Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`GOOGLE LLC
`Petitioner
`v.
`CYWEE GROUP, LTD.
`(record) Patent Owner
`IPR2018-01257 and
`IPR2018-01258
`
`D E P O S I T I O N
`o f
`DR. JOSEPH LAVIOLA
`taken on behalf of Petitioner
`
`DATE:
`
`TIME:
`
`PLACE:
`
`BEFORE:
`
`May 22, 2019
`
`9:22 a.m. to 3:40 p.m.
`
`Crowne Plaza Orlando Downtown
`304 West Colonial Drive
`Orlando, Florida 32801
`
`Dawn A. Hillier, RMR, CRR, CLR
`Notary Public - State of
`Florida, at Large
`
`JOB NO:
`
`161006
`
`1 2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`TSG Reporting - Worldwide 877-702-9580
`
`GOOGLE 1019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`GOOGLE LLC
`Petitioner
`v.
`CYWEE GROUP, LTD.
`(record) Patent Owner
`IPR2018-01257 and
`IPR2018-01258
`
`D E P O S I T I O N
`o f
`DR. JOSEPH LAVIOLA
`taken on behalf of Petitioner
`
`DATE:
`
`TIME:
`
`PLACE:
`
`BEFORE:
`
`May 22, 2019
`
`9:22 a.m. to 3:40 p.m.
`
`Crowne Plaza Orlando Downtown
`304 West Colonial Drive
`Orlando, Florida 32801
`
`Dawn A. Hillier, RMR, CRR, CLR
`Notary Public - State of
`Florida, at Large
`
`JOB NO:
`
`161006
`
`1 2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`TSG Reporting - Worldwide 877-702-9580
`
`GOOGLE 1019
`
`
`
`Page 2
`
`APPEARANCES:
`
`ATTORNEY FOR PETITIONER
` MATTHEW SMITH, ESQUIRE
` SMITH BALUCH
` 1100 Alma Street
` Menlo Park, California 94025
`
`ATTORNEYS FOR RESPONDENT
` CECIL KEY, ESQUIRE
` JAY KESAN, ESQUIRE
` ARLEN PAPAZIAN, ESQUIRE
` DIMURO GINSBERG
` 1750 Tysons Boulevard
` Tysons Corner, Virginia 22102
`
` - and -
`
` ARI RAFILSON, ESQUIRE
` SHORE CHAN DEPUMPO
` 901 Main Street
` Dallas, Texas 75202
`
`ALSO PRESENT:
`
` Rick Spector, Videographer
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2
`
`3 4
`
`5
`
`6
`
`7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Page 3
`
` INDEX
` PAGE
`WITNESS - DR. JOSEPH LAVIOLA 6
`DIRECT EXAMINATION BY MR. SMITH 6
`CROSS EXAMINATION BY MR. KEY 130
`CERTIFICATE OF OATH 138
`REPORTER'S CERTIFICATE 139
`
` EXHIBITS
`Exhibit 2004 Expert declaration of Dr. Joseph 10
` LaViola, Ph.D., in support of patent
` owner response for Patent No. 8,552,978
`Exhibit 2011 Expert declaration of Dr. Joseph 10
` LaViola, Ph.D., in support of patent
` owner's motion to amend for Patent No.
` 8,552,978
`
`Exhibit 1001 United States Patent No. 12
` 8,441,438
`Exhibit 1004 United States Patent No. 105
` 7,089,148 B1, Bachmann et al.
`
`Exhibit 1005 United States Patent Application 118
` Publication for the Zhang patent
`Exhibit 1006 United States Patent No. 123
` 7,158,118
`
`NOTE TO REPORTER: All exhibits retained by counsel.
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2
`
`3
`
`4
`
`5
`
`6
`
`7 8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Page 4
`
` REPORTER'S KEY TO PUNCTUATION:
`
`-- At end of question or answer references
`
` interruption.
`
`... References a trail-off by the speaker.
`
` No testimony omitted.
`
`"Uh-huh" "Um-hum" References affirmative sound.
`
`"Huh-uh" "Um-um" References negative sound.
`
`1 2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` THE VIDEOGRAPHER: Good morning. This is the
`
`start of media file number one of the deposition of
`
`Joseph LaViola, Ph.D. in the matter of Google, LLC
`
`as petitioner versus CyWee Group, Limited, as
`
`record patent owner before the Patent Trial and
`
`Appeal Board of the United States patent and
`
`trademark office, Case Nos. IPR2018-01257 and
`
`IPR2018-01258. This deposition is being held at
`
`the Crowne Plaza Orlando Downtown, 304 West
`
`Colonial Drive, Orlando, Florida, on Wednesday,
`
`May 22nd, 2019 at approximately 9:22 in the
`
`morning.
`
` My name is Rick Spector. I am a legal video
`
`specialist from TSG Reporting, Inc. headquartered
`
`at 747 Third Avenue, New York, New York. The court
`
`reporter is Dawn Hillier in association with TSG
`
`Reporting.
`
` At this time, I'll ask counsel to please
`
`introduce themselves.
`
` MR. SMITH: This is Matthew Smith for the
`
`petitioner, Google, LLC.
`
` MR. KEY: And this is Cecil Key for patent
`
`owners CyWee Group. And with me are Jay Kesan and
`
`Arlen Papazian and also Ari Rafilson of Shore Chan
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` and DePumpo.
`
` MR. SMITH: So, we have a couple of
`
` housekeeping matters before we start. First of
`
` all, as was noted by the videographer, this is a
`
` combined deposition for IPR2018-01257 and 01258.
`
` So, we'll be asking questions about both.
`
` And second, although the notice was for
`
` videotaped deposition, we've agreed that the video
`
` will be shut off during this deposition and there
`
` will be no video for other witnesses with respect
`
` to these IPRs, although we're leaving the audio
`
` recording on today.
`
` Any objections, Cecil?
`
` MR. KEY: No. We confirm that agreement.
`
` DR. JOSEPH LAVIOLA,
`
`was called as a witness, and having first been duly
`
`sworn, was examined and testified as follows:
`
` THE WITNESS: I do.
`
` COURT REPORTER: Thank you.
`
` DIRECT EXAMINATION
`
`BY MR. SMITH:
`
` Q Now, could you state your name for the record,
`
`sir?
`
` A Joseph J. LaViola, Junior.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 7
`
` DR. JOSEPH LAVIOLA
`
` Q And can I call you Dr. LaViola? Is that okay?
`
` A Sure.
`
` Q Okay. You've been deposed before; right?
`
` A Yes.
`
` Q Okay. And in connection with these patents at
`
`all?
`
` A Yes.
`
` Q And when was that, sir?
`
` A I was deposed -- I don't remember the exact
`
`dates. Perhaps it was last year, sometime in the
`
`spring. And I believe also last year, sometime in the
`
`fall. And then I had another one that was actually in
`
`January of this year.
`
` Q Do you remember which cases those were in
`
`connection with or who the parties were?
`
` A One of them was CyWee versus sam -- or Samsung
`
`versus CyWee, whatever, whichever way it is. And the
`
`other one was with Huawei.
`
` Q And you mentioned a third, though.
`
` A I had two depositions with Samsung.
`
` Q I see. So, by now, you're probably familiar
`
`with the rules of depositions?
`
` A Yes.
`
` Q I will ask you questions. You need to answer
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`the questions unless CyWee's attorney instructs you to
`
`do that for reason of privilege. Do you understand
`
`Page 8
`
`that?
`
` A Yes.
`
` Q You understand you're under oath and need to
`
`testify accurately?
`
` A Yes.
`
` Q Is there any reason you can't testify
`
`accurately today?
`
` A No.
`
` Q Any medications or anything that would
`
`interfere with your testimony?
`
` A I have a medical condition that causes me to
`
`get sleepy from time to time.
`
` Q Okay.
`
` A It may occur today. It may not.
`
` Q Understood.
`
` If you want to take a break at any time, just
`
`let us know. We can do that.
`
` A Okay.
`
` Q Did you prepare for the deposition today?
`
` A Yes.
`
` Q And how did you do that, sir?
`
` A I went through the various documents, which
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 9
`
` DR. JOSEPH LAVIOLA
`
`include my reports, the reports of Google's expert, the
`
`patents, the '438, '978 patent as well as the patents
`
`for Liberty, Zhang, and Bachmann.
`
` Q And did you meet with anybody while you were
`
`preparing?
`
` A Yes.
`
` Q And with whom did you meet, sir?
`
` A I met with counsel, DiMuro.
`
` Q Which attorney, specifically?
`
` A Cecil and Jay and also Arlen. And I also met
`
`with Ari as well.
`
` Q Okay. And about how long did you meet with
`
`these attorneys?
`
` A I would say about 12 hours.
`
` Q I'm going to hand you copies of two documents.
`
`Can you identify those, sir?
`
` A This is my expert declaration in the -- for
`
`the '978 patent. This is my expert declaration in
`
`support of CyWee's motion to amend for the '978 patent.
`
` MR. KEY: Before going, can I see those,
`
` please?
`
` THE WITNESS: Yes.
`
` MR. SMITH: I'll just note for the record that
`
` the expert declaration for the '978 patent is
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 10
`
` DR. JOSEPH LAVIOLA
`
` Exhibit 2004, and the expert declaration for the
`
` motion to amend for the '978 patent is Exhibit
`
` 2011. It's not actually marked on the documents.
`
` But just how they were filed.
`
` MR. RAFILSON: Counsel, do you have copies?
`
` MR. SMITH: No. We arranged beforehand to use
`
` electronic copies for previously filed documents.
`
` (Exhibit 2004 was marked.)
`
` (Exhibit 2011 was marked.)
`
`BY MR. SMITH:
`
` Q While Mr. Key is looking through those, I'll
`
`hand you a second set of declarations. Could you
`
`identify those for the record, Dr. LaViola?
`
` A This is my expert declaration for the -- for
`
`CyWee for the '438 patent. And this one is my
`
`declaration to support patent owner's motion to amend
`
`the '438 patent.
`
` MR. KEY: I also want to look at these.
`
` Counsel, I'd suggest we mark these in some way,
`
` otherwise, when we get going forward, I think it's
`
` going to be very confusing about which document is
`
` which, even for those of us that are looking
`
` electronically.
`
` MR. SMITH: I assume you're suggesting marking
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` them with the exhibit numbers?
`
` MR. KEY: Right. Right. We can use the
`
` existing exhibit number.
`
` MR. SMITH: Sure.
`
` MR. KEY: But having some marking to help
`
` refer to I think would be very helpful.
`
` MR. SMITH: That's fine. They're still going
`
` to be some ambiguity because they're both
`
` Exhibit 2004 and 2011; right?
`
` MR. KEY: Well, that's fair enough.
`
` MR. SMITH: So, Dr. LaViola, how should we
`
` refer to these to keep them straight? Would the
`
` '978 main declaration and the '978 motion to amend
`
` declaration be fine? And then '438 main and '438
`
` motion to amend? Do you understand?
`
` THE WITNESS: Yes, that's fine. Yes.
`
`BY MR. SMITH:
`
` Q Okay. Great. And you are the Dr. LaViola who
`
`signed those four declarations; correct?
`
` A I am.
`
` Q And you signed them under oath?
`
` A Yes.
`
` Q And we have mentioned today the '978 patent.
`
`Does that refer to US Patent No. 8,552,978?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 12
`
` DR. JOSEPH LAVIOLA
`
` A Yes.
`
` Q And it's okay if we refer to the '978 patent,
`
`you know what that means, by now, I hope?
`
` A Yes. Um-hum.
`
` Q And the '438 patent is US Patent No.
`
`8,441,438; correct?
`
` A Yes.
`
` Q And you understand that to be the '438 patent?
`
` A Yes.
`
` Q Okay. I'm handing you a copy of Exhibit 1001
`
`in IPR2018-01258. Can you identify that for me?
`
` (Exhibit 1001 was marked.)
`
` THE WITNESS: This is the '438 patent.
`
`BY MR. SMITH:
`
` Q I'm also going to hand you a copy of
`
`Exhibit 1001 from IPR2018-01257. Can you identify that
`
`one?
`
` A This is the '978 patent.
`
` Q Do you understand that there are two
`
`interparties review proceedings, one relating to the
`
`'438 patent and one relating to the '978 patent?
`
` A Yes.
`
` Q And are you familiar with the case numbers
`
`that I've been using, IPR2018-01257 and IPR2018-01258?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` A No.
