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` ALBERT H. TITUS, Ph.D.
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`APPLE INC., * Case IPR2017-00318
` Petitioner, *
`V. * U.S. Patent No. 8,886,269
`VALENCELL INC., *
` Patent Owner. *
`
`*****************************************************
` ORAL AND TELEPHONIC DEPOSITION OF
` ALBERT H. TITUS, Ph.D.
` NOVEMBER 9, 2017
`*****************************************************
`
` ORAL AND TELEPHONIC DEPOSITION OF ALBERT H. TITUS,
`Ph.D., produced as a witness at the instance of the
`Petitioner, taken in the above-styled and -numbered cause
`on the 9th day of November, 2017, A.D., beginning at 9:59
`a.m. to 5:50 p.m., before Kelly Hassell, RPR, CLR, CSR, in
`and for the State of Texas, in the offices of Bragalone
`Conroy, PC, located at Chase Tower, 2200 Ross Avenue, Suite
`4500 West, Dallas, Texas, in accordance with the Federal
`Rules of Civil Procedure and the agreement hereinafter set
`forth. JOB NO: 133507
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`APL1100
`Apple v. Valencell
`IPR2017-00318
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` ALBERT H. TITUS, Ph.D.
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`APPLE INC., * Case IPR2017-00318
` Petitioner, *
`V. * U.S. Patent No. 8,886,269
`VALENCELL INC., *
` Patent Owner. *
`
`*****************************************************
` ORAL AND TELEPHONIC DEPOSITION OF
` ALBERT H. TITUS, Ph.D.
` NOVEMBER 9, 2017
`*****************************************************
`
` ORAL AND TELEPHONIC DEPOSITION OF ALBERT H. TITUS,
`Ph.D., produced as a witness at the instance of the
`Petitioner, taken in the above-styled and -numbered cause
`on the 9th day of November, 2017, A.D., beginning at 9:59
`a.m. to 5:50 p.m., before Kelly Hassell, RPR, CLR, CSR, in
`and for the State of Texas, in the offices of Bragalone
`Conroy, PC, located at Chase Tower, 2200 Ross Avenue, Suite
`4500 West, Dallas, Texas, in accordance with the Federal
`Rules of Civil Procedure and the agreement hereinafter set
`forth. JOB NO: 133507
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` ALBERT H. TITUS, Ph.D.
` A P P E A R A N C E S
`FOR THE PETITIONER:
` MR. MICHAEL SPECHT, ESQ.
` MR. KAVON NASABZADEH, ESQ.
` MR. JASON FITZSIMMONS, ESQ. (Via telephone and realtime.)
` Sterne Kessler Goldstein & Fox
` 1100 New York Avenue
` Washington, DC 20005
`
`FOR THE PATENT OWNER:
` MR. T. WILLIAM KENNEDY, ESQ.
` Bragalone Conroy
` Chase Tower
` 2200 Ross Avenue
` Suite 4500 West
` Dallas, TX 75201
`
`ALSO PRESENT:
` MR. RYAN SCHLETZBAUM - (Via telephone and realtime.)
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` ALBERT H. TITUS, Ph.D.
` I N D E X
`Appearances...................................... Page 2
`Stipulations..................................... Page 187
`Direct Examination by Mr. Specht................. Page 4
`Cross-Examination by Mr. Kennedy................. Page 186
`Reporter's Certificate........................... Page 188
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` ALBERT H. TITUS, Ph.D.
` P R O C E E D I N G S
` ALBERT H. TITUS, Ph.D.,
`having been first duly cautioned and sworn to testify the
`truth, the whole truth and nothing but the truth, testified
`on his oath as follows:
` DIRECT EXAMINATION
`BY MR. SPECHT:
` Q Good morning, Dr. Titus.
` A Good morning.
` Q Can you state your name -- your full name for the
`record, please.
` A Sure. It's Albert H. Titus, T-I-T-U-S.
` Q I want to start out with just a couple of ground
`rules. The first ground rule is we won't speak over one
`another. Does that sound reasonable?
` A It certainly does.
` Q The second is, I ask that you provide verbal
`answers, not hand motions, gestures. It makes it a lot
`easier for the court reporter. Does that sound reasonable?
` A Certainly, yes.
` Q I'm going to do my best to ask clear questions.
`If you don't understand the question, please let me know.
` A Okay.
` Q Does that sound reasonable?
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` ALBERT H. TITUS, Ph.D.
` A Certainly.
` Q If you do answer a question, I'm going to assume
`that you understand it. Sound reasonable?
` A It does.
` Q And I will take periodic breaks, as Bill knows,
`typically on the order of an hour per session. With that
`said, if at any time you need a break, let us know. All
`that I ask is that if there's a pending question, that
`we -- we -- you provide your answer before we take a break.
`It's not an endurance test today. Our objective is to get
`good, clear answers and clear questions.
` Any reason today that you can't testify
`truthfully?
` A No, there is not.
` Q Are you on any medication that would impair your
`ability to testify?
` A I am not.
` Q Okay. And have you been deposed before?
` A I have not.
` Q Okay. Do you know why you're here today?
` A I believe I do, yes.
` Q And why are you here today?
` A I'm here today as an expert witness for -- in
`this case. I think -- I believe it's patent ending in
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` ALBERT H. TITUS, Ph.D.
`'269, I believe.
` Q That's correct. And just to be clear, since
`there are -- a deposition today, a deposition tomorrow, the
`focus today will be on what is referred to as
`IPR2017-00318, the focus of which is U.S. Patent 8,886,269.
`And during the course of the day, I'll refer to that patent
`as the '269 patent. We'll understand that as the patent of
`this proceeding. Reasonable?
` A That is reasonable, certainly.
` Q Let me start by giving you a copy of your
`declaration. I hand you this. It's entitled "Declaration
`of Albert H. Titus in Support of Patent Owner Response to
`Petition." It's a Valencell exhibit, 2007.
` Have you seen this document before?
` A I certainly have, yes.
` Q And what is the document?
` A The document is my declaration in support of a
`Patent Owner response to the petition.
` Q And can you turn to Page 2 of the declaration?
`And do you see a signature there?
` A I do.
` Q And is that your signature?
` A Yes, it is.
` Q And prior to signing this document, did you
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` ALBERT H. TITUS, Ph.D.
`review the declaration?
` A Prior to signing the document, yes, I reviewed
`the declaration.
` Q And what did that review entail?
` A In its entirety, a lot of reading and writing as
`well as discussion with -- with Bill and -- and colleagues.
` Q So let me --
` MR. SPECHT: The realtime's not running. Is
`yours going?
` MR. KENNEDY: No.
` MR. SPECHT: We're going to take a short
`break. Off the record.
` (Break taken from 10:02 a.m. to 10:14 a.m.)
` Q (BY MR. SPECHT) So let me -- let me just go back
`to my -- my question where I was at before. So we started
`by looking at and confirming that this was your signature.
`My question, I believe -- or I'll start over.
` My question was, in terms of your review at
`the time of signing the document, what did your review
`entail? Not how much work you put into drafting, but the
`review when you signed it, what did you do to review the
`document?
` A To review the document, I read -- to review the
`document as of the time of signing this, I read through --
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` ALBERT H. TITUS, Ph.D.
`I read through the document once, maybe twice, maybe three
`times, I don't remember exactly, but at least once.
` Q Okay. And when was the last time you reviewed
`your declaration?
` A The last time I reviewed this declaration was
`either yesterday or the day before.
` Q And during that review, what did that review
`entail?
` A Reading through the document, from basically --
`maybe skipping the first page, but reading through the
`rest of the entire document.
` Q And does the declaration still include or
`represent your opinions in this matter?
` A Yes, the document does represent my opinions in
`this case.
