throbber
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
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`CASE NO. 2017-cv-00495-WCB-RSP
`
` CYWEE GROUP LTD.,
`
`Plaintiff,
`
` vs.
`
` HUAWEI DEVICE CO. LTD.,
` HUAWEI DEVICE (DONGGUAN) CO.
` USA, INC.,
`
`Defendants.
` ___________________________________/
`
`Veritext Reporting
`37 N. Orange Avenue
`Suite 500
`Orlando, Florida
`Tuesday, 9:15 a.m.-5:16 p.m.
`September 25, 2018
`
` VIDEOTAPED DEPOSITION OF JOSEPH J. LAVIOLA, JR., Ph.D
`
`Taken on Behalf of the Defendants before
`Lisa Gