`In the Matter of:
`
`Digital Check Corp. d/b/a ST Imaging
`vs.
`e‐ImageData Corp.
`
`___________________________________________________
`
`Jonathan D. Ellis
`October 13, 2017
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`___________________________________________________
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`Page 1 of 48
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`DIGITAL CHECK CORP. EXHIBIT 1012
`Digital Check Corp. v. e-ImageData Corp.
`IPR2017-00177
`
`
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`Jonathan D. Ellis 10/13/2017
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`DIGITAL CHECK CORP.
`d/b/a ST IMAGING,
`
` Petitioner,
`
` vs. Case IPR2017-00177
` Patent 8,537,279
` Case IPR2017-00178
` Patent 9,179,019
`
`E-IMAGEDATA CORP.,
`
` Patent Owner.
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
` Deposition of JONATHAN D. ELLIS
` Friday, October 13, 2017
` 9:05 a.m. to 10:03 a.m.
`
` Reported by Jennifer M. Steidtmann, RPR, CRR
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`800-868-0061
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`DTI Court Reporting Solutions - Chicago
`www.deposition.com
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`Page 2 of 48
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`Jonathan D. Ellis 10/13/2017
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`Page 2
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` A P P E A R A N C E S
`
`FOR THE PETITIONER:
` K&L GATES
` Mr. Jason A. Engel
` Ms. Kacy L. Dicke
` 70 West Madison Street, Suite 3100
` Chicago, Illinois 60602-4207
` jason.engel@klgates.com
` kacy.dicke@klgates.com
` 312-372-1121
`
`FOR THE PATENT OWNER:
` QUARLES & BRADY LLP
` Ms. Johanna M. Wilbert
` Mr. Michael T. Piery
` 411 East Wisconsin Avenue, Suite 2350
` Milwaukee, Wisconsin 53202
` johanna.wilbert@quarles.com
` michael.piery@quarles.com
` 414-277-5367
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`800-868-0061
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`DTI Court Reporting Solutions - Chicago
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`Jonathan D. Ellis 10/13/2017
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` I N D E X
` WITNESS EXAMINATION PAGE
`JONATHAN D. ELLIS
` EXAMINATION BY MR. ENGEL 4
`
` E X H I B I T S
` NUMBER PAGE IDENTIFIED
` Exhibit No. 1011 Excerpt of Fundamentals of 32
` Machine Design textbook
` (Original exhibit attached to original
` transcript; copies provided to attorneys ordering
` exhibit copies.)
`
` R E Q U E S T S
` REQUEST PAGE
` (No requests to produce documents were made.)
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` TRANSCRIPT OF PROCEEDINGS
` JONATHAN ELLIS, called as a witness herein,
` having been first duly sworn on oath, was examined
` and testified as follows:
` EXAMINATION
` BY MR. ENGEL:
` Q Good morning, Dr. Ellis.
` A Good morning.
` Q Have you ever been deposed before?
` A Yes.
` Q How many times?
` A This is my third deposition, I believe.
` Q And all for litigations involving E-Image?
` A Yes, that's correct.
` Q Have you ever done any expert work other than for
` E-Image?
` A I was recently retained in a different case for
` Wisely versus TeleBrands I believe it's called.
` Q Okay. And what does that case involve?
` A It's -- it's like a laser show device thing for, you
` know, clubs that you shine on the walls and shows
` images.
` Q Other than that, any other expert engagements?
` A No.
` Q Your counsel's probably explained this to you, and
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` since you've been deposed before I am sure you
` understand the ground rules. The biggest thing for
` me today is if you don't understand a question I ask,
` please let me know.
` A I will do so.
` Q If you answer it, I have to assume that you
` understood the question; is that fair?
` A That's fair.
` Q And for the court reporter's sake, just try to make
` sure we don't talk over each other, and also give
` your counsel an opportunity to object if she wants to
` object.
` A Okay.