` Q Are there any corrections, additions, deletions
`that you would want to make at this time to your
`declaration?
` A There are no -- no changes that I would make at
`this time.
` Q And just so we're -- we're clear, and I'll --
`I'll try to be disciplined about this. Given that you have
`two declarations in this proceeding, one being the
`declaration that's marked as Exhibit 2007, which is your
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` ALBERT H. TITUS, Ph.D.
`declaration in support of the Patent Owner response;
`another, which we'll come to later, your declaration on the
`motion to amend. Right now, we're focused on the Patent
`Owner response declaration. And I'll try to refer to it as
`your either Patent Owner Response Declaration or POR
`Declaration, so we're clear what we're talking about. Does
`that make sense?
` A Yes, that's fine.
` Q Okay. So with respect to your POR Declaration,
`did you write the declaration yourself?
` A For this -- for this declaration, it represents
`my -- wholly my opinions on this case. It -- in terms of
`the actual physical writing, I mean, like typing up every
`word, it was done as a joint effort between myself and Bill
`Kennedy and whoever else works for him.
` Q Okay. So with respect to others that worked with
`you on the declaration, you mentioned Bill Kennedy,
`correct?
` A Yes, that's correct.
` Q Did anyone else assist you in the preparation of
`the declaration, your POR Declaration?
` A I -- from -- on my side, nobody else did. On his
`side, I don't know necessarily who worked with him on his
`side.
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` ALBERT H. TITUS, Ph.D.
` Q And just to be clear, when you say on your side,
`did you speak to anyone else about your POR Declaration?
` A I did not.
` Q And when you say -- earlier you said you wrote
`it, it was a collaborative effort; is that correct?
` A Right.
` Q Are there particular sections in your POR
`Declaration that you recall writing yourself?
` A I don't think that I would say -- I would go and
`point to this word or this word in the declaration, but as
`a whole, it represents my opinions, yes.
` Q Okay. Now, if in looking at the table of
`contents, if we look at starting Section IV, Patentability
`Analysis of the '269 Patent.
` A Section IV, okay.
` Q Roman numeral four?
` A Yes.
` Q There are particular issues that are identified.
`For example, Ground 9, Numeral I, "Goodman as a whole
`compared to Asada as a whole." Do you see that?
` A Yes.
` Q How did you choose what issues to address? Such
`as, for example, Goodman as a whole compared to Asada as a
`whole?
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` ALBERT H. TITUS, Ph.D.
` A Which issues that I addressed in this were
`developed through a discussion with Bill Kennedy and
`whoever else works with him.
` MR. KENNEDY: And I caution you not to
`reveal any communication you've had with your attorneys
`unless it turns out to be a fact or assumption that you
`relied on that your attorney provided to you.
` Q (BY MR. SPECHT) Now, I'd also like to direct
`your attention to, for example, Page 16 of your POR
`Declaration. You have there an excerpted and annotated
`Figure 3. Do you see that?
` A Yes, I do.
` Q In terms of the annotations and the modifications
`to the figures, did you provide the annotations and
`modifications?
` A These were -- these annotations and modifications
`to this figure, the figure -- original figure being
`excerpted from -- I believe from the patent document, the
`annotations and other edits were developed through
`discussions. So I was not the one who necessarily provided
`those exact -- this final version that you see in the
`document, but it's based on my discussion and my opinion
`and certainly sketches, et cetera.
` Q And is that answer true to all of the annotated
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` ALBERT H. TITUS, Ph.D.
`and modified figures that occur in your POR Declaration?
` A That is correct, that they -- all of the
`annotated figures were developed as part of a group effort
`based on my own opinions that I believe to be true.
` Q And so it is your opinion that these figures and
`diagrams, the annotations and modifications are accurate?
` A Yes, they are accurate.
` Q When were you first contacted to work on this
`matter?
` A Oh, I'm not sure that I remember the exact date.
`I would -- I would say middle, late July, I think.
` Q And who contacted you to work on this matter?