`
` Q We have declarations in both of these IPRs.
`
`And there's a little bit of overlap between the
`
`Page 13
`
`declarations; right?
`
` A Yes.
`
` Q Okay. If, just to save time, you have similar
`
`passages in both declarations, and we can talk about
`
`both at once so I don't have to ask you twice, is there
`
`any easy way for me to identify those to you?
`
` A I mean, I don't really see an easy way to do
`
`it other than just to say, you know, '438, '978, or just
`
`'438 or just '978.
`
` Q Okay. So, it's easiest just to refer to the
`
`proceedings by the patent number they concern?
`
` A Um-hum.
`
` Q Yes? Okay.
`
` And do you know what the PTAB is? PTAB?
`
` A PTAB?
`
` Q Um-hum.
`
` A I think that's the -- isn't that the patent
`
`board that decides whether or not a patent is going to
`
`be invalid or not, based on the evidence given?
`
` Q Yeah. That's pretty accurate. I may refer to
`
`it as the board. Do you know that the board issued
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`preliminary decisions they call institution decisions in
`
`Page 14
`
`this case?
`
` A Yes.
`
` Q And have you reviewed those?
`
` A I've looked at them.
`
` Q Okay. In your main declarations, Exhibit 2004
`
`for the '438 patent and the '978 patent, you make
`
`determinations about the obviousness of some of the
`
`claims; right?
`
` A Yes.
`
` Q And do you know what the relevant time frame
`
`is for making that determination of obviousness?
`
` MR. KEY: Objection. It's vague.
`
` THE WITNESS: Well, I know that -- that the
`
` time frame has to go with the first instantiation
`
` of any related work or related patents that are
`
` being challenged or that are challenging, the
`
` patents in suit. So, you would need to go before
`
` that.
`
` So, for example, if a patent was issued or
`
` first applied for in 2001 -- right? -- then in
`
` order to determine the obviousness from that, you
`
` would go back as far as that. That's to the best
`
` of my knowledge.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`BY MR. SMITH:
`
` Q And do you know specifically what that time
`
`Page 15
`
`is, in this case?
`
` A No, not specifically.
`
` MR. KEY: Objection.
`
`BY MR. SMITH:
`
` Q Is it in your declaration, do you know?
`
` A No.
`
` Q It's not in your declaration or you don't
`
`know?
`
` A I don't know.
`
` Q Okay. When you determined whether the claims
`
`were obvious or not, what time frame were you using to
`
`make that determination?
`
` MR. KEY: Same objection as to vagueness.
`
` THE WITNESS: Are you talking about the claims
`
` from the '438 and '978 patents?
`
`BY MR. SMITH:
`
` Q Yes, I am.
`
` A Okay. So, I looked at basically the dates of
`
`the issued patents from the -- that are being used
`
`specifically Liberty, Bachmann, and Zhang.
`
` So, from those dates, I based my opinions on
`
`whether something was obvious or not.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` Q I'm going to try to rephrase what you just
`
`said and just tell me if I get it wrong; okay?
`
` A Okay.
`
` Q So, where do you -- actually, withdrawal. I'm
`
`not going to rephrase what you just said. I'm just
`
`going to ask you a question. When you were doing your
`
`determination of obviousness for the claims on the '438
`
`and '978 patents, were you trying to do that from the
`
`perspective of a person with ordinary skill in the art?
`
` A Yes.
`
` Q And that would have been at the time of the
`
`dates of the prior art references that were being used
`
`for your determination?
`
` A No. That would have been the dates of the
`
`prior -- the dates from the patents-in-suit.
`
` Q Okay. And you have the patents-in-suit in
`
`front of you; right?
`
` A Yes. Um-hum.
`
` Q Okay. And can you determine what those dates
`
`were from the patents?
`
` A November 2010 and July 2011. Actually, it was
`
`a prior publication. It was October 2011. So, it was
`
`first filed. Basically July of 2011 and November 2010.
`
` Q So, you were looking at the obviousness or not
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`from the perspective of a person with ordinary skill in
`
`the art either, you said, November of 2010 or July of
`
`Page 17
`
`2011?
`
` A Um-hum.
`
` Q Depending on the patent?
