BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` ____________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _____________________________
`
` SONOS, INC.,
` Petitioner,
` v.
` IMPLICIT, LLC,
` Patent Owner.
` ________________________________
` IPR2018-00766 (Patent 7,391,791 B2)
` IPR2018-00767 (Patent 8,942,252 B2)
` _________________________________
`
` *************************************
` PROCEEDINGS
` April 4, 2019
` *************************************
`
` THE FOLLOWING PROCEEDINGS were reported
`telephonically in the above-styled and numbered cause on
`April 4, 2019, beginning at 10:02 a.m., before Michelle
`Propps, CSR, in and for the State of Texas, reported by
`machine shorthand, Houston, Texas, pursuant to the Code
`of Federal Regulations.
`
`HANNA & HANNA, INC.
`713.840.8484
`
`

`

`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
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`Page 2
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` A P P E A R A N C E S
`
`FOR THE PETITIONER:
` MR. COLE B. RICHTER (via teleconference)
` Lee Sullivan Shea & Smith LLP
` 656 W Randolph St, Floor 5W
` Chicago, Illinois 60661
` Tel: 312.754.9602
` Fax: N/A
` Email: richter@ls3ip.com
`FOR THE PATENT OWNER:
` MR. WILLIAM E. DAVIS, III (via teleconference)
` MR. CHRISTIAN HURT (via teleconference)
` Davis Firm, PC
` 213 North Fredonia, Suite 230
` Longview, Texas 75601
` Tel: 903.230.9090
` Fax: N/A
` Email: bdavis@davisfirm.com
` churt@davisfirm.com
`
`ADMINISTRATIVE PATENT JUDGES:
` Ms. Sheila F. McShane (via teleconference)
` Ms. Michelle N. Wormmeeser (via teleconference)
` Mr. Nabeel U. Khan (via teleconference)
`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` P R O C E E D I N G S
` YOUR HONOR: This is Judge McShane on the
`line. On the line as well are Judges Wormmeester and
`Khan. And we're here on the Sonos v. Implicit matter,
`IPR2018-00766 and -00767.
` Who do I have on the line for petitioner?
` MR. RICHTER: Good morning, everyone.
`Cole Richter on behalf of petitioner, Sonos.
` YOUR HONOR: And for patent owner?
` MR. DAVIS: Good morning. Bo Davis and
`Christian Hurt on behalf of the patent owner.
` MR. HURT: Good morning, Your Honor.
` YOUR HONOR: All right. And somebody has
`arranged for a court reporter. Who did that?
` MR. HURT: Patent owner did, Your Honor.
` YOUR HONOR: Okay. And would you mind --
`after you get a transcript and share it with petitioner,
`would you mind entering it on the docket, please?
` MR. HURT: Yes.
` MR. DAVIS: Absolutely.
` YOUR HONOR: Thank you. Well, we're here
`this morning because we received an email from patent
`owner on April the 2nd, where patent owner requests
`authorization to videotape the deposition of Dr. Roman
`Chertov. And that deposition is set for April 9th,
`
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`2019. And petitioner opposes the request.
` So its patent owner's request here, so
`could we hear from patent owner as to why you are making
`this request.
` MR. DAVIS: Yes, Your Honor. This is Bo
`Davis on behalf of the patent owner. I'd be happy to
`address that.
` Dr. Chertov, his testimony is relevant to
`these proceedings. And not only is his verbal testimony
`relevant, but we believe that all of the non-verbal
`testimony, his demeanor and his appearance in giving
`testimony, is relevant to credibility and is relevant
`to -- his credibility and is relevant -- and is
`something that a factfinder, whether it be this
`honorable Board or another fact-finding body, should be
`potentially able to consider and should therefore be
`preserved as part of this deposition.
` So we are asking that we be able only, at
`this time, to preserve the evidence. We are not asking
`for leave or authorization to use the evidence in this
`proceeding. We're only asking that the evidence be
`preserved, and a hundred percent at our expense. And so
`that's the basis for our request.
` YOUR HONOR: Okay. And when you say
`you'll pay for everything, for instance, if there was a
`
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`video taken, you would provide a copy of that to
`petitioner at your expense?
` MR. DAVIS: Yes, Your Honor.
` YOUR HONOR: Well, can I hear from
`petitioner why you oppose this request?
` MR. RICHTER: Yeah. Thank you, Your
`Honor. This is Cole Richter on behalf of petitioner.
`Yeah, so, you know, our understanding is Rule 53 states,
`you know, that the parties may agree to video record a
`testimony. And, you know, the final rule is
`limitation -- states that if the nature of the testimony
`makes direct observation of the witness' demeanor
`necessary or desirable, then that's the situation that
`the board would authorize testimony to be video
`recorded.
` So, you know, I still really haven't
`heard, you know, the patent owner articulate why the
`witness' demeanor -- observation of the witness'
`demeanor is necessary or desirable in this case. I
`mean, this is essentially just routine cross examination
`of an independent witness on his second declaration in
`this case.
` You know, counsel for patent owner has
`stated that they're just simply asking to preserve the
`video evidence right now and that they would need to
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`seek a separate Board authorization if they wanted to
`submit it in the future.
` But, you know, I don't think patent owner
`actually anticipates asking the Board to submit the
`video in these proceedings, so -- you know, we had a
`meet-and-confer on Tuesday, April 2nd. And counsel for
`patent owner indicated that they especially wanted the
`video to use in the underlying litigation. But, you
`know, I don't think -- that just isn't the type of
`situation that I understand panels authorize video
`recordings, you know, to be preserved; that is so one
`party can, you know, get an advantage in the underlying
`litigation by having, you know, a video on just a
`portion of an exert's deposition from an IPR.
` That kind of underscores the prejudice, I
`think, because, you know, petitioner submitted
`Dr. Chertov's direct testimony via affidavit, which is
`how we were required to do it, so we don't have any
`video of his direct testimony. So, you know, allowing
`patent owner to preserve just -- just the
`cross-examination via video and then use it in the
`underlying litigation, you know, it's prejudicial.
` And, you know, potentially -- he has
`somewhat of a thick accent and the video adds, you know,
`some unneeded stress. So I think that would make it
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`actually more confusing than just the transcript.
` And, finally, just one quick final point,
`I think, you know, in another case, one of the PTAB
`judges really summed it up nicely. And this is in
`IPR2015-01402, at Paper 28, where a panel denied a
`similar request to video record cross examination of
`petitioner's expert. They said if the relief requested
`by patent owners is granted under the facts of this
`case, then Rule 53(a) would really make video recording
`available at the will of one party. But the rule
`requires agreement; and, here, there's no agreement.
` YOUR HONOR: Okay. Can we hear just a --
`any response you have to that argument from patent
`owner, please?
` MR. DAVIS: Yes, Your Honor. Again, Bo
`Davis on behalf of the patent owner. I heard
`Mr. Richter raise a couple of issues. One is that he
`felt that it was -- that the witness' credibility -- we
`have not articulated some basis for the witness'
`credibility to be at issue.
` My response to that is any witness any
`time that is providing testimony under oath is -- his or
`her credibility is at issue at any time. And so we do
`not know yet whether Dr. Chertov's demeanor and reaction
`to certain questions is going to be relevant or not. We
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`PROCEEDINGS - 4/4/2019
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`haven't taken the deposition yet. But what we do know
`is if we're in the deposition and it does become
`relevant and we don't have a video recording there,
`we've lost the opportunity to preserve the evidence.
`We're not going to be able to recreate that scenario.
` And, again, we're not asking for
`authorization to use -- at this time for authorization
`to use the video in these proceedings. We're simply
`asking to preserve it. We believe it's relevant to his
`credibility in these proceedings, but there's a
`separate, independent reason. This is a witness on
`behalf of Sonos who is a defendant in underlying
`litigation. He's offering testimony on behalf of Sonos.
` And if we were in district court,
`Article III District Court, there would be no question
`about our ability to preserve his testimony via -- live
`via video.
` And it may or may not be relevant to that
`litigation. We don't know. But we're just simply
`asking to be able to preserve it. If there are any
`objections or prejudice that result from Mr. Chertov's
`video deposition being videoed, Sonos has every ability
`to raise those objections with this Board; or if it's
`being used in the underlying litigation, with the judge
`in that case.
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`PROCEEDINGS - 4/4/2019
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` So what, essentially, Mr. Richter is
`asking the Board to do is pre-judge the relevance of
`this testimony when we really won't know until we're
`there how relevant it's going to be. And we think
`that's improper. There's no prejudice, just simply
`preserving deposition testimony. It happens all the
`time in almost every deposition in district court. And
`for, you know, Mr. Chertov, you know, he -- Mr. Richter
`raised additional stress related to video. I'm not sure
`why that would cause additional stress. You know, every
`witness is videoed, so that's not something unique to
`Dr. Chertov, or this witness, or anything in that
`regard.
