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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` UNIFIED PATENTS INC.,
` Petitioner,
` v.
` VILOX TECHNOLOGIES LLC,
` Patent Owner.
` ------------------------------------
` Case IPR2018-00044
` Patent 7,302,423 B2
`
` DEPOSITION OF PHILIP GREENSPUN, Ph.D.
` New York, New York
` Thursday, May 24, 2018
`
`Reported by:
`MARIANNE WITKOWSKI-SMITH
`JOB NO. 142397
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` UNIFIED PATENTS INC.,
` Petitioner,
` v.
` VILOX TECHNOLOGIES LLC,
` Patent Owner.
` ------------------------------------
` Case IPR2018-00044
` Patent 7,302,423 B2
`
` DEPOSITION OF PHILIP GREENSPUN, Ph.D.
` New York, New York
` Thursday, May 24, 2018
`
`Reported by:
`MARIANNE WITKOWSKI-SMITH
`JOB NO. 142397
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` May 24, 2018
` 9:17 a.m.
`
` Deposition of PHILIP GREENSPUN, Ph.D.,
`held at the offices of Haynes and Boone, L.L.P.,
`30 Rockefeller Plaza, 26th Floor, New York, New
`York, before Marianne Witkowski-Smith, a Shorthand
`Reporter and Notary Public of the State of New York.
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`A P P E A R A N C E S:
`
` HAYNES AND BOONE
` Attorneys for Petitioner
` 2323 Victory Avenue
`
` Dallas, Texas 75219
` BY: JOHN EMERSON, ESQ.
`
` JOHN HARROP, ESQ.
` Attorney for Patent Owner
` 601 Los Caminos Street
` St. Augustine, Florida 32095
`
` DG KEY IP
` Attorneys for Patent Owner
` 1101 King Street
`
` Alexandria, Virginia 22314
` BY: JAY KESAN, ESQ.
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` P. Greenspun
`P H I L I P G R E E N S P U N, Ph.D.,
` called as a witness, having been duly
` sworn by the Notary Public, was examined
` and testified as follows
` MR. HARROP: Good morning,
` Dr. Greenspun. How are you?
` THE WITNESS: Good, thanks.
`EXAMINATION
`BY MR. HARROP:
` Q. Good. Let me start out by asking a
` couple questions about your education.
` You went to college, correct?
` A. Yes.
` Q. Where did you get an undergraduate
` degree?
` A. At the Massachusetts Institute of
` Technology.
` Q. And what was your degree in?
` A. Electrical engineering and computer
` science.
` Q. Okay. You did not get a degree in
` mathematics for undergraduate?
` A. Oh, I'm sorry, I thought you asked
` about -- you were asking about graduate
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` P. Greenspun
`school.
` No, I got an undergrad in math at
`MIT, yes.
` Q. Okay. Do you remember some of the
`math courses you took?
` A. Well, we're going back to 1979 now.
`Real analysis, topology, combinatorics,
`probability, category theory, algebra.
`That's what I can remember right now easily.
` Q. Okay. So you took a course in
`probability theory then, correct?
` A. Yes.
` Q. All right. Did you have a textbook
`for that?
` A. I don't remember. I think we just
`had notes from the professor, Gian-Carlo
`Rota. I think we just had notes from
`Gian-Carlo Rota, who was the professor
`teaching the class.
` Q. Did you have textbooks for any of
`the math courses that you took?
` A. Yes.
` Q. Okay. What were those textbooks
`like, what did they contain?
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` A. They contained proofs, I guess,
`mostly. So, you know, questions about
`whether something was true or not and then a
`step-by-step attempt to show that it either
`was true or wasn't.
` Q. Okay.
` A. Mathematical proofs.
` Q. Did they have problems that you
`would work on?
` A. Yes, sometimes, usually.
` Q. Okay. When you were getting the
`degree in mathematics, did you take any other
`courses that were not related to mathematics?
` A. Yes.
` Q. Did you take any English literature
`courses?
` A. No.
` Q. Did you take any English courses?
` A. No.
` Q. Okay. Did you --
` A. I know that was Britney Spears'
`favorite subject in high school, English, but
`she wasn't my inspiration back then.
` Q. All right. The courses that were
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`not math courses that you took, did those
`have textbooks?
` A. Yes, usually.
` Q. How would those textbooks compare
`or contrast to the textbooks you had for math
`courses?
` A. I guess they had more information
`about things that had already been
`demonstrated, perhaps experimentally, and
`there was less emphasis on showing how do we
`derive that information.
` So a physics textbook, for example,
`would describe Newton's Laws without telling
`people, you know, how to prove that they were
`true.
` Q. Did you have any courses in
`history?
` A. Yes, I think at least one.
` Q. Did you have a textbook for your
`history course?
` A. No, I don't think so, just
`individual reading assignments.
` Q. Okay. Are you working right now?
` A. Yes.
`
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` P. Greenspun
` Q. Where are you working?
` A. Well, right now I'm working here at
`this deposition as an employee of Fifth
`Stance Media LLC. In January I was working
`for the Massachusetts Institute of
`Technology, and in February I was working at
`the Harvard Medical School.
` Q. Let me ask about Fifth Chance
`Media. How -- when did you start working for
`them?
` A. In 2016.
` Q. In 2016?
` A. Yes.
` Q. And what got you to start working
`for Fifth Chance Media in 2016?
` A. Well, I had been doing my expert
`witness work, you know, as a Schedule, you
`know, C sole proprietor, I guess you would
`call it, and I decided it would be simpler to
`have a W-2 job.
` Q. So does Fifth Chance Media provide
`expert consulting services?
` A. Yes, among other things.
` Q. Are you the only expert that works
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`at Fifth Chance Media?
` A. Yes.
` Well, no, that's not true. I'm
`sorry, no.
` Q. I mean a testifying expert.
` A. Correct, but it's still not true.
`I'm not the only one.
` Q. Okay. How many matters have you
`been involved at -- involved with as a
`testifying expert under your employment with
`Fifth Chance Media?
` A. I'm not sure exactly, but probably
`at least two or three, you know, that
`actually involved testimony like a
`deposition, for example, or going to a
`hearing.
` Q. Okay. Other than this deposition
`that you're taking right now, participating
`in, what was the most recent deposition that
`you were involved in?
` A. I was deposed in a case in
`Philadelphia, I think about a month ago, a
`month and a half ago.
` The parties were --
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` Q. Okay. That's good.
` A. Yeah.
` Q. How about before that?
` A. December/January.
` Q. Of what year?
` A. This most recent December, for
`example, I think it might have been December
`2017.
` Q. And what was that case, about?
` A. That was a patent infringement
`matter, and the parties were Ford Motor
`Company and Versata.
` Q. All right. How much does Fifth
`Chance Media pay you?
` A. Approximately $60,000 a year.
` Q. Do you work there full time?
` A. No, not full time. As I mentioned
`earlier, I have also employment from MIT and
`Harvard.
` Q. So you're a part-time employee of
`Fifth Chance Media --
` A. Yes.
` Q. -- is that correct?
` A. Well, it depends on the month. It
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`can be full time some months, but it's not,
`you know, 40 hours a week for 52 weeks a
`year.
` Q. Do you work on an hourly basis, are
`you paid on an hourly basis?
` A. No, I'm paid roughly just a steady
`$60,000 a year.
` Q. How much is Fifth Chance Media
`paying you for this matter?
` A. I'm not getting paid anything extra
`because I'm working on this matter, for
`example.
` Q. You mentioned before that you were
`on your own, doing expert testimony.
` How much were you being paid when
`you were on your own?
` A. Well, the annual profit was
`probably, you know, comparable. Somewhere
`between 50 and $100,000 per year.
` Q. But if you were being deposed and
`testifying as an expert in a patent-related
`matter, were you paid a lump sum, were you
`paid by the hour; how were you paid?
` A. I was paid by the hour.
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` P. Greenspun
` Q. And what was your hourly rate?
` A. Between $275 and $475 per hour,
`depending on the case.
` Q. Okay. Is this the first matter
`that you've been employed in with Haynes
`Boone law firm?
` A. No.
` Q. How many other matters have you
`been employed with Haynes Boone?
` A. I believe there was one other.
` Q. All right. When was that?
` A. Perhaps a year and a half ago. I'd
`have to check my Gmail history, but it was
`probably one and a half to two years ago.
` Q. Was it in federal court?
` A. I think so, yes.
` Q. Was it a patent-related case?
` A. Yes, I believe so.
` Q. Who were you representing? Let me
`ask it a different way, let me change the
`question.
` Were you representing the
`defendant?
` A. I wouldn't say that I was
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`representing them, but I was working for a
`defendant. I believe it was a convenience
`store.
` There were two parties sued and
`there were two law firms involved on the
`defense side, that's why I'm kind of
`searching my -- what's left of my brain to
`answer that question, but...
` Q. So let me see if I can summarize
`this.
` You were representing -- or you
`were working for a defendant, which was a
`convenience store, in an intellectual
`property matter?
` A. Yes, that's correct. I was
`actually part of -- I guess I was working for
`a joint defense group of two convenience
`store chains that were separately represented
`by two different law firms, one of which was
`Haynes Boone.
` Q. Okay. Do you know what Unified
`Patents is?
` A. I don't know really anything about
`them. I'd never heard of them before I was
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`hired on this case.
` Q. Have you talked with anybody from
`Unified Patents?
` A. No.
` Q. Have you met anybody from Unified
`Patents?
` A. I have not.
` Q. Have you ever written any
`textbooks?
` A. Yes.
` Q. How many textbooks have you
`written?
` A. Well, probably three that were
`written as pure textbooks and another two
`that have been used as textbooks, but they
`were written more as professional -- I think
`it's called professional books, intended for
`people who are no longer students but working
`in the industry.
` Q. What's the distinction between the
`two types of books?
` A. The textbooks were written, you
`know, with the intention that they would be
`used by undergraduates in a college course.
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` P. Greenspun
` As for the other ones, they were
`written with the intention that they would be
`written by -- or read by working software
`developers.
` Q. Can you give me the titles of the
`two that -- of the latter category?
` A. The latter two, the professional
`books, were written in the late 1990s, so I
`won't be held to the titles exactly, but one
`was called 'Database Backed Web Sites.' The
`other was called 'Philip and Alex's Guide to
`Web Publishing.'
` Q. Okay. What were the titles of the
`three textbooks that you wrote?
` A. 'Software Engineering for Internet
`Applications,' 'SQL for Web Nerds,' and
`there's also a short textbook on T-C-L
`language, or TCL. I think it might have been
`called 'TCL for Nerds' as well.
` Q. Were the latter two books, the SQL
`and TCL book, those two books, were they
`published?
` A. They were published on my Web site
`and are published on my Web site. They were
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`never published in print, to my knowledge.
` Q. Okay. But the other three books
`were published?
` A. The other three books were and are
`published on the Web by me. And they were,
`in addition, published in print by
`traditional publishers.
` Q. Do you know if any of the textbooks
`that you referred to, the three textbooks, do
`you know if those were ever used in any
`course of study at any university?
` A. Well, the 'Software Engineering for
`Internet Applications' textbook, that was
`used by me at MIT and published by MIT Press,
`and I know it's been used in a bunch of
`different universities around the world.
` I have heard but can't remember the
`names of the schools or much of the details,
`but I seem to remember that 'Database Backed
`Websites' and 'Philip and Alex's Guide,' they
`were used as textbooks by some colleges in
`the late '90s and early 2000s.
` Q. Okay. And who was Alex?
` A. Alex my old dog.
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` Q. Okay. What kind of dog was it?
` A. A Samoyed.
` Q. So let's go on to a couple
`questions about when you were a professor, or
`you were teaching at MIT.
` So what courses did you teach at
`MIT?
` A. I have taught, you know, most of
`the basic electrical engineering and computer
`science classes at MIT, you know, as part of
`a larger teaching staff. I designed and
`taught two courses of my own, one of them
`being the Software Engineering for Internet
`Applications class and one of them being an
`intensive course on database programming.
` Q. Let me stop you here.
` So you used the textbook that you
`wrote for that -- the 'Software Engineering
`for Internet Applications' textbook in your
`course.
` Did your students have to read that
`book?