` A I believe it was Bill Kennedy who contacted me.
` MR. KENNEDY: These questions are fine too,
`but don't reveal any communications that we may have had.
` Q (BY MR. SPECHT) Prior to being engaged in this
`matter, had you heard of Valencell?
` A Prior to being engaged in this matter, I had not
`heard of Valencell.
` Q Prior to being engaged in this matter, had you
`heard of Apple?
` A Prior to being engaged in this matter, I have
`heard of Apple.
` Q Have you ever been adverse to Apple in any
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` ALBERT H. TITUS, Ph.D.
`matters?
` A Could you explain "adverse"?
` Q Have you ever been involved in any other patent
`litigation matters?
` A I have not.
` Q When you were first contacted to work on this
`matter, what did you do?
` A I'm -- I'm not sure -- what did I do in
`particular, in general? I mean, I'm not sure...
` Q How did you assess whether you wanted to work on
`this matter?
` A Okay. So it was that I determined that the
`matter was relevant to my experience and my abilities and
`that it was something that I was interested in doing.
` Q And why were you interested in doing this?
` A That's a good question. I think it -- for me, it
`was -- it's an opportunity. I've had -- I've had my own
`patents, so that's -- so I've had some experience in terms
`of one side, let's say. And so I felt that it would be an
`interesting experience. I like something that adds to my
`knowledge base, my expertise.
` Q So do you consider yourself familiar with
`patents?
` A I do have some familiarity, I would say.
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` ALBERT H. TITUS, Ph.D.
` Q And what is that familiarity based on?
` A Familiarity is based on having developed my own
`patents through working through, obviously, patent people,
`who develop, actually write the patents based on what I
`provide them, as well as having reviewed patents for
`writing journal papers, preparing my own patents, even
`teaching in classes.
` Q Prior to agreeing to be engaged in this matter,
`did you review the '269 patent?
` A Prior to being engaged in this matter, I don't
`remember exactly the process or the -- the timeline of
`things that I did, but I believe that it once -- I believe
`that I must have looked it over to have some idea of what
`this involved.
` Q Would it be reasonable to assume that you
`reviewed the '269 patent before you engaged in this matter?
` MR. KENNEDY: Objection; form.
` THE WITNESS: Do I --
` MR. KENNEDY: Yeah, you can answer.
` THE WITNESS: Oh, okay. I'm sorry.
` A Is it -- I'm sorry. Could you repeat the
`question?
` Q (BY MR. SPECHT) My question goes to what were
`the activities you undertook to make the determination of
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` ALBERT H. TITUS, Ph.D.
`whether you wanted to be engaged in this matter; and as
`part of that, do you have any recollection of reviewing the
`'269 patent prior to your engagement here?
` A So if engagement -- I'm assuming engagement
`meaning actually when I said yes, I will do this, as
`opposed to prior to that, which would be when I'm looking
`at some material to say, you know, is this something that I
`have an expertise in or ability to provide information on.
`So I would say that I must have reviewed the patent prior
`to the official engagement.
` Q And you mentioned -- you know, I'm looking at
`some material to help make your determination. So what
`material do you recall looking at before you became
`engaged?
` A It would have been -- again, because this kind of
`involves two patents, so I'm assuming it would -- that I
`looked at this as well as the other patent.
` Q Would you have looked at anything else?
` A I don't believe that I would have looked at
`anything else, but I don't -- I don't recall.
` Q Did you have an initial reaction to the '269
`patent?
` A The initial reaction -- did I have an initial
`reaction to the patent. Probably, as with all things that
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` ALBERT H. TITUS, Ph.D.
`I read for the first time I think interesting.
` Q Do you recall what that initial reaction was?
` A Specifically, I don't.
` Q Do you have an opinion as to whether the
`challenged claims of the '269 patent are obvious?
` A Do I have an opinion -- I'm sorry. Do I have --
` Q As to whether the challenged claims of the '269
`patent are obvious.
