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` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
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` C A S E I P R 2 0 1 7 - 0 0 7 8 1
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` P a t e n t 8 , 6 5 4 , 9 9 9
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` _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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` K / S H I M P P , )
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` P e t i t i o n e r )
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` v s . )
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` I I I H O L D I N G S 4 , L L C , )
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` P a t e n t O w n e r )
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` _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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` D e p o s i t i o n o f L e s E . A t l a s , P h . D .
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` W a s h i n g t o n , D . C .
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` S e p t e m b e r 2 7 , 2 0 1 7
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` W a s h i n g t o n , D . C . 2 0 0 0 5
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` U N I T E D S T A T E S P A T E N T A N D T R A D E M A R K O F F I C E
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` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
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` P a t e n t 8 , 6 5 4 , 9 9 9
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` K / S H I M P P , )
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` P e t i t i o n e r )
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` v s . )
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` I I I H O L D I N G S 4 , L L C , )
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` P a t e n t O w n e r )
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` _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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` D e p o s i t i o n o f L e s E . A t l a s , P h . D .
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` W a s h i n g t o n , D . C .
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` S e p t e m b e r 2 7 , 2 0 1 7
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` 1 1 : 0 4 a . m .
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` Deposition of Les E. Atlas, Ph.D. held at:
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`Page 2
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` Wilmer Cutler Pickering Hale and Dorr, LLP
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` 1875 Pennsylvania Avenue, N.W.
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` Washington, D.C.
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` Pursuant to Notice, when were present on behalf
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` of the respective parties:
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` A P P E A R A N C E S :
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` O n b e h a l f o f t h e P e t i t i o n e r :
` J A M E S P . M U R P H Y , E s q .
` P O L S I N E L L I , P C
` 1 0 0 0 L o u i s i a n a S t r e e t , 5 3 r d F l o o r
` H o u s t o n , T e x a s 7 7 0 0 2
` 7 1 3 - 3 7 4 - 1 6 3 1
` j p m u r p h y @ p o l s i n e l l i . c o m
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` O n b e h a l f o f t h e P a t e n t O w n e r :
` H A I X I A L I N , E s q .
` W I L M E R C U T L E R P I C K E R I N G H A L E A N D D O R R , L L P
` 1 8 7 5 P e n n s y l v a n i a A v e n u e , N . W .
` W a s h i n g t o n , D . C . 2 0 0 0 6
` 2 0 2 - 6 6 3 - 6 0 2 9
` h a i x i a . l i n @ w i l m e r h a l e . c o m
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` O n b e h a l f o f t h e W i l l i a m D e m a n t :
` D . R I C H A R D A N D E R S O N , E s q .
` B I R C H , S T E W A R T , K O L A S C H & B I R C H , L L P
` 8 1 1 0 G a t e h o u s e R o a d , S u i t e 1 0 0 E
` F a l l s C h u r c h , V i r g i n i a 2 2 0 4 2
` 7 0 3 - 2 0 5 - 8 0 0 0
` d r a @ b s k b . c o m
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` A l s o P r e s e n t V i a T e l e c o n f e r e n c e :
` R u s s R i g b y
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` C O N T E N T S
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` EXAMINATION OF LES E. ATLAS PAGE
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` BY MR. MURPHY 6
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` 139
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` BY MS. LIN 134
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` PREVIOUSLY MARKED EXHIBITS
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` Exhibit 1001 U.S. Patent 8,654,999
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` Exhibit 1003 U.S. Patent 8,787,603
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` Exhibit 1006 U.S. Patent 6,741,712
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` Exhibit 1007 U.S. Patent 4,972,487
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` Exhibit 1008 Declaration of
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` Les Atlas, Ph.D.
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` Regarding U.S. Patent
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` 8,654,999
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`17
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`18
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` Exhibit 1108 Declaration of
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` Les Atlas, Ph.D.