` A. Well, I don't -- I hope that some
`of them did read it. It was made available
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`to them and it contains problems, so I'm
`assuming that they read it. I mean, it was
`on my server for free, so there was no record
`of them buying the book, but...
` Q. Well, let me be a little more
`precise with my question then.
` You're teaching a course on
`Internet applications and you have students
`and you have a textbook. Was it your
`expectation that your students would know the
`content of that textbook as part of their
`progress through the course?
` A. It was my expectation that they
`would refer to the textbook for the problems
`that were assigned to them. It was my hope
`that, you know, they would remember at least
`some of the content by the time they finished
`the class.
` Q. Okay. What have you done to get
`ready for this deposition?
` A. I've re-read my declaration, I
`re-read some of the patent literature that's
`discussed in my declaration, and I met with
`attorneys from Haynes Boone.
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` Q. How long did you meet with
` attorneys from Haynes and Boone?
` A. Approximately six hours.
` Q. What did you do during those six
` hours?
` A. Discussed my declaration and the
` references from it.
` Q. Did you meet with Mr. Emerson?
` A. Yes.
` Q. When did you meet with Mr. Emerson?
` A. Yesterday.
` Q. When did you meet with the other
` attorneys?
` A. Also yesterday.
` Q. Who were the attorneys you met with
` besides Mr. Emerson?
` A. Thomas Kelton.
` Q. Did Mr. Emerson give you any
` specific guidance about how to approach the
` deposition?
`DI* MR. EMERSON: You know, I'm going
` to instruct the witness not to answer
` that. I don't think that's
` discoverable. Our communications are
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` not discoverable under the federal
` rules.
` I instruct the witness not to
` discuss specifically the things we talked
` about or the specific topics that we
` talked about.
`BY MR. HARROP:
` Q. Okay. Did Mr. Emerson give you any
` directions about how to approach the
` deposition, without going into the specifics
` of what those communications were?
` MR. EMERSON: You can answer yes or
` no.
` A. No.
` Q. Okay. What else did you do to
` prepare for the deposition?
` A. I paid $200 last night for Mexican
` food, but I don't think that counts, and then
` I went to sleep and that was it.
` Q. All right. You mentioned that you
` read the patent literature.
` What do you mean by the patent
` literature?
` A. I believe there's three patents
`
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`that are referenced from my declaration, so I
`re-read those. And I suppose that I looked
`briefly at the non-patent literature; I think
`there's some excerpts from a professional
`book on Excel, so I looked at that as well,
`briefly.
` MR. HARROP: Let me give you copies
` of your declaration.
` MR. EMERSON: Thank you.
` Q. We don't have to look at it right
`now, I'm just giving it to you, but in
`preparing that declaration, what did you do?
` MR. EMERSON: Object to the form.
` A. Well, I read the '423 Patent. I
`looked at what kind of prior art documents
`that I thought might be related to it. And
`then after discussions with Haynes and Boone
`attorneys, I started typing.
` Q. Why don't you look at paragraph 3?
`It's on page 1 of your declaration.
` A. Okay.
` Q. You see a table of exhibits, right?
` A. Yes.
` Q. Exhibits 1, 2, 3, 4 -- or 3, 4,
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`7 -- excuse me, let me start over.
` There's Exhibits 1, 2, 3, 4, 6, 7,
`8, 9 and 10. Those are the exhibits, and it
`says in your declaration that you studied
`those.
` A. Yes.
` Q. What does that mean, that you
`studied them?
` MR. EMERSON: Object to the form.
` A. Just that I've read them. It could
`have just as easily said that I have reviewed
`or read the following.
` Q. So reviewing, studying and reading
`a document, you equate those; is that your
`testimony?
` MR. EMERSON: Same objection.
` A. I'd have to see the context. But,
`you know, generally, I think I could have
`used any of those three words interchangeably
`in this context.
` Q. The '423 Patent, you said you read
`that. That's the patent that this whole
`matter is all about?
` A. Yes.
`
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` Q. The patent of Dr. Joseph L.
`De Bellis?
` A. Yes.
` Q. What is the -- what problem is it
`that that patent is trying to solve?