` MR. KENNEDY: Objection; form.
` A For the cha- -- I -- I do not believe that they
`are obvious.
` Q (BY MR. SPECHT) Let's go to Page 8 of your
`declaration. There's a header, "Information Considered."
`Do you see that?
` A Yes.
` Q You state: I have reviewed and analyzed the '269
`patent.
` What do you mean by reviewed and analyzed?
` A Reviewed and analyzed means that I have -- would
`have read through the patent and thought about it, taken
`notes on it, that I -- I think that that would be probably
`sufficient.
` Q And you make a similar statement in Paragraph 13,
`you've reviewed and analyzed the prosecution history of the
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` ALBERT H. TITUS, Ph.D.
`'269 patent. In that context, what does reviewed and
`analyzed mean?
` A Again, this -- the same, that I have read through
`and thought about, taken notes on.
` Q In Paragraph 16 you state: I have also reviewed
`and analyzed the prior art cited in the petition and
`Dr. Anthony's declaration.
` What is the prior art that you're referring
`to there?
` A I don't believe that I can list all of the prior
`art off the top of my head.
` Q Would it be helpful if I gave you a copy of the
`petition?
` A It would be.
` Q So now I'm handing you the petition in the '269
`matter. Have you seen this document before?
` A Yes, I have.
` Q And now, just to go back to my previous question,
`what is the prior art that you're referring to in
`Paragraph 16 of your POR Declaration?
` A The prior art that I would say that would be --
`such as listed in the exhibit list in the -- in the
`document that you handed me, the petition, such as -- and I
`refer to briefly as Asada or Swedlow, Goodman, Hicks,
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` ALBERT H. TITUS, Ph.D.
`Hannula, Delonzor --
` Q Okay. You need to slow down for --
` A I'm sorry. So -- so again, the materials that
`are -- that are listed here.
` Q Okay. So I think you said Asada, that's
`Exhibit 1005, correct?
` A Yes.
` Q Swedlow, which is 1006?
` A Correct.
` Q Goodman, which is 1007?
` A Right. Correct.
` Q Hicks, 1008?
` A Correct.
` Q Any others?
` A 1009, Hannula; 1010, Delonzor; 1011, Al-Ali;
`1012, an excerpt; 1013.
` I believe that that -- I mean -- and I
`believe I re- -- I mean, I can continue, but I believe that
`that includes all of them, to the best of my memory.
` Q So just to be clear, when you say "prior art,"
`are you referring to, for example, Exhibit 1012?
` A I believe -- I don't know if I would say that
`Exhibit 1012 is prior art, as opposed to a definition.
` Q So just to clarify, have you reviewed all of the
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` ALBERT H. TITUS, Ph.D.
`documents that are identified here in the exhibit list of
`the petition?
` A Have I reviewed all. I believe I have reviewed
`all of the exhibits, yes.
` Q And analyzed all of the exhibits?
` A I believe that is correct.
` Q Okay. In Paragraph 17, you indicated you have
`reviewed and analyzed the Valencell's preliminary response;
`is that correct?
` A That is correct.
` Q Did you contribute in any way to the preliminary
`response?
` A I did not.
` Q And in your review of the preliminary response,
`do you agree with positions taken?
` MR. KENNEDY: Objection; form.
` A I don't know that I -- I don't recall the
`positions taken, and I don't know if I necessarily
`developed any opinion while reading them.
` Q (BY MR. SPECHT) You also indicate, in Paragraph
`19, that you have reviewed and analyzed the relevant papers
`and exhibits. What are you referring to when you say
`"relevant papers and exhibits"?
` A This is -- I'm sorry. This is what, you're
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` ALBERT H. TITUS, Ph.D.
`saying 19, right?
` Q Yes, Paragraph 19 of the POR Declaration. What
`are you referring to when you state that you reviewed and
`analyzed relevant papers and exhibits? What are those?
` A Those would be any -- the papers that are
`relevant to the -- to the matter at hand.