` Q You understand you're here today to be cross-examined
` with respect to two declarations you submitted with
` respect to two inter partes review proceedings?
` A Yes, that's correct.
` Q And in connection with that, you submitted two
` declarations, and you attached a copy of your CV as
` an exhibit --
` A Yes.
` Q -- do you recall that?
` I don't want to spend a lot of time with
` your CV, but at the time you submitted it, it was
` accurate and -- to the best of your knowledge?
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` A At the time it was submitted, yes.
` Q So this engagement with TeleBrands, that came up
` after these declarations were submitted?
` A Yes. That's correct.
` Q Your rate I believe you said was $400 an hour?
` A Yes. That's correct.
` Q And is that the rate you're charging in the
` TeleBrands matter as well?
` A Yes. That's correct.
` Q You have a -- what's your doctorate degree in?
` A It's technically in mechanical engineering.
` Q And did you have a thesis that you submitted with
` your doctorate?
` A Yes.
` Q What was that?
` A It's listed in my CV. It's on -- I'm forgetting the
` title, but it's on dimensional metrology, so using
` light to make very precise measurements of features
` of size.
` Q And when you say metrology, is your -- most of your
` work in your career been with metrology and measuring
` instruments?
` A It's largely been in metrology instruments, so I -- I
` view myself as an instrumentation person. So if some
` scientist needs some crazy instrument to do X, Y, Z,
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` I'm the type of person to build that instrument.
` Q Do you have experience designing copiers at all?
` A Explicitly copiers, no.
` Q What about scanners?
` A Scanners in other contexts, yes. So for things where
` you need to image something or you need to move
` components and take images or move components and
` perform some function, yes.
` Q Okay. What about, like, microform scanners?
` A I have not explicitly designed any microform
` scanners, but I would say through the expert work
` that I've done as part of this case and the previous
` case, that I've looked fairly in-depthly at scanners.
` I've had to take them apart, understand their
` operation, understand their signal processing. So
` while I haven't designed any explicitly, I think I
` have enough experience in that area.
` Q Does your experience working with non-microform
` scanners help at all with understanding of how a
` microform scanner would work?
` A Yes. I mean, the underlying principles are the same,
` so whether it's scanning microfilm or in some of the
` work that we do trying to scan a piece of tissue and
` take images of it, it's -- the principles are the
` same, it just depends on what the actual objects are
`
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`Jonathan D. Ellis 10/13/2017
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` in -- of interest.
` Q Now you'll have to forgive me because I'm an
` electrical engineer by trade, so I have limited
` mechanical engineering experience, but I wanted to
` ask you about some general, I believe, mechanical
` engineering concepts and see if you have an
` understanding of them.
` Have you ever heard the term synchronous
` belt before?
` A Yes.
` Q And what is a synchronous belt?
` A Synchronous belt is -- is -- it's generally something
` that is going to make multiple components move
` simultaneously. So synchronous means you're going to
` have components that are going to move sort of in
` lock step with each other.
` Q Would this be accurate that it's something that's
` used to transfer direct motion for indexing purposes?
` Does that sound like an accurate description?
` A I don't know what you mean by indexing purposes,
` so --
` Q What about used to transfer direct motion for timing
` purposes?
` A Yes.
` Q And what's the nature of the synchronous belt? What
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` does it look like?
` A I -- it depends on the setup. So I am -- just
` completely off the cuff, I can't give you an accurate
` description just thinking right now.
` Q Does the synchronous belt typically have teeth or
` some type of engagement mechanism on it?
` A I would think most of them would have some gearing
` and some tooth belt that's going to engage the teeth
` on the belt, and that's going to provide the motive
` or force.
` Q Have you ever heard of a cogged belt before?
` A Cogged?
` Q Cogged.
` A I've heard of one, yes.
` Q And what's your understanding of what that is?
` A I -- limited understanding of a cog belt. I don't
` know what -- I've heard the term, I've not used one.
