
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`declaration that you submitted in support of the
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`Patent Owner's response in the 1737 proceeding?
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` A So this is -- appears to be a
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`declaration that I have submitted earlier in support
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`of the Patent Owner's response, but it is not a
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`document I have reviewed in preparation for today.
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` Q Okay. Have you reviewed it in the
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`past?
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` MR. EDELL: Objection, form. And
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` just, again, I'm going to caution you not
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` to reveal any discussions you had with
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` counsel.
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` THE WITNESS: This is not -- not
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` something I looked at for today. It's my
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` understanding that this is not something
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` that this deposition was about.
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`BY MR. SCHWENTKER:
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` Q Okay. But you did write this
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`declaration, correct?
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` A I did.
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`Dr. Godmar Back - November 2, 2017
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`Page 15
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` Q Are you -- is there anything that
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`you're aware of that you wish to correct in this
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`declaration?
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` A There's nothing that I would correct,
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`but, again, I did not review this document in
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`preparation for today's testimony.
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` Q Okay. So let's turn back to Exhibit
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`4, which is your Declaration in Support of Patent
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`Owner's Reply to its Motion to Amend.
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` A All right.
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` Q Yes. Could you turn to paragraph 3,
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`please.
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` A The paragraph that starts, In forming
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`my opinions?
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` Q Yes.
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` A Okay.
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` Q In that paragraph you state that
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`you've reviewed and considered materials identified
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`in your prior declaration of June 14, 2017, and
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`relevant portions of Apple's invalidity contentions
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`from the district court litigation.
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` Do you see that?
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`Dr. Godmar Back - November 2, 2017
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`Page 16
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` MR. EDELL: Objection, form.
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` THE WITNESS: Yes, that's what it
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` says in this paragraph.
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`BY MR. SCHWENTKER:
`
` Q Can you tell me which materials you
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`reviewed before signing this declaration?
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` A So as I stated in the declaration, I
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`reviewed and considered the materials identified in
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`the paragraph above. That's paragraph 2, and that
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`includes the Doctor Neuhauser's declaration, Exhibit
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`1030, the cross-examination testimony, the reply in
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`support of the Patent Owner's motion, and then there
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`was mentioned in the remainder of this paragraph.
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` Q Okay. Did you -- did the materials
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`you reviewed and considered include the '862 patent?
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` A So in this declaration I was asked to
`
`address the task whether the proposed amended claims
`
`find support in the specification of the '862
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`patent, and so I reviewed the specification of the
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`'862 patent in order to answer this question.
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` Q And did the materials you reviewed
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`include the references identified in Patent Owner's
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`Motion to Amend?
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` MR. EDELL: Objection to form.
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` THE WITNESS: Could you clarify
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` specifically which references you're
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` referring to that's in the 1737 Motion to
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` Amend?
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`BY MR. SCHWENTKER:
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` Q Yes. So referring to Exhibit 2,
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`which is the Patent Owner's Motion to Amend in the
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`1737 Proceeding, do you understand that this motion
`
`to amend identifies certain references?
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` MR. EDELL: Objection, form.
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` THE WITNESS: Again, could you be
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` more clear about are you referring to
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` Petitioner's references or references that
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` appear in the motion to amend? Which
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` specific references is your question about?
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`BY MR. SCHWENTKER:
`
` Q If you could turn to page 19 of the
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`Exhibit 2, the Patent Owner's Motion to Amend. And
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`the last line says -- and this goes over to page 20
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`as well. It says: The Petitioner in this
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`proceeding relies on five prior references.
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`Sukegawa, Dye, Settsu, Burrows and Zwiegincew.
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` Do you see that?
`
` A Yes, I see that.
`
` Q So did you review and consider those
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`references in drafting your Declaration in Support
`
`of Patent Owner's Reply to its Motion to Amend?
`
` MR. EDELL: Objection, form.
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` THE WITNESS: So those are the
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` references that I considered -- may have
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` considered in the declaration I submitted
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` in support of the motion to amend, but I
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` don't think I'm stating this in the
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` declaration that I submitted in support of
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` the Patent Owner's reply, which is a later
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` declaration.
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`BY MR. SCHWENTKER:
`
` Q But have you -- have you reviewed
`
`those references?
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` MR. EDELL: Objection, form.
`
` THE WITNESS: I have reviewed them.
`
`BY MR. SCHWENTKER:
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`Page 19
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` Q You're familiar with them?
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` A I am.