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`19
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` Regarding U.S. Patent
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` 8,654,999
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` (Exhibits included with transcript.)
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` P R O C E E D I N G S
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` LES E. ATLAS, Ph.D.,
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` was called for examination by counsel and,
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` after having been duly sworn by the Notary, was
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` examined and testified as follows:
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` MR. MURPHY: Just for the record,
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` this is James Murphy at Polsinelli, PC. I'm
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` here on behalf of the patent owner, and on the
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` phone with me is Russ Rigby who will just be
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` listening in.
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` We are here today for two IPRs, IPR
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` No. 2017-00781 and 2017-00782, both related to
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` U.S. Patent No. 8,654,999.
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` I will let opposing counsel
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` introduce her and the people with her.
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` MS. LIN: I am Haixia Lin. I am
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` here representing the petitioner, H-I-M-P-P,
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` HIMPP, and this is Rick Anderson.
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` MR. ANDERSON: Richard is fine.
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` MS. LIN: Richard Anderson and he is
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` here representing --
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` MR. ANDERSON: The petitioner,
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` William Demant.
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` EXAMINATION BY COUNSEL FOR PATENT OWNER
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` BY MR. MURPHY:
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` Q. Dr. Atlas, can you provide your full
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` name for the record, please.
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` A. First name, Les, middle name,
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` Eugene, last name Atlas.
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` Q. And before we got on the record, we
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` talked a little bit. You do have hearing
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` issues and you wear a hearing aid, so if I ask
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` you a question and you don't understand it,
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` please ask me to repeat and I happily will.
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` A. Yes, thank you.
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` Q. You realize you are here today to
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` discuss the content of the declarations you
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` provided in regard to the two IPR proceedings,
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` 2017-00718, 2017-00782, both related to U.S.
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` Patent 8,654,999; is that right?
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` A. Yes.
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` Q. And if I refer to that just as the
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` '999 patent, will that be acceptable?
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` A. Yes.
`
` Q. Now, I believe you were deposed
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` recently in another dispute involving a similar
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` patent; is that right?
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` MS. LIN: Objection. Relevance.
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` THE WITNESS: Can you define what
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` you mean by "similar."
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` BY MR. MURPHY:
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` Q. Sure. Well -- strike that.
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` Basically, I just wanted to make
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` sure that you understand, you know, in a
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` deposition, the questions that I ask you, you
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` need to answer them under oath.
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` Do you understand that?
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` A. Yes.
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` Q. And that your testimony here is has
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` much force and effect as it would if you gave
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` it before a judge or a jury.
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` Do you understand that?
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` A. Yes.
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` Q. Now if I ask you a question, you are
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` required to answer unless your attorney
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` specifically instructs you otherwise.
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` Do you understand that?
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` A. Yes.
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` Q. And if you need a break, please let
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` me know. I will try and accommodate you as
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` soon as I can, but I might want to finish a
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` line of questioning before the break.
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` Do you understand that?
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` A. Yes.
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` Q. Is there anything today that
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` prevents you from providing a full, complete
`
` and truthful answer today?
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` A. No.
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` Q. There is no medications or health
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` conditions that would affect your ability to
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` answer questions today?
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` A. No.
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` Q. Who approached you to provide your
`
` opinion in this matter?
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` A. I can't exactly recall who called me
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` first, but I do recall it was a lawyer or
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` someone who was representing a law firm, but I
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` do not recall their name.
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` Q. Would that person have been a
`
` representative of the WilmerHale law firm?
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` A. I think so.
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` Q. Do you recall roughly when you were
`
` first approached about this matter?
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` A. My best recollection is about a year
`
` ago.
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` Q. Are you familiar with the
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` organization K/S HIMPP, H-I-M-P-P?
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` A. Yes.
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` refer to them as HIMPP?
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` A. Yes.
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` Q. Have you ever met with any
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` representative of HIMPP prior to your
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` involvement in this matter?
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` A. Not that I was aware of.
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` Q. Did you ever meet with any
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` representative of HIMPP after you were retained
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` in this matter?
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` A. Not that I'm aware of.
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` Q. Did you ever communicate with anyone
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` other than attorneys from WilmerHale regarding
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` this matter?
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` A. No.
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` Q. Did you prepare for today's
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` deposition?
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` A. Can you repeat the question.
`
` Q. Yes. Did you prepare for today's
`
` deposition?
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` A. Yes.
`
` Q. And when did you do your
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` preparation?
`
` A. The last two days.
`
` Q. And so you prepared both of the last
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` two days?
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` A. Yes, both Monday and Tuesday.
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` Q. About how many hours do you think
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` you devoted to prepare for this deposition?
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` A. I would say 11 hours.
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` Q. What materials did you review in
`
` preparing for this deposition?
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` A. The '999 patent, the declaration,
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` the petition and the references, exhibits that
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` are listed as part of the package.
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` Q. Did you review -- with exhibits, do
`
` you mean the exhibits that are listed in your
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` declaration?
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` A. Yes.
`
` Q. Did you review all those exhibits?
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` A. Yes.
`
` Q. Did you review the board's
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` institution decision in these matters?
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` A. Can you define what you mean by
`
` "review."
`
` Q. Did you ever read the board's
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` institution decision in these matters?
`
` A. Some parts of it, yes.
`
` Q. What parts of it did you review?
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` A. I don't remember the exact parts,
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` but I remember reading some parts more
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` carefully than others.
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` Q. And what parts did you read more
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` carefully than others?
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` A. I don't recall.
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` Q. Is there a particular thing you were
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` looking for in those institution decisions?
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` A. No.
`
` Q. Did you read the preliminary
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` responses submitted by the patent owner in
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` these matters?
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` A. Yes.
`
` Q. Did you meet with any attorneys when
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` you were preparing for this deposition?
`
` A. Yes.
`
` Q. Do you know the names of those
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` attorneys?
`
` A. I can say I met with Haixia Lin,
`
` H-A-I-X-I-A Lin. I met with Christopher
`
` O'Brien, one other attorney whose name, I'm
`
` sorry, I don't recall. That's all I can
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` remember.
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` Q. As far as you know, those are all
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` attorneys with WilmerHale?
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` A. To the best of my knowledge.
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` Q. Did you meet with anyone else in
`
` preparing for your deposition?
`
` A. I think I may have met with another
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` WilmerHale attorney named Donald Steinberg.
`
` Q. Is there anyone you met with that
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` was not an attorney to your knowledge?
`
` A. No.
`
` Q. Okay. Dr. Atlas, I am handing you
`
` two documents. One was previously marked as
`
` HIMPP 1008 and the other one marked as HIMPP
`
` 1108.
`
` We'll start with HIMPP 1008.
`
` Do you recognize that document?
`
` A. Yes, I do.
`
` Q. What is that document?
`
` A. It's the declaration of myself, Les
`
` Atlas, Ph.D., regarding patent that we are
`
` calling '999.
`
` Q. And do you recognize HIMPP 1108?
`
` A. Yes.
`
` Q. What is that document?
`
` A. It's a declaration of myself, Les
`
` Atlas, regarding U.S. Patent '999.
`
` Q. And are these documents identical?
`
` A. I recognize both documents. I don't
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` have time, I don't think, to say for sure that
`
` they are identical, but kind of a random
`
` sampling of sections, they look identical.
`
` Q. Let me ask it this way: Was only
`
` one declaration prepared for the '999 patent?
`
` A. Yes.
`
` Q. So when you signed that declaration,
`
` you agreed under penalty of perjury that all
`
` statements were -- that you made in that
`
` declaration were truthful; is that right?
`
` A. Yes.
`
` Q. And after reviewing the declaration
`
` to prepare for today's deposition, do you still
`
` agree with all the statements you made in the
`
` declaration?
`
` A. Yes.
`
` Q. Did you notice any mistakes or
`
` errors that you would like to correct in the
`
` declaration?
`
` A. No.
`
` Q. Let's take a look at Exhibit 1008
`
` then for purposes of questioning.
`
` Can you turn to Paragraph 1 of
`
` Exhibit 1008.
`
` A. Yes.
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` Q. You have a statement in Paragraph 1
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` that says: "I have read and fully support as
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` if my own;" is that correct?
`
` A. Yes.
`
` Q. What did you mean by that statement?
`
` A. All statements -- I have read all
`
` statements in the declaration and fully support
`
` them as my own.
`
` Q. Did the statements come from someone
`
` other than you?
`
` A. Can you define what you mean by
`
` "come from."
`
` Q. Were these statements provided to
`
` you by someone else?
`
` A. Every statement in here was jointly
`
` discussed and looked at by me. Some were --
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` some came from me, some were jointly discussed
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` and all of them I read and agree with.
`
` Q. But you would agree that they are
`
` not your own statements; is that right?
`
` A. Not at all.
`
` Q. Then why do you say you would
`
` support them as if my own, why is the language
`
` "as if" in there?
`
` A. Plenty of the statements in the
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` declaration are direct quotes out of patents,
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` other patents. I read those and read their
`
` use. Some of those may have been found by
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` others, other than me, and then incorporated
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` into the statements I used.
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` So parts of some of the statements
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` may have originated with someone else, but then
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` once reading them and working jointly with
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` lawyers, I have read them and fully support as
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` if my own.
`
` Q. Are there any statements in the
`
` declaration that you provided that were not
`
` worked on with someone else?
`
` A. Well, if we go to Paragraph 6,
`
` Paragraph 6 is an example of a statement which
`
` I provided. I did work with someone else for
`
` editing it, and as I go through the
`
` declaration, there is plenty of statements that
`
` I provided initially but every statement or
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` virtually every statement was worked on with
`
` someone else.
`
` I can't say that about Appendix A.
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` Appendix A was not worked on with someone else,
`
` which is appended to the declaration. I
`
` provided Appendix A. I worked on it solely by
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` myself and then it was incorporated into this
`
` declaration.
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` Q. If you look at Paragraph 2, you
`
` state there that you were retained by counsel
`
` for HIMPP; is that right?
`
` A. It reads: "I have been retained by
`
` counsel for K/S HIMPP, petitioner, to serve as
`
` a technical expert in this interparty review
`
` proceeding."
`
` Q. Do you know any of the member
`
` companies that are a part of HIMPP?
`
` A. Well, I can remember the name
`
` Oticon, but I'm sorry, I think they have
`
` changed their name. That's one.
`
` Q. Is that the only company that you
`
` are aware of that would be a member of HIMPP?
`
` MS. LIN: Objection. Relevance.
`
` THE WITNESS: The best answer I can
`
` give is there is at least one company in
`
` Netherlands, at least one company in Germany
`
` that used to be or maybe still is part of
`
` Siemens and at least one company in
`
` Switzerland.
`
` BY MR. MURPHY:
`
` Q. Do you know the names of those
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` companies?
`
` A. I'm sorry, I can't recall.
`
` Q. Since you don't know the names of
`
` those companies, you wouldn't know if you had a
`
` financial interest in those companies; is that
`
` right?
`
` A. I don't have financial interest in
`
` any company which makes hearing aids.
`
` Q. Is there any company that makes
`
` hearing aids that provides any grant money for
`
` your research?
`
` A. No.
`
` Q. Does all your grant money come from
`
` government sources?
`
` A. Predominantly government, and I have
`
` one other grant that is coming from Amazon.
`
` Q. If you can go to Paragraph 11 of
`
` Exhibit 1008.