` A. Well, I tried to write about that
`on page 10 of my declaration -- sorry,
`page -- yeah, page 10 of my declaration.
` I don't know if it solves a problem
`exactly, but it's designed to provide what
`the author says is a novel user interface for
`accessing a database, something that let's
`the user see what's in the database.
` Q. Okay. Well, without reading your
`declaration, can you summarize how that
`interface works?
` MR. EMERSON: Object to the form.
` A. Sure. It's a system where the core
`of the system seems to be software that will
`query the database, find the rows of the
`database that are responsive to the query and
`make the information in those rows accessible
`through a step series of menus, where the
`menu items will be the first letter or the
`
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` P. Greenspun
`first few letters of the contents of -- I
`believe it's called an "entry" in those
`fields, is the terms that are used in the
`patent.
` So if you have, for example, 6,000
`rows in the database, instead of seeing a
`menu with 6,000 options, you would see a menu
`with, let's say, 26 options, one for each
`letter of the alphabet. And then if the user
`selects, for example, "A," he or she would
`get a menu just showing the entries beginning
`with the letter A.
` Q. The other prior art references that
`you list in your -- in paragraph 3, in this
`table that's with paragraph 3, one of them is
`Exhibit 1006; it's a patent to Maloney.
`Another is Exhibit 1007, a patent to Bertram.
`1008 is a patent to Kanevsky.
` Did you select those prior
`references?
` A. I don't think so, no.
` Q. How were -- how were they presented
`to you?
` MR. EMERSON: Object to the form.
`
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` A. I was emailed them to review and
`consider alongside the references that I had
`come up with.
` Q. What references did you come up
`with?
` A. I had looked at various systems
`that were designed to let nontechnical users
`create reports from and generally access and
`browse information in relational database
`management systems. One of them is called
`Brio, B-R-I-O. I might have also had Crystal
`Reports in there.
` Q. Okay. Let me stop you. Why, in
`writing your declaration, did you use just
`these three patent references listed here?
` A. I don't remember, but after
`discussions, apparently, you know, these --
`these four references, Exhibits 1006 through
`1009, were agreed upon as the most clearly
`relevant.
` Q. Did you agree that they were the
`most clearly relevant?
` A. Yes, I think so.
` Q. Did anybody tell you that they were
`
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`the most clearly relevant?
` A. I don't think so.
` Q. You said it was agreed upon that
`they were the most clearly relevant.
` A. Yes.
` Q. Does agreed upon mean that more
`than one person was involved in that
`decision?
` A. Yes.
` Q. Who was the other person that was
`involved in it?
` A. Thomas Kelton, I think, at least on
`the Haynes and Boone side. And I don't know
`who else, if --
` Q. So --
` A. -- if anyone.
` Q. So a minute ago you said that you
`had decided they were the most clearly
`relevant, and I asked you if there was
`anybody else that was involved.
` So have you changed your testimony,
`that it was you and Thomas Kelton that agreed
`that they were the most clearly relevant?
` MR. EMERSON: Object to the form.
`
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` A. I'm sorry if I said that. I don't
` think I ever thought that I was the sole
` decision-maker.
` Q. I just want to get it on the
` record. So to be clear, it was you and
` Thomas Kelton that decided on these
` references?
` A. Yes, he brought some references to
` the table, if you will, and so did I. And we
` had a discussion, and the conclusion of that
` discussion was that we would go forward with
` these four.
` Q. What did Mr. Kelton tell you about
` the relevance of those three references?
`DI* MR. EMERSON: I'm going to -- the
` same objection before. Again, their
` specific communications are not
` discoverable.
` So I would instruct the witness not
` to divulge any of his communications with
` counsel.
` Q. Did you study those three
` references?
` A. Yes.
`
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` MR. HARROP: Okay. Let's go to the
` references.
` Those are the three patents. And
` while we're at it, here's De Bellis, the
` '423 Patent, and the '423 Patent for you.
` Can we take a break?
` MR. EMERSON: Sure.
` (Recess taken, 9:51 a.m.)
` (On the record, 10:00 a.m.)