`
` A Yes.
`
` Q Okay. And just to be clear, you weren't using
`
`the date of the provisional application that was filed
`
`for either of those patents; correct?
`
` MR. KEY: Objection.
`
` Answer, if you can understand it.
`
` THE WITNESS: I'm not familiar with the --
`
` those dates.
`
` MR. SMITH: Cecil, could you limit your
`
` objections to non-speaking objections? That sounds
`
` like you're asking the witness to say he doesn't
`
` understand the question.
`
` MR. KEY: No. I'm telling him to answer if he
`
` understands it. That's all.
`
` MR. SMITH: You've read the cross-examination
`
` guidelines; right?
`
` MR. KEY: Have you?
`
` MR. SMITH: Yeah, absolutely.
`
` MR. KEY: Okay. Then you know what I'm doing
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 18
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` is okay.
`
` MR. SMITH: What they say is consistent with
`
` the policy expressed in Rule 1 of the Federal Rules
`
` of Civil Procedure and corresponding with 41 --
`
` 42.1(b) unnecessary objections, speaking objection,
`
` and coaching the witnesses and proceedings before
`
` the board is strictly prohibited.
`
` MR. KEY: Yeah.
`
` MR. SMITH: Okay.
`
` MR. KEY: Okay. You've got the rule right.
`
` You just don't have the application right.
`
` MR. SMITH: I see.
`
` MR. KEY: Okay. But, at any rate. Go ahead.
`
` MR. SMITH: You might want to review those
`
` during a break.
`
` MR. KEY: Okay. I will if you will. How's
`
` that?
`
` MR. SMITH: Agreed.
`
`BY MR. SMITH:
`
` Q The declarations that you have in front of
`
`you, so the '978 patent and the '438 patent, the two
`
`declarations in each case, did you write those
`
`declarations?
`
` A Yes.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 19
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` Q So, you were the one who did the mental act of
`
`composing the words that appear on the page?
`
` A I did some of the mental act of composing the
`
`words on the page. Some of it was done by counsel. And
`
`then I confirmed or denied that that -- those words
`
`should be or should not be in my declaration.
`
` Q So, did counsel do a first draft which you
`
`then reviewed?
`
` A I believe I put together -- well, they put
`
`together a rough draft. And then -- it was a iterative
`
`process.
`
` Any time a change was made or something was
`
`added, I read it. And if I didn't like it, I changed
`
`it. And if I did like it, I approved it.
`
` Q And with whom were you working to draft the
`
`declarations?
`
` A DiMuro. Specifically Cecil, Jay.
`
` Q Anyone else?
`
` A Arlen. That's it.
`
` Q Okay. And that's for all four declarations;
`
`right?
`
` A Yes.
`
` Q Is there anything about the testimony in your
`
`declarations that you think is incorrect, sitting here
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 20
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`today?
`
` MR. KEY: Objection.
`
` THE WITNESS: Yes.
`
`BY MR. SMITH:
`
` Q Which document are you looking at, sir?
`
` A I'm looking at the '438 patent -- the '438
`
`declaration. Yes. And both of them -- both the '978
`
`and the '438 says I'm being compensated at 375 an hour.
`
`That actually is 400 an hour. That's it.
`
` Q Thank you.
`
` Now, you said you reread the '438 and '978
`
`patents in your preparation; correct?
`
` A Yes.
`
` Q How familiar are you with the contents of
`
`those patents, as you sit here?
`
` MR. KEY: Objection.
`
` THE WITNESS: I think I'm pretty familiar with
`
` it.
`
`BY MR. SMITH:
`
` Q You've also worked on them in the context of
`
`various litigations going on; right?
`
` A Yes.
`
` Q Is claim one of the '438 patent obvious, in
`
`your opinion?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` A No, it's not obvious.
`
` Q And you did an analysis of obviousness in your
`
`declaration for the '438 patent, the main declaration,
`
`Page 21
`
`Exhibit 2004; correct?
`
` A Yes.
`
` Q What is your understanding of the concept of a
`
`person of ordinary skill in the art?
`
` MR. KEY: Objection.
`
` Go ahead and answer.
`
` THE WITNESS: So, I would say a person of
`
` ordinary skill in the art would be capable of
`
` understanding the scientific engineering principles
`
` applicable to the pertinent art and would have
`
` ordinary creativity.