`
` In Paragraph 11, you would agree
`
` that you are not here to provide any opinion on
`
` the law; is that right?
`
` A. Well, as I state in Paragraph 11,
`
` the first sentence says: "I am not an
`
` attorney."
`
` Q. Do you consider yourself an expert
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` on the law?
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` A. Can you repeat the question.
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` Q. Do you consider yourself an expert
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`Page 18
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` on the law?
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` A. No.
`
` Q. Did you intend for any of the
`
` statements in your declarations to be legal
`
` conclusions?
`
` A. Well, in Paragraph 14, as I state:
`
` "I understand" that the obvious -- "that an
`
` obviousness analysis regardless of
`
` understanding of the scope and content of prior
`
` art, any differences between the alleged
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` invention and the prior art and the level of
`
` ordinary skill in evaluating the pertinent
`
` art."
`
` That sentence sits at the boundary
`
` of your last question and what is in this
`
` declaration.
`
` Q. So you do provide legal conclusions
`
` in your declaration?
`
` MS. LIN: Objection. Form.
`
` THE WITNESS: I certainly provide
`
` conclusions.
`
` BY MR. MURPHY:
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` Q. But you don't know if those were
`
` factual or legal in nature?
`
` A. I provide conclusions that are
`
` factual.
`
` Q. If you want to, you can put Exhibit
`
` 1008 to the side.
`
` I am now handing you Exhibit 1003.
`
` Do you recognize this exhibit, Dr.
`
` Atlas?
`
` A. Yes.
`
` Q. And what is this exhibit?
`
` A. It's a facsimile copy of U.S. Patent
`
` 8,787,603 also HIMPP Exhibit 1003.
`
` Q. And who is the inventor on this
`
` patent?
`
` A. Elmar Fichtl, F-I-C-H-T-L.
`
` Q. Would it be okay if I refer to this
`
` exhibit as Fichtl, this reference?
`
` A. Yes.
`
` Q. Can you turn to Figure 1 in Fichtl.
`
` Can you explain to me what is
`
` depicted in Figure 1?
`
` A. I can read from Fichtl, Column 3,
`
` Line 21.
`
` "Figure 1 shows a schematic diagram
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` of a hearing device, according to one
`
` embodiment of the present invention. Sounds
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` are picked up by a microphone which is labeled
`
` No. 2, processed by a signal processor which is
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` the rectangular box labeled by 9, and are
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` presented to a hearing device user," which is
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` the stick figure toward the right which is 10,
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` "to a receiver which is the combination of the
`
` rectangle and the round board shape 3. The
`
` magnitude of the amplification can be
`
` controlled by volume control 4."
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` "There is further an on/off switch 5
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` which says on/off in the figure. The signal
`
` processing is based on audio processing
`
` parameters. A controller labeled with a 6 is
`
` adapted to set such parameters, for example,
`
` when a hearing device 1 is switched on or when
`
` the volume control 4 is actuated. There is
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` nonvolatile memory 7," a square box, "to start
`
` parameters while the hearing device 1 is
`
` switched off. The controller 6," another
`
` square box, "is adapted to execute an
`
` acclimatization algorithm as the kind described
`
` further down below."
`
` Then it moves to the next paragraph.
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` Q. And so what is indicated by the box
`
` labeled 8 in Figure 1 of Fichtl?
`
` A. Okay. I'm going to go to Column 13,
`
` Line 45, and it starts actually in the middle
`
` of the sentence by saying: "Wherein said
`
` fitting interface 8," number 8, which refers to
`
` that rectangular box 8, "is adapted to write an
`
` initial power on value," and so on.
`
` Q. So you are reading from the sentence
`
` or limitation in Claim 14 of Fichtl; is that
`
` right?
`
` A. Yes, I am.
`
` Q. Is it your belief that Claim 14 is
`
` describing Figure 1?