`BY MR. HARROP:
` Q. Okay. Dr. Greenspun, let me go
` back and ask you a question about something
` you said earlier in this deposition having to
` do with Fifth Chance Media LLC.
` A. Okay.
` Q. You told me, as I read it, you
` began working there in 2016; is that correct?
` A. Yes, I became a salaried W-2
` employee, I think, January 1, 2016.
` Q. Did you work for Fifth Chance Media
` LLC as a non-salaried employee prior to that?
` A. Yes, I had done work for Fifth
` Chance Media, yes.
` Q. When did you start working for
`
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`Fifth Chance Media?
` A. 2012 or 2013, I think.
` Q. Okay. This is your CV.
` If you look at the second page at
`the top, what does that say?
` A. Yes, 2013 through the present.
` Q. Okay. So when I asked earlier when
`you started working for Fifth Chance Media
`LLP [sic], you told me 2016. But then you're
`qualifying that now by saying that it was as
`a salaried employee, right?
` A. That's correct.
` Q. So you have been working -- is it
`correct to say that you have been working for
`Fifth Chance Media LLC since 2013?
` A. Yes, that's also true, although I
`was not working on expert witness -- anything
`related to expert witness work until 2016 for
`Fifth Chance Media.
` Q. Okay. However, between 2013 and
`2016, did you act as an expert witness in any
`cases?
` A. Yes, but as I hope I tried to
`explain earlier, I was doing that as an
`
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` P. Greenspun
`individual sole proprietor, not through an
`LLC or any other company.
` Q. All right. I'd like to turn your
`attention to your declaration, page 6,
`paragraph 21. So I'm going to ask about each
`of these cases that you list here.
` The first case, were you on the
`side of the defendant or the plaintiff?
` A. Defendant.
` Q. What was the subject matter of the
`case?
` A. Patent infringement.
` Q. All right. And what did you
`testify to in that case?
` MR. EMERSON: Object to the form.
` A. I testified -- I provided a
`tutorial to the Court on one day, and I
`believe that I testified regarding claim
`construction issues on two occasions in the
`same court.
` Q. Did you provide an opinion or a
`declaration as to either invalidity or
`non-infringement?
` A. No.
`
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` Q. Okay. And what was the result of
`that case?
` A. I don't know.
` Q. The next case is Wonderbox
`Technologies vs. The Management Group.
` Did you represent the defendant or
`the plaintiff?
` A. The plaintiff.
` Q. What was the subject matter of that
`case?
` A. A combination of contract
`violations, trade secret and copyright
`issues, although it's possible that the trade
`secret and the copyright stuff was all kind
`of rolled into confidentiality provisions
`that were in a contract.
` Q. What did you testify to in that
`case?
` A. I testified to similarities in
`structure of two different relational
`database management systems, or relational
`databases, I should say; similarities in user
`interfaces and perhaps, to some extent, how a
`person working in the software industry would
`
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`interpret certain terms in a contract.
`That's what I can remember.
` Q. Do you know the outcome of the
`case?
` A. I mean, I think it was settled, but
`I don't know.
` Q. The third one is HealthGrades vs.
`MDX.
` A. Yes.
` Q. Were you representing -- were you
`working on the side of the defendant or
`plaintiff?
` A. Plaintiff.
` Q. And what was the subject matter of
`that litigation?
` A. Patent infringement and other --
`maybe some other issues between two
`competitors, direct competitors.
` Q. And what did you testify to?
` A. Validity of one or two patents and
`infringement -- maybe only infringement of
`one patent and validity of at least one
`patent.
` Q. So did you testify that the
`
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`plaintiff's patents were valid?
` A. Yes.
` Q. Then did you testify that the
`plaintiff's patents were infringed?
` A. Yes.
` Q. How did you come to the conclusion
`that the patents were valid?
` MR. EMERSON: Object to the form.
` A. I reviewed the defendant's
`invalidity contentions and invalidity
`analysis and responded to that.
` I mean, this is going back, you
`know, roughly four years. So my memory is
`not too clear, but generally, my
`understanding is that the defendant has the
`burden of showing invalidity, and my work was
`just in looking at what they had done and
`analyzing it.
` Q. Did you prepare a declaration?
` A. Yes.
` Q. Were
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