` Q Okay. Is the timing belt an example of a synchronous
` belt?
` A I think it depends on the context and how it's used.
` Q Okay. Have you ever heard of a timing belt before?
` A Sure. Like a timing belt in a car, yes.
` Q And those have teeth on it?
` A Yes.
` Q And when you think of a timing belt, do you think of
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` a tooth belt?
` A Yes.
` Q One of the things in here, I don't want to -- I'm
` going to hand you your declarations in case you want
` to refer to them.
` A Okay.
` Q So I'm going to hand you what's been marked as
` Exhibit 2005 from IPR2017-00177 with respect to the
` '279 patent, and similarly marked Exhibit 2005 for
` IPR2017-00178 for the '019 patent.
` Now, if you could open -- I don't know if
` they're the same, but let's do the '279 patent. So
` Exhibit 2005 from IPR -177, and if you could go to
` paragraph 44.
` A I'm here.
` Q And you have a statement here, the first sentence, it
` says, a person of ordinary skill in the art would
` have recognized that none of the references at issue
` in this proceeding disclose the use of a smooth belt
` to position a lens relative to a sensor along the
` optical path. Do you see that?
` A Yes, I see that.
` Q And I was wondering why that statement was important
` for the opinions you've offered today?
` A In the context of the claims at issue here and the
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` prior art, the question at hand is whether a person
` of ordinary skill in the art at the time of the
` invention is going to combine some of the
` shortcomings of one of the prior art references with
` some of the other ones; and in the context of the
` microform scanning and digital microform imaging
` apparatuses, they're not doing that. And so that's a
` clear distinction, and so I tried to highlight that
` in my declaration.
` Q Yeah. But I guess what I was focusing on, you
` highlighted on moving the lens relative to the
` sensor, and I guess my question for this patent
` specifically, the changed claims don't require moving
` the lens at all. So I guess I'm just wondering why
` that's important?
` A Oh, okay. So in any sort of imaging apparatus, you
` need to make sure that the object that you're trying
` to image, the lens and whatever you're trying to put
` that image on, be it film or in this case an imaging
` sensor, is located precisely. So whether you move
` the lens or whether you move the object or whether
` you move the sensor or film, all of those need to be
` positioned accordingly.
` So in the context of this sentence here,
` it can be moving the lens relative to the sensor, it
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` could be moving the sensor relative to the lens, it
` could be moving both of those relative to the
` microfilm. All of those are sort of interchangeable.
` Q But you'd agree that you could in a microform
` apparatus move the sensor with a smooth belt and then
` move the lens with a tooth belt or a lead screw?
` A No, because that's the same type of issue that you're
` going to have here. If you move a lens with a smooth
` belt in -- in the context of these prior arts, you're
` still going to run into the same issue that the
` smooth belt is not going to give you the required
` resolution. So whether you move the lens with it and
` you move the sensor with something else, or you move
` the sensor with it and you move the lens with
` something else, it's still going to have that same
` issue.
` Q Okay. Well, let's turn to page 19 of your
` declaration, and paragraph 38 talks about Claim 44,
` which is one of the challenged claims at issue in
` this proceeding. And if you go to the last element,
` it talks about a first motor coupled to the first
` carriage via first belt. Do you see that?
` A Yes.
` Q And that's the belt that moves the sensor in this
` claim?
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` A Ultimately that's the belt that the moves the sensor
` in this claim, yes.
` Q And does it specify what type of belt is necessary
` for this?
` A In this claim it is not specifying which type of
` belt.
` Q So you could use a smooth belt and satisfy this
` claim?
` A I don't believe that's the case.
` Q There's no claim construction for belt in this that
` says the belt must be toothed, is there?
` A No, there isn't. But in the context of when -- when
` you take the patent as a whole, you know, in the
` images that it describes, it's showing a tooth belt,
` and so that's where that assumption comes into play.