`
` A. Well, the sentence you asked just
`
` before, asked me to describe Figure 1, where I
`
` went to Column 3, Line 21, and that paragraph
`
` there describes Figure 1 almost completely, so
`
` what I did is, I also found that there is a
`
` mention of block 8 in that claim that I read
`
` from.
`
` Q. You would agree that the paragraph
`
` starting at Column 3, Line 21, never discusses
`
` what block 8 is; is that right?
`
` A. No. In other words, I agree.
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` Q. And, in fact, nowhere in Fichtl does
`
` he discuss the block labeled 8 outside of Claim
`
` 14; isn't that right?
`
` A. If we look at Column 2 of the '603
`
` or Fichtl patent, Line 13, right under summary
`
` of the invention where that label starts at
`
` Line 11, says: "The present invention
`
` addresses the problem to provide a method where
`
` operating a hearing device with an 'automatic
`
` acclimatization management' which takes into
`
` account user preferences which is able to
`
` assure that the acclimatization phase is not
`
` accessibly long for reaching a acclimatization
`
` target condition."
`
` The next paragraph says: "This
`
` problem is solved by the features of Claims 1
`
` and 15," and let me point out it's referring to
`
` claims there, "in particular by a method for
`
` operating a hearing device in a way that lets a
`
` user said herein device, acclimatize to said
`
` hearing device, said hearing device
`
` comprising," and then the rest of that
`
` paragraph.
`
` From that information under the
`
` summary combined with the abstract of Fichtl,
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` looking at Figure 1, it seems pretty clear,
`
` obvious, the person of ordinary skill what the
`
` roles of block 8 and block 12 are, even though
`
` they are not explicitly stated.
`
` Q. So you also agree that block 12 is
`
` not discussed in Fichtl then?
`
` A. For a person of ordinary skill, the
`
` role of block 12 and the role of block 8 are
`
` quite obvious and I will read from Paragraph 63
`
` in the declaration: "The fitting interface 8,
`
` block 8, communicates with the computing device
`
` block 12 which is operated by an audiologist
`
` which is the stick Figure 11."
`
` And then it refers to this Figure 1.
`
` Q. So it's your opinion that even
`
` though there is no explicit discussion of
`
` blocks 8 or 12, one of ordinary skill in the
`
` art would find obvious what their functions
`
` are?
`
` A. By reading the abstract and the rest
`
` of the patents, they would find the role of
`
` block 8, block 12, stick Figure 11 to all be
`
` obvious.
`
` Q. And the portions of Fichtl that one
`
` of skill in the art would read for that is the
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` abstract in Column 2 starting at Line 13, which
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` you read into the record previously; is that
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` right?
`
` A. I am sorry. I can't isolate a
`
` specific portion of '603 which is used to make
`
` the statement of -- which is in the
`
` declaration, Paragraph 63. It is taken mostly
`
` as a whole from various sections.
`
` Q. And by '603, you mean Fichtl; is
`
` that right?
`
` A. Yes. Yes.
`
` Q. Let me ask one more question before
`
` we take a break.
`
` Since Fichtl doesn't ever explicitly
`
` discuss block 8 or block 12, you would agree it
`
` doesn't explicitly discuss the communication
`
` between block 8 and block 12; is that right?
`
` A. I can't agree with that. There is a
`
` two-sided arrow between block 8 and block 12
`
` which taken by a person of ordinary skill would
`
` mean some kind of communications link,
`
` transceiver.
`
` Q. Is that two-sided arrow shown in
`
` Figure 1 ever discussed in the specification of
`
` Fichtl?
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` A. The figure itself describes it, and
`
` I will read from the last line of Paragraph 63
`
` in the declaration: "Communication is
`
` represented by the bidirectional arrows between
`
` elements 8 and 12 in Figure 1 in Fichtl."
`
` Q. The citation you provide for that is
`
` -- which, looking above cites to Figure 1 and
`
` Column 3, Lines 35 to 48; is that correct in
`
` the declaration?