` Q Okay. And I'm asking, what specifically are
`those? You went through the listing in the petition of all
`of the exhibits.
` A (Nods head.)
` Q Are there other documents, papers, exhibits that
`you've considered beyond that?
` A I don't think that I can recall all of those off
`the top of my head. I believe that they're listed in -- in
`one of the documents.
` Q When you say they're -- you believe they're
`listed, are you referring to all of the relevant papers and
`exhibits here?
` A I -- I would say that I -- that not necessarily
`all, but I have reviewed relevant papers and exhibits.
` Q I'm just trying to identify what is relevant. So
`in your mind, what do you mean by "relevant"?
` A What I mean by relevant is, in my view, these are
`papers, or potentially patents, that provide background and
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` ALBERT H. TITUS, Ph.D.
`are related to the case at hand.
` Q And do those relevant papers include anything
`beyond what you've already identified to me?
` A From the Petitioner -- from the Petitioner
`document.
` Q Correct. Are there any other documents that you
`would consider relevant that you haven't disclosed thus far
`this morning?
` A That I've reviewed? It would -- I would say that
`other than what I've stated in here (indicating), I feel as
`though I must have reviewed other documents, other -- other
`patents, because of preparation, trying to read, et cetera.
` Q But you do you recall what those were
`specifically?
` A I don't know that I can recall them specifically.
` Q Are you familiar with Dr. Anthony's declaration?
` A Yes, I have read -- read through Dr. Anthony's
`declaration.
` Q And have you analyzed Dr. Anthony's declaration?
` A I did go through and read it and analyze it.
` Q I want to refer you to Paragraph 41 of your -- of
`the POR Declaration. Why don't you take a moment to review
`that Paragraph 41.
` So are you familiar with the patent family
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` ALBERT H. TITUS, Ph.D.
`of the '269 patent?
` A Yes, I am.
` Q Paragraph 41 mentions a number of provisional
`applications that are part of that patent family. Have you
`reviewed those provisional applications?
` A Provisional applications. Associated with the
`'239, yes, I am.
` Q So let me be specific. This Paragraph 41
`indicates that the '269 patent, which issued from U.S.
`Application 14/184,364 -- do you see that, the first
`sentence?
` A Yes.
` Q And the 34- -- and -- I'm sorry. The '364
`application is a continuation of application 12/691,388.
`Do you see that?
` A That's -- yes, I do.
` Q Are you familiar with Application No. 12/691,388?
` A I can't recall if I read through that -- that
`application as opposed to the patents that those became.
` Q Okay. The '364 application, this paragraph
`indicates further claims priority to Application No.
`61/208,567. Are you familiar with the '567 provisional
`patent application?
` A The -- I'm sorry. Did you say the '567?
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` ALBERT H. TITUS, Ph.D.
` Q Correct. Have you reviewed and analyzed the '567
`provisional application mentioned in Paragraph 41?
` A Again, I'm not sure if I reviewed that specific
`one versus the -- the final patent that was -- the final
`patent application and award.
` THE COURT REPORTER: Did you say and report,
`the final application --
` THE WITNESS: And award. Patent award. I'm
`sorry.
` Q (BY MR. SPECHT) So the same question with
`respect to Provisional Application 61/208,574. Have you
`reviewed and analyzed that provisional patent application?
` A And again, I'm not sure I remember if it was that
`or the '364 application or the patents that issued from
`there.
` Q Okay. The same question: Have you reviewed and
`analyzed Provisional Application 61/212,444?
` A Again, I'm -- I'm not sure that I remember if it
`was that specifically or the documents that followed on
`after that.
` Q Okay. And finally, with respect to Provisional
`Application 61/274,191, did you review and analyze the '191
`provisional application mentioned in Paragraph 41?
` A Again, I'm not sure I remember exactly if that
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` ALBERT H. TITUS, Ph.D.
`was one that I detailed, analyzed, or if it was one that
`followed on after that.