` I can also cite the Board to other orders
`where the court has allowed video testimony, where
`stress or -- you know, the same arguments that
`Mr. Richter raised were considered, but rejected by the
`Board. That would be IPR2013-534, IPR2013-537, an order
`entered April 11th, 2014. And in that order, petitioner
`made similar arguments to what Mr. Richter raised, that
`video recording of the deposition adds additional
`unneeded stress to the deponent. In response, the
`patent owner contended that the demeanor may be
`important because the scope of the declarations exceeded
`the scope of their expertise, and thus the demeanor of
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`the witness may become relevant. The Board held that by
`recording the deposition, the patent owner is only
`preserving an opportunity for the panel to review the
`depo. "We therefore authorize videotaping of the
`deposition at patent owner's expense." And the Court
`limited that authorization only to videotaping and not
`for use, which required -- which would require separate
`authorization. That's exactly what we're asking for
`here, simply the ability to record it. If we want to
`use it, we will seek separate authorization.
` YOUR HONOR: Okay.
` MR. RICHTER: Your Honor, can petitioner
`respond just very briefly to that one final --
` YOUR HONOR: Yes, please. Thank you.
` MR. RICHTER: Yes, thank you. Yeah. So
`I think that 2013-00534 case that counsel for patent
`owner cited is actually instructive, because I think in
`that case, the patent owner actually articulated why the
`witness' demeanor would be relevant to that case.
` I mean, in that case, patent owner was
`contending that the scope of the expert opinions
`exceeded the scope of his expertise. And -- and they
`haven't contended that here and they haven't -- I mean,
`they haven't alleged that that's the case that's going
`on here. They really just said, you know, it's -- that
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`the witness' demeanor is -- is necessary or desirable in
`every single case that a witness offers testimony. And
`that's just not the case here. They -- you know,
`that -- they haven't contended that Dr. Chertov's, you
`know, opinions exceed the scope of the expertise. And
`they haven't even objected to his second declaration.
`So if that were really an issue, I mean, you would have
`thought that they would have objected to that evidence,
`but they didn't. So I don't think that's a real issue
`in this case.
` MR. DAVIS: May I respond, Your Honor?
` YOUR HONOR: Well, give me -- let me
`throw in a question here. And -- and it's on that
`point, which is do you -- do you have any evidence where
`you're questioning -- like, real evidence questioning
`the credibility, if you will, or -- let me put it this
`way -- the honesty of Dr. Chertov?
` MR. DAVIS: Absolutely, Your Honor. And
`I think that it's self-evident that we disagree with
`Dr. Chertov's reading of source code, which is binary,
`which is really not subject to interpretation. It
`either does something or it doesn't do something.
`Dr. Chertov's position in his declaration is that the
`source code, Implicit source code that embodies and
`evidences an actual reduction to practice of the claimed
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
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`inventions doesn't do what Implicit says it does.
` We intend to put the source code in front
`of him and show him exactly where it's doing that, in
`direct contradiction to his declaration. And his
`demeanor and credibility -- unless the Board is able to
`read this source code for itself, it will be relying on
`Dr. Chertov's credibility and his -- taking his word for
`it, basically, that the code does what he says it does,
`in contrast to what our exert and our inventor says it
`does. So it will become absolutely a question of the
`credibility of the witness', Dr. Chertov's -- and,
`again, potentially demeanor in answering questions about
`source code will be highly relevant to this Board's
`ability to -- to judge whether it's going to credit
`Dr. Chertov's view of the code versus our expert and our
`inventor's view of the code.
` YOUR HONOR: All right. Anything else?
` MR. RICHTER: Your Honor, yeah, could I
`just respond very briefly to that? This is Cole Richter
`for petitioner.
` YOUR HONOR: We're not going to turn this
`into a back-and-forth. This is the last comment, if you
`will.
` MR. RICHTER: No. I appreciate that,
`Your Honor. I just don't understand -- I mean, your
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
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`question was directed to the honesty of Dr. Chertov, I
`mean -- and he answered your question with -- with
`something that's an opinion. I mean, we have two
`experts here opining on the functionality of source
`code. These aren't fact witnesses. This is
`Dr. Chertov's opinion of how a PDF printout of source
`code would have functioned. I mean, but that's all we
`have to go on is PDF printouts of source code, is
`Dr. Chertov's opinion on how that source code functions,
`not his fact-witness testimony on, you know, something
`that honesty or credibility would be relevant to. Thank
`you.