` Q The images aren't toothed. It says it can be a tooth
` belt, but it doesn't depict a tooth belt in the
` patent?
` A I don't know. I would have to have the patent in
` front of me to be able to see.
` Q Okay. And I think when it's talking about a tooth
` belt in the patent, it's talking about the belt that
` drives the gear on the lead screw, right?
` A Now you're asking me from memory, and I -- I -- I
` don't know from memory.
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` MR. ENGEL: Do we have a copy of one the
` patents?
` BY MR. ENGEL:
` Q I'll hand you the '279 patent, Exhibit 1001 from the
` -177 proceeding, I believe. Figure 9 is probably a
` good figure to look at. I guess there's three belts
` depicted there, Belt 112, 104, and 122?
` A Yes.
` Q And there's no teeth depicted on the actual belts
` themselves, is there?
` A There's no teeth depicted on the actual belts
` themselves, but there's teeth depicted on -- on the
` gears, and so it wouldn't make sense for you to use a
` smooth belt and a -- a gear in combination. It just
` doesn't make any sense.
` Q Okay. But the teeth themselves aren't -- you can't
` see them in this picture, can you, the teeth on the
` belt?
` A In -- in the picture they're not depicted, but I
` think a person of ordinary skill in the art is going
` to look at this and say, okay, there's gears
` associated on here and they're probably going to
` match up with teeth on a belt, they're just not
` drawn. And I know from experience of drawing my own
` patent figures that sometimes things are left out
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` explicitly of the figures.
` Q And similarly, for example, if it would have
` described 102, which is on the right-hand side,
` that's a gear. If it would have said Gear 102 and
` there aren't teeth on the gear, you would understand
` that a gear has teeth on it, right?
` A If it was described as a gear, yes.
` Q Now the belts that are in Figure 9, there's three of
` them, two of them drive the lead screws and one of
` them rotates the area sensor; is that an accurate
` statement?
` A Ultimately, yes. Two of them drive the lead screws
` and one of them drives the area sensor.
` Q Okay. Now in the -- the patent itself, there isn't a
` figure that depicts moving the carriage with a belt
` without a lead screw, is there?
` A Can you repeat the question?
` Q Sure. So I've looked through this patent a lot, and
` I think the embodiment that's depicted, the carriages
` move with lead screws. The lead screws are driven by
` belts, but there isn't a figure that kind of goes to
` Claim 44 where the first carriage is coupled to the
` motor via a belt for moving it. So there's not an
` embodiment where the carriage moves along a belt
` depicted in the patent, unless you're -- are you
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` aware of an embodiment in the figures that shows
` that?
` A Yeah, but in Claim 44 they're not discussing
` explicitly all of the components that are involved.
` They're saying the first motor is coupled to first
` carriage via a first belt. So somewhere between the
` first motor and the first carriage, there has to be
` coupling with a first belt, and that has to provide a
` range of motion.
` Q So as long as there's a belt somewhere in the
` equation, that would satisfy this claim?
` A I think the transmitted force between the motor to
` effect the motion of the carriage has to go through
` the belt.
` Q Okay. So you think Claim 44 would cover the --
` what's depicted in Figure 9?
` A Yes, that's correct.
` Q So one of the things -- and the reason I asked you is
` because there is a part in the patent where it talks
` about replacing the lead screws with belts. It was
` my understanding that's what Claim 44 was trying to
` get after was replacing the lead screw with a belt
` for driving, but I guess that's not your opinion?
` A Which part are you referring to?
` Q Sure. So if you go to the patent, you go to column
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` six, lines 19 to 25. So it says the lead screws
` serve a dual function of providing guiding elements
` as well as drive elements for the lens and sensor
` carriages. It is contemplated that the present
` invention concluded alternate designs which can
` separate these two functions of guiding and driving
` using, for example, rails or unthreaded rods or a
` combination thereof for guiding and a belt or a
` rack-and-pinion arrangement or a combination thereof
` for driving.