`
`BY MR. SMITH:
`
` Q And how does that person figure into the
`
`obviousness analysis that you did?
`
` A Well, we have to look at the obviousness
`
`argument through the eyes of someone of ordinary skill
`
`in the art at the time of the invention.
`
` Q You testified that a person of ordinary skill
`
`in the art would be capable of understanding the
`
`scientific engineering principles applicable to the
`
`pertinent art and would have ordinary creativity.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` What is the pertinent art that you were
`
`referring to?
`
` MR. KEY: Objection.
`
` THE WITNESS: The pertinent art in this case
`
` is general knowledge in computer science,
`
` electrical engineering, mechanical engineering, or
`
` physics, or some equivalent work experience, also
`
` an understanding of sensors such as accelerometers,
`
` gyroscopes, and magnetometers.
`
` I also believe that the pertinent art would be
`
` items related to common filtering and other types
`
` of filtering mechanisms that are used in data
`
` fusion and/or the reduction of errors in noise and
`
` signals.
`
`BY MR. SMITH:
`
` Q And what is data fusion that you just referred
`
`to?
`
` A Data fusion is a term that describes the
`
`process of taking multiple sources of data from various
`
`sensors and using that data to come up with an answer,
`
`if you will, of some kind, or a new signal, if you want,
`
`that takes the best elements of that data so that you
`
`can get a more accurate result.
`
` Q Is that also called sensor fusion?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 23
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` A Yes.
`
` Q Okay. Is the point to take different types of
`
`sensors or different numbers of sensors and combine that
`
`data to make it more accurate?
`
` A It can be different types of sensors. It can
`
`be a number of sensors. There are a number of ways in
`
`which you can do sensor fusion.
`
` Q And why would you want to do sensor fusion, if
`
`at all?
`
` A You would want to do sensor fusion if the
`
`sensors that you have available to you have flaws under
`
`given characteristics, or they don't provide the
`
`complete information that one needs in order to get a
`
`result. The purpose is then to take those different
`
`sensors or the information of those sensors and combine
`
`them together so that you can get a more accurate result
`
`than if you were to try to use any of them individually.
`
` Q I asked you that question in the present
`
`tense. But would your answer also be accurate for, say,
`
`the 2009 time frame?
`
` A Yes.
`
` Q Do you consider yourself to be a person of
`
`ordinary skill in the art?
`
` A I believe qualified to be a person of ordinary
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`skill in the art.
`
` Q And would that have been true also just before
`
`the patents were filed -- I'm going to call that 2009.
`
`Page 24
`
`Is that okay?
`
` A That's fine.
`
` Q Okay. Would that also have been true in 2009?
`
` A Yes.
`
` Q Were you working in the field of the patents
`
`in around that time frame, around 2009?
`
` A I believe I was.
`
` Q Were you designing sensor fusion systems in
`
`2009 or thereabouts?
`
` A Yes.
`
` Q Okay. And can you describe specifically what
`
`you're basing that answer on, the work that you were
`
`doing that leads you to say that?
`
` A Actually, looking at the '438, '978 as well --
`
` Q The declaration, Exhibit 2004?
`
` A Yes. Um-hum.
`
` There are some papers that I published,
`
`specifically the RealNav, Exploring Natural User
`
`Interfaces for Locomotion in Video Games which was
`
`published in 2010.
`
` And The Wii Remote and Beyond: Using
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`Spatially Convenient Devices for 3DUIs, which was
`
`published also in 2010.
`
` Those two publications, as well as the
`
`Breaking of Status Quo -- well, that was really a
`
`recognition paper.
`
` So it really wasn't about sensor fusion. But,
`
`the first two that I mentioned were, had elements of
`
`sensor fusion in them.
`
` Q And what specifically were you working on in
`
`relation to these products -- projects, I should say?
`
` A Well, the RealNav, I was supervising a master
`
`student. And the second one, the Wii remote -- Wii
`
`Remote and Beyond paper, I was supervising the writing
`
`of that project based on work that my students and I had
`
`been doing, exploring the capabilities of a Nintendo
`
`remote.