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` Q And if you could turn to page 24 of
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`Exhibit 2. There's a section B and below that the
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`first paragraph says: Beyond the above references,
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`four material references were at issue during the
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`prosecution of the '862 patent and the applications
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`to which it claims priority: U.S. Patents 6,539,456,
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`which is called Stewart, 6,173,381, which is called
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`Dye, 6,434,695, which is called Esfahani, and 603 --
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`excuse me, 6,073,232, and we just call it Kroeker.
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` Do you see that?
`
` A I see where that has spelled out.
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` Q Have you reviewed the Stewart, Dye,
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`Esfahani, and Kroeker references identified here?
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` MR. EDELL: Objection, form.
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` THE WITNESS: So I have reviewed them
`
` to the extent to answer the question
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` whether the proposed amended claims in the
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` 1737 and 1738 proceedings are patentable
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` over these references.
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`BY MR. SCHWENTKER:
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`Page 20
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` Q So you are familiar with those
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`references.
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` A To the extent that it concerns the
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`patentability of the proposed amended claims.
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` Q All right. Now, turning back to
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`Exhibit 4. I apologize about all the papers.
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`Looking at Exhibit 4, which is your -- again, your
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`Declaration in Support of the Patent Owner's Reply
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`to its Motion to Amend, could you turn to paragraph
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`6, please?
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` A Starting with, My professional
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`background and curriculum vitae?
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` Q Oh, I'm sorry, strike that.
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` Sorry. So earlier you said that you
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`did review the '862 patent in preparing this
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`declaration; is that right?
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` A That's correct.
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` Q When you read the '862 patent, did
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`you understand its contents?
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` A I did.
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` Q Was there anything in the '862 patent
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`that you didn't understand?
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` A Not that I am aware of.
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` Q Was there anything in the '862 patent
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`you didn't understand how to implement?
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` MR. EDELL: Objection, scope.
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` THE WITNESS: So I was not
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` specifically asked to address the
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` feasibility of the implementation of the
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` patent.
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`BY MR. SCHWENTKER:
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` Q Are you familiar with the System's
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`Architecture Section of the '862 patent?
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` MR. EDELL: Objection, form.
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` THE WITNESS: Could you point me out
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` the section you're referring to?
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`BY MR. SCHWENTKER:
`
` Q Sure. Let's turn to Exhibit 1, which
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`is the '862 patent. And if you turn to column 5.
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` A I have column 5.
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` Q Okay. Around line 27 or so there's a
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`section titled System Architectures. Do you see
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`that?
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` A Yes, I see that. I'm familiar with
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`Page 22
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`that section.
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` Q Okay. And I believe this section
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`goes from column 5, line 27, through column 11, line
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`60.
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` A Yes, it does.
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` Q So you're familiar with the section?
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` A I am.
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` Q If you turn back to column 5, lines
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`28 through 32 right under the heading System
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`Architectures, states that, The present invention is
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`directed to data storage controllers that provide
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`increased data storage/retrieval rates that are not
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`otherwise achievable using conventional disk
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`controller systems and protocols to store/retrieve
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`data to/from mass storage devices.
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` Do you see that?
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` A Yes, that's what it says here.
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` Q Do you understand that the amended
`
`claims use the word "preloading"?
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` MR. EDELL: Objection, form.
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` THE WITNESS: Which of the amended
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` claims are you asking about? Because I
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`Page 23
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` don't think they all do.
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`BY MR. SCHWENTKER:
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` Q Are you distinguishing between
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`independent and dependent claims?
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` MR. EDELL: Objection, form.
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` THE WITNESS: My question was asking
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` when you say "the amended claims" I wanted
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` to make sure I'm -- you and I are talking
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` about the same amended claims.
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`BY MR. SCHWENTKER:
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` Q All right. Do you have an
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`understanding of which claims use the word
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`"preload", which of the amended claims use the word
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`"preloading"?
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` MR. EDELL: Objection, form.
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` Objection, scope.
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` THE WITNESS: I can -- I can double
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` check if you would like me to look at the
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` proposed amended claims to see which ones
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` do.
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`BY MR. SCHWENTKER:
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` Q Sure. And that would be in Exhibits
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`Page 24
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`2 and 3?
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` A You are talking about the 1737 or 38?
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` Q Both.
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` A So the 1737 Amended Claim 118 uses
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`the claim terms "preloading" and "preloaded." So
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`does Amended Claim 122. As does Amended Claim 124.
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`The term also appears in Claim 133. The term
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`appears in Claim 145. Also in 157.
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` So those appear to be the occurrences
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`in the 1737. I'm now looking at the 1738.
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` Q Before you turn to 1738, let me ask
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`one follow-up question about 1737. I believe you
`
`identified all of the independent amended claims; is
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`that correct?
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` MR. EDELL: Objection, form.