` A So, yes, I agree that's what it states there. Can
` you state your question again?
` Q Sure. So -- so when I read Claim 44, I thought it
` was trying to cover the alternate embodiment where
` you have a guide rail and a belt that drives the
` carriage, but you don't read it that way?
` A I -- I think I read Claim 44 to say that if the
` motor -- the motion of the motor ultimately causes
` motion to the carriage and the method of force
` transfer in the system has to go through the belt,
` and so whether that's driving the belt directly and
` the belt drives a lead screw that then causes the
` carriage to move, or whether the motor is connected
` somehow to the first belt, and that directly causes
` the carriage and the carriage is supported via some
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` other means. So long as the method of force from the
` motor is transmitted through the belt, then that
` satisfies that claim.
` Q Okay. In Figure 9, would you say that the carriage
` is sliding the couple to the lead screw?
` A Can you be more specific as to which lead screw
` you're talking about?
` Q Sure.
` A Because there's two lead screws in the device.
` Q I think it could be for either carriage, but let's go
` with the sensor carriage, which --
` A And which lead screw, because there's two lead
` screws?
` Q Let's say -- I forget which one drives it because I
` believe the way this works is one drives one
` carriage, the other drives the other carriage, and
` then there's a collar that lets it pass through on
` the other one. Is that --
` A That's my understanding as well --
` Q Okay.
` A -- that the motion of one lead screw drives one
` carriage. The motion of the other lead screw drives
` the other carriage, yes.
` Q Right. And I don't recall which one drives the first
` carriage, but let's assume 88 drives the first
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` carriage. Is the -- is the screw that drives it,
` would you consider it to be sliding the couple to the
` screw that drives the carriage?
` A You're asking -- so just so the assumptions are
` correct, you're assuming 88, which is a lead screw,
` and I don't know what number this carriage is, but
` the carriage that holds the sensor, you're asking if
` it's sliding the couple between those two?
` Q Yes.
` A In a manner of speaking, it is sliding the couple
` because the gears are going to slide and slip inside
` of the -- not the gears. The -- the teeth on the
` lead screw are going to slide as it translates.
` There has to be friction there of some sort,
` otherwise it's not going to affect motion.
` Q Now going back to -- going back to column six, if we
` could, in that same passage, lines 19 to 25 where it
` talks about an alternate embodiment where you could
` drive it with a belt.
` A Yep.
` Q And that -- you understand that would replace the
` lead screws in that embodiment?
` A Depending on -- on how it's set up, yes.
` Q Okay. And it doesn't say that the belt must be
` toothed there, does it?
`
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` A It does not explicitly say it has to be toothed.
` Q Okay. But would you understand, because it's an
` imaging apparatus, that you would have to use a tooth
` belt to drive these components to get that precision?
` A Yes. That's correct.
` Q And that's something you understand from your
` experience working with, I guess, scanning equipment,
` right?
` A I -- I think of it in terms of -- for the analysis in
` this case, in terms of a person of ordinary skill in
` the art. If you look at the prior references or the
` prior art and what they're using to affect changes in
` the focal path, they're using, you know, geared
` systems or tooth belt-type stuff or lead screws
` ultimately. They're not using smooth belts, and so
` it's -- it's not whether -- what I would do, it's
` what would a person of ordinary skill in the art do.
` Q And one of the references -- so, I believe this is
` Exhibit 1005 from both of the proceedings. It's the
` Kokubo patent, U.S. Patent No. 5,585,937, and this is
` one of the references you were talking about when you
` were talking about the prior art references?
` A Yes. That's correct.
` Q And in Kokubo, the belt that you're talking about, I
` don't know the best figure to look at it, I'm going
`
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` to guess it's Figure 1 or Figure 4. Can you tell me
` which one you think is the better one to look at?
` A Probably Figure 1.