` YOUR HONOR: All right. Well, we
`appreciate the parties', you know, arguments and
`response to questions on these issues. The panel is
`going to take this issue under advisement. And we will
`issue a -- an order in due course. We do recognize
`there's some time sensitivity here and so we'll be
`getting that out fairly quickly. So with that, we are
`adjourned on this issue. Thank you.
` MR. DAVIS: Thank you, Your Honor.
` MR. RICHTER: Thank you.
` (Proceedings concluded at 10:17 a.m.)
` * * * * * *
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
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`Page 14
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`COUNTY OF HARRIS )
`STATE OF TEXAS )
`
` REPORTER'S CERTIFICATION
` I, MICHELLE R. PROPPS, Certified
`Shorthand Reporter in and for the State of Texas, hereby
`certify that this transcript is a true record of the
`proceedings.
` I further certify that I am neither
`attorney nor counsel for, related to, nor employed by
`any of the parties to the action in which this
`proceeding was taken. Further, I am not a relative or
`employee of any attorney of record in this cause, nor do
`I have a financial interest in the action.
` Subscribed and sworn to on this the
`25th day of April, 2019.
`
` ______________________________
` MICHELLE R. PROPPS, CSR 2738
` Expiration Dated: 12/31/2020
` Hanna & Hanna, Inc.
` 8582 Katy Freeway, Suite 105
` Houston, Texas 77024
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`BEFORE THE PATENT TRIAL AND APPEAL BOARDBEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PROCEEDINGS - 4/4/2019 PROCEEDINGS - 4/4/2019
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`A
`ability 8:16,22 10:9
`12:14
`able 4:16,18 8:5,20
`12:5
`abovestyled 1:19
`absolutely 3:20
`11:18 12:10
`accent 6:24
`action 14:11,14
`actual 11:25
`additional 9:9,10
`9:21
`address 4:7
`adds 6:24 9:21
`adjourned 13:20
`administrative 2:14
`advantage 6:12
`advisement 13:16
`affidavit 6:17
`agree 5:9
`agreement 7:11,11
`alleged 10:24
`allowed 9:15
`allowing 6:19
`answered 13:2
`answering 12:12
`anticipates 6:4
`appeal 1:2
`appearance 4:11
`appreciate 12:24
`13:14
`april 1:13,20 3:23
`3:25 6:6 9:19
`14:16
`arent 13:5
`argument 7:13
`arguments 9:16,20
`13:14
`arranged 3:14
`article 8:15
`articulate 5:17
`articulated 7:19
`10:18
`
`asking 4:18,19,21
`5:24 6:4 8:6,9,20
`9:2 10:8
`attorney 14:10,13
`authorization 3:24
`4:20 6:1 8:7,7
`10:6,8,10
`authorize 5:14 6:10
`10:4
`available 7:10
`B
`
`b 2:4
`b2 1:9,9
`backandforth
`12:22
`basically 12:8
`basis 4:23 7:19
`bdavis 2:12
`beginning 1:20
`behalf 3:8,11 4:6
`5:7 7:16 8:12,13
`believe 4:10 8:9
`binary 11:20
`bo 3:10 4:5 7:15
`board 1:2 4:15 5:14
`6:1,4 8:23 9:2,14
`9:18 10:1 12:5
`boards 12:13
`body 4:15
`briefly 10:13 12:19
`C
`
`c 2:1 3:1
`case 5:19,22 7:3,9
`8:25 10:16,18,19
`10:20,24 11:2,3
`11:10
`cause 1:19 9:10
`14:13
`certain 7:25
`certification 14:4
`certified 14:5
`certify 14:7,9
`chertov 3:25 4:8
`
`9:8,12 11:17 13:1
`chertovs 6:17 7:24
`8:21 11:4,20,23
`12:7,11,15 13:6,9
`chicago 2:5
`christian 2:9 3:11
`churt 2:13
`cite 9:14
`cited 10:17
`claimed 11:25
`code 1:22 11:20,24
`11:24 12:2,6,8,13
`12:15,16 13:5,7,8
`13:9
`cole 2:4 3:8 5:7
`12:19
`com 2:7,12,13
`comment 12:22
`concluded 13:23
`confusing 7:1
`consider 4:16
`considered 9:17
`contended 9:23
`10:23 11:4
`contending 10:21
`contradiction 12:4
`contrast 12:9
`copy 5:1
`counsel 5:23 6:6
`10:16 14:10
`county 14:1
`couple 7:17
`course 13:17
`court 3:14 8:14,15
`9:7,15 10:5
`credibility 4:12,13
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`PROCEEDINGS - 4/4/2019
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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