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` THE WITNESS: So I am not certain if
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` the term "preloading" or "preloaded" occurs
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` only in the independent claims or also
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` dependent claims. I am not certain. I
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` would have to carefully check.
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`BY MR. SCHWENTKER:
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` Q But at a minimum it appears in all of
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`the independent amended claims. Is that accurate?
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` MR. EDELL: Objection, form.
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` THE WITNESS: My understanding is
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` certain independent claims at issue in the
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` 1737. This is 118 is one of them, it does
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` appear there. And 122 I believe is also an
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` independent claim, and it appears there as
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` well. Claim 124 is also independent claim,
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` and it appears there as well.
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` But here Claim 133 is dependent
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` claim; it appears there as well.
`
`BY MR. SCHWENTKER:
`
` Q Okay. So it appears in -- the word
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`"preloading" or "preloaded" appears in at least one
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`dependent claim, but it also appears in all of the
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`independent amended claims; is that correct?
`
` MR. EDELL: objection, form.
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` THE WITNESS: It -- it appears in at
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` least one dependent claim and it appears to
`
` appear in all the independent claims that
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` are at issue in the 1737.
`
`BY MR. SCHWENTKER:
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` Q And then let's turn to Exhibit 3 from
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`the 1738 proceeding. And if you could do the same
`
`that you just did for the 1737.
`
` A Okay. So I'm going to talk about
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`dependent and independent. Claim 174 is an
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`independent claim and it includes the term
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`"preloading". Claim 177 -- or Amended Claim 177 is
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`an independent claim and it includes the term
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`"preloading". Amended Claim 179 is an independent
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`claim and it includes the term. Claim 196 is a
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`dependent claim and it includes the term
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`"preloaded". And I think that's it. So all the
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`independent claim and at least some dependent claims
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`include that term.
`
` Q Okay, great. Thank you.
`
` A Amended claims.
`
` Q Yes, thank you.
`
` So turning back to the '862 patent
`
`and the portion in column 5 we were talking about
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`in -- right under System Architectures.
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` Let's see, is it your opinion that
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`the -- that the claimed preloading in the amended
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`claims is made possible through use of a data
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`storage controller similar to that described by the
`
`'862 patent in the System Architectures section?
`
` MR. EDELL: Objection, form.
`
` Objection, scope.
`
` THE WITNESS: Yes, sir, that's
`
` correct. Refer you to paragraph 9 in the
`
` Declaration in Support of the Patent
`
` Owner's Reply, I state that the data
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` storage controller can proceed to preload
`
` the portions of the computer operating
`
` system from the boot device.
`
`BY MR. SCHWENTKER:
`
` Q Further down in column 5 of the '862
`
`patent starting at line 63 and then going through
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`column line -- column 6, line 53 or so, the '862
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`patent addresses figure 1 which is described as
`
`illustrating a data storage controller 10 according
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`to one embodiment of the present invention.
`
` Are you familiar with figure 1?
`
` MR. EDELL: Objection, form.
`
` THE WITNESS: I think figure 1 is
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` referring to this -- figure 1 in the
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` patent.
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`BY MR. SCHWENTKER:
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` Q And are you familiar with that
`
`figure?
`
` MR. EDELL: Objection, form.
`
` THE WITNESS: Yes, I am.
`
`BY MR. SCHWENTKER:
`
` Q Looking at column 5 starting at line
`
`63 through column 6, line 3, the '862 patent
`
`describes the data storage controller 10 as
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`comprising -- and I'll read from starting at line 66
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`here: A data compression engine 12 for
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`compressing/decompressing data (preferably in
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`realtime or pseudo realtime) stored/retrieved from a
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`hard disk 11 (or any other type of mass storage
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`device) to provide accelerated data
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`storage/retrieval.
`
` Do you see that?
`
` A Yes, I -- that is what it says here.
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` Q In your opinion, does the described
`
`data storage controller 10 correspond to the boot
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`device controller of the amended claims?
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` MR. EDELL: Objection, scope.
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` Objection, form.
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` THE WITNESS: So in my declaration I
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` don't directly refer to figure 1 in the
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` '862 patent. I think figure 1 illustrates
`
` one embodiment of the invention claimed by
`
` the '862 patent.
`
`BY MR. SCHWENTKER:
`
` Q Okay. In that embodiment is it your
`
`opinion that the data storage controller 10 that's
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`described corresponds to the boot device controller
`
`of the amended claims?
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` MR. EDELL: Objection, scope.
`
` Objection, form.
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` THE WITNESS: I think it would be one
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` example as envisioned by the specification
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` of the '862.
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`BY MR. SCHWENTKER:
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` Q Are there other examples envisioned
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`by the specification of the '862 patent?
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` A Yes. The s
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