` Q Okay. And so the belt you're talking about is the
` belt as identified as 10; is that correct?
` A Yes. That's correct.
` Q Okay. And I believe -- let's see. 7-A is talked
` about as a drive gear in the patent?
` A Can you point to where that says that?
` Q Sure. Column 9, line 11. Talks about a Motor 7
` provided with the Drive Gear 7-A.
` A Yes.
` Q Okay. So in Figure 1, 7-A is not shown. At least I
` can't see that there are teeth on that drive gear.
` A I -- I would agree with that.
` Q But because it's called a drive gear, you would
` understand there are teeth on that gear, right?
` A Yes.
` Q Okay. Now this Belt 10, this ultimately moves the --
` the sensor across the image to scan the image line by
` line; is that accurate?
` A It moves -- ultimately it moves such that it's moving
` lateral to the optical axis. It's not moving along
` the optical axis.
` Q And as it moves, it scans and then moves to another
`
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` position and scans and keeps --
` A What do you mean by scans in this context?
` Q What's your understanding of how the apparatus in
` Figure 1 scans an image?
` A I would call it akin to a flatbed scanner. A
` document or picture is placed down and the reading
` unit, I think they call it the reading unit, which is
` 6, moves underneath and images are recorded on a line
` sensor, and then it is stepped in a lateral
` direction, and then another line sensor image is
` recorded and so forth.
` Q Okay. And don't you need precision to be able to
` scan that image line by line as you move down?
` A It depends on the -- how the optical system is set
` up.
` Q Okay. But if you're using a smooth belt as you said
` and smooth belts are prone to slippage, you know,
` wouldn't it be a problem that as you're moving down
` you would have problems with your scanning if the
` belt slipped?
` A Yes. And in fact, that's one of the things that they
` point out as an issue here, that you can get
` distortion in the image when you do that.
` Q Yeah. That was in the prior art system that they're
` improving over, though?
`
`800-868-0061
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` A Right. So I don't -- I don't see how this is going
` to mitigate that effect in the grand scheme of
` things.
` Q Well, it's easy. In the prior art they were talking
` about a wire rope that might slip, right?
` A Yes.
` Q And the way they solved it was using a timing belt,
` right?
` A The way they solved it here is -- in this context I
` believe was not having two wire ropes on opposite
` sides. They only have it on one side.
` Q Yeah. So they have a guide element on one side,
` right?
` A Yes. That's correct.
` Q And they have a belt, which is not a rope, right?
` A It depends on what type of belt you're talking about.
` If it's a smooth belt, it's just the profile -- I
` mean, when we think of a rope, we think of a rope as
` being -- having a circular diameter. A belt we think
` of having a flat profile.
` Q Okay. Well, I think you had an opinion and the board
` had an opinion that a wire is not a belt. So are you
` saying that a wire could be considered a belt now?
` A For -- for the context of -- of my analysis, a wire
` is not a belt, that's -- yes.
`
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` Q Okay.
` A That is correct.
` Q Okay.
` A I want to make sure I'm self-consistent.
` Q Okay. So in Figure 1, they've improved on the prior
` art by adding a guide element on one side, and
` they've also improved on it by replacing the wire
` rope with a belt, right?
` A I -- I have not analyzed the Kokubo reference in
` context of its own prior art references, so I don't
` know if it has improved over what it has said it was
` improved over. I'm taking at face value that it says
` it's an improvement.
` Q Well, I just want to understand that when you were
` talking about belts can slip, it wasn't belts can
` slip, it was the prior art which it described as a
` wire rope could slip, right?
` A No. I'm talking about that if you have -- if it does
` not have some form of teeth on the belt or gears
` associated with it, then there is the potential for
` it to slip.
` Q Okay. Where in the Kokubo patent does it say that
` Belt 10 is smooth?
` A I go through the images and how they've described
` things. If you look at how the gears are set up
`
`800-868-0061
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` between this motor, for i
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