` Q Do you recall whether or not you reviewed any of
`the provisional applications that are mentioned here in
`Paragraph 41?
` A I believe I did, but I cannot recall
`specifically.
` Q What is the basis for your belief that you did
`review them?
` A Generally, as I -- when -- my process involved
`trying to read as much as I could about the vari- -- about
`the patents that are involved, to try to dig into -- to
`see, through going to the U.S. Patent office website,
`looking at locations, et cetera, and to try to dig up this
`information.
` So it's a question of whether or not I
`was -- how far back in those I went and looked at versus
`just going at what -- reading what was being -- what was --
`what had been filed.
` Q You state in Paragraph 41, near the bottom of the
`page: For this declaration, I assume that the priority
`date -- excuse me.
` I'm going to read the sentence exactly as it
`appears: For this declaration, I assume that the priority
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` ALBERT H. TITUS, Ph.D.
`date for is February 25th, 2009.
` First of all, to clarify that sentence, what
`do you believe the priority date is for that you're
`identifying there?
` A For the '269 patent.
` Q Okay. And what is the basis of that assumption,
`that February 25th, 2009 is the priority date?
` A Because by extension, the earliest of the filings
`of -- that this patent is built on and extends from was
`this patent -- Provisional Application No. 61/208,567 that
`was filed on that date.
` Q So do you know whether the '574 provisional
`patent application provides support for all of the claims
`in the '269 patent?
` A I don't recall all of the details that was --
`that were in that provisional patent application.
` Q So that doesn't answer the question. Do you know
`whether the '574 provisional patent application provides
`support for all of the claims in the '269 patent?
` MR. KENNEDY: Objection; asked and answered.
`You can answer.
` THE WITNESS: Okay. Sorry.
` A So I -- I don't recall all of the details that
`were in the 208,574 provisional application, so I'm not...
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` ALBERT H. TITUS, Ph.D.
` Q (BY MR. SPECHT) So sitting here today, if you
`can't recall the details of the '574 provisional
`application, then you would agree you do not know whether
`or not the '574 provisional application supports all the
`claims of the '269 patent, correct?
` A No, I would not say that is correct.
` Q Why not?
` A Because I don't recall the -- all of the details
`from the -- the '574 provisional, but it is my
`understanding and belief that the '269, which stemmed from
`that, will encompass that -- what is in that provisional
`patent application. But I can't state all of the items
`that are in the two -- the provisional patent application.
` Q But what is the basis for that understanding?
` A My understanding of the process of filing --
`filing patents and -- provisional patents and then
`continuation of applications, et cetera.
` Q So must a non-provisional patent application
`include all of the disclosure of a provisional?
` MR. KENNEDY: Objection; seeks a legal
`determination.
`You can answer. You can answer every time I object unless
`I say, "I instruct the witness not to answer" or "I caution
`you not to reveal any attorney-client." Otherwise, you
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` ALBERT H. TITUS, Ph.D.
`just ignore what I say --
` THE WITNESS: Okay.
` MR. KENNEDY: -- and you can answer.
` THE WITNESS: All right.
` A I'm sorry. Would you repeat the question?
` Q (BY MR. SPECHT) Well, let me restate it.
` A non-provisional patent application, can it
`have material that is in addition to material that was in a
`provisional application upon which it claims priority?
` A Could a -- I'm sorry. Could a non- --
` Q A non-provisional patent application, can it
`include material that goes beyond what was in -- in a
`provisional application upon which priority is claimed?
` MR. KENNEDY: Objection; seeks a legal
`determination.
` A I -- I don't -- I'm not fully aware of all of
`the -- of all of the rules that are involved in those -- in
`those pieces.
` Q (BY MR. SPECHT) So earlier you said your
`understanding and belief was that because of the process
`and the relationship between provisionals and
`non-provisionals, that was your basis why you thought that
`the non-provisional here, the '269 patent, would include
`the subject matter of the '574 patent application, correct?
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