`
` Q Were you working on the sensor fusion
`
`algorithms themselves in either of those two projects?
`
` A Yes.
`
` Q And were you working on the hardware design,
`
`for example, the sensors or the controllers or anything
`
`else that would have been needed?
`
` A I can't recall if we were doing hardware, but
`
`I know we were doing software.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` Q Have you worked on hardware design as it
`
`Page 26
`
`relates to motion sensors before?
`
` A My students have.
`
` Q Have you personally?
`
` A No.
`
` Q Have you ever designed, say, a sensor module?
`
` A I don't believe so.
`
` Q Were you following the literature in the field
`
`of the patents, as you described it earlier in the 2009
`
`time frame?
`
` A Yes.
`
` Q And what comes to your mind as being the
`
`literature you were following in that time frame that's
`
`relevant to the field of the patents?
`
` MR. KEY: Objection. Definitely vague.
`
` THE WITNESS: It's hard to say without having
`
` the papers in front of me because obviously in
`
` these papers, we refer to related work and how that
`
` related work differentiates between our own. But
`
` that was almost ten years ago, so, I'd have to have
`
` the papers in front of me to give you a complete
`
` comprehensive answer to that question.
`
`BY MR. SMITH:
`
` Q Understood.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 27
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` Were you reading any journals regularly or
`
`anything like that that would have kept you up to date?
`
` A I was -- I'm always reading journal articles
`
`and conference papers.
`
` Q Including in the 2009 time frame?
`
` A Yes.
`
` Q When did you first hear of the '438 and '978
`
`patents?
`
` A I believe it was two years ago in, I want to
`
`say, April, May, something like that.
`
` Q And was that in connection with the
`
`litigations that are going...
`
` A Yes.
`
` Q Do you know the inventors of the '438 or '978
`
`patents?
`
` A I do not.
`
` Q Okay. And do you know whether the inventors
`
`ever published a technical article relating to the
`
`contents of their patents?
`
` A To the best of my knowledge, they did not.
`
` Q When did you first hear of the company CyWee?
`
` A About two years ago, May, April, May time
`
`frame.
`
` Q When you were contacted to consult in the
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
`litigations?
`
` A Yes.
`
` Q Do you think the '438 and '978 patents are
`
`Page 28
`
`important patents?
`
` MR. KEY: Objection.
`
` THE WITNESS: I do.
`
`BY MR. SMITH:
`
` Q Why is that, sir?
`
` A The main reason is because they were able to
`
`show significant capability of determining orientation
`
`with inertial sensors, specifically related to 3D input
`
`devices.
`
` 3D pointing devices. Excuse me.
`
` Q And was that something that people in the art
`
`had been trying to do before but couldn't do?
`
` A People have been trying to do 3D pointing
`
`devices, but in the past, were using other sensing
`
`technologies. This was the first that I am aware of
`
`that used these inertial sensing devices -- I mean,
`
`these inertial sensors for 3D pointing devices.
`
` Q And we talked a little bit earlier about
`
`sensor fusion and why people did sensor fusion, why they
`
`do sensor fusion.
`
` A Um-hum.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 29
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` DR. JOSEPH LAVIOLA
`
` Q The '438 patent describes using six sensors;
`
`right?
`
` A Well, it describes -- it describes two sensors
`
`that have three axes each.
`
` Q I see. And is the '978 patent then describing
`
`three sensors with three axes each?
`
` A Yes.
`
` Q If the '438 patent with two sensors and three
`
`axes could be used for determining orientation for 3D
`
`pointing devices, why would the 978 add another sensor
`
`with three additional axes?
`
` A It would add an additional set of sensors, or
`
`in this case, the magnetometer, three-axis magnetometer
`
`to potentially improve the accuracy of the determination
`
`of the orientation of the handheld 3D pointing device.
`
` Q Why would adding an additional set of sensors
`
`potentially improve the accuracy of the determination of
`
`the orientation of the handheld 3D pointing device?
`
` A Because -- well, each type of sensor has a
`
`limitation. And adding a magnetometer would help to
`
`mitigate one of those limitations. Therefore, enabling
`
`a more accurate result in the calculation of the
`
`orientation for the handheld 3D pointing device.
`
` Q I'm not referring to the specific way of
`
`TSG Re
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