`
` A. Yes.
`
` Q. And what in Column 3, Lines 35 to 48
`
` discusses block 8?
`
` A. The last sentence of the paragraph
`
` that starts in Column 3, Line 35, the last
`
` sentence -- that last half of the last sentence
`
` of that paragraph, where I am at Line 40 of
`
` Column 3 now says: "Until the device user 10,"
`
` which is stick Figure 10, "returns to the
`
` fitter, e.g., the audiologist."
`
` Meaning that there is a fitter in
`
` this figure, if you look at the figure, you
`
` will see 10 is a hearing aid user, 11 is a
`
` hearing aid audiologist or in general, some
`
` other controller, some other person who has
`
` control over the state of a hearing aid.
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` Q. And none of that refers explicitly
`
` to block 8, does it?
`
` A. Since block 12 through a
`
` bidirectional arrow is controlled by stick
`
` Figure 11 and block 12 through a bidirectional
`
` arrow is connected to block 8, a person of
`
` ordinary skill in the art and I will quote from
`
` the last sentence of Paragraph 63 in the
`
` declaration: "The fitting interface block 8
`
` communicates with a computing device 12 which
`
` is operated by the audiologist," stick Figure
`
` 11, then the reference Figure 1 in this
`
` section, 3, 35 to 48.
`
` Last sentence says: "The
`
` communication is represented by the
`
` bidirectional arrows between elements 8 and 12
`
` in Figure 1, id."
`
` MR. MURPHY: Okay. Good time for a
`
` break.
`
` (A short recess was taken.)
`
` MR. MURPHY: Let's go back on the
`
` record.
`
` BY MR. MURPHY:
`
` Q. So we were looking at Figure 1 of
`
` Fichtl, and can you tell me what is depicted in
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`Page 26 of 170
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`III HOLDINGS 4, LLC
`Exhibit 2005
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` block 5 of Figure 1?
`
` A. If we go to the Fichtl patent,
`
` Column 3, Line 25 through 27, I will read from
`
` it: "The magnitude of the amplification can be
`
` controlled by volume control 4. There is
`
` further an on/off switch 5."
`
` So it is an on/off switch.
`
` Q. And what is the lower case F
`
` supposed to indicate below block 5?
`
` A. If I look at Figure 1 in the patent,
`
` the lower case F right below the big zero, an
`
` on/off, are you asking about that?
`
` Q. Yes, I am.
`
` A. The drafting program that was used
`
` to draw this figure inserted an extra
`
` undesirable carriage return after the first F
`
` of off. That extra undesirable carriage return
`
` dropped the F that you are referring to a
`
` little bit below and overlapping the
`
` rectangular box that has on/off in it, and
`
` someone -- presumably the person drafting this
`
` figure, chose to hand draw, as you can see if
`
` you look carefully, hand draw the final F, the
`
` second F of off to the right of the first F and
`
` never whited out or removed the F that fell
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`Page 27 of 170
`
`III HOLDINGS 4, LLC
`Exhibit 2005
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`1
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` below.
`
` Q. Okay. So it is just an error in
`
` drafting that figure?
`
` A. Yes.
`
` Q. Let's take a look at Figure 2 of
`
` Fichtl.
`
` What does Figure 2 depict?
`
` A. I'm going to read its simplest
`
` description from Fichtl, Column 3, Line 3:
`
` "Figure 2 shows an audio processing parameter
`
` is changed over time in a hearing aid according
`
` to the present invention."
`
` Q. And Fichtl's previous audio
`
` processing parameter is APP; is that right?
`
` A. The first time Fichtl uses that
`
` abbreviation is in the abstract of the patent,
`
` the sixth line of the patent which says:
`
` "Audio processing parameter (APP)."
`
` Q. So if I use the word APP, can we
`
` agree that means audio processing parameter?
`
` A. For this Fichtl patent, yes.
`
` Q. For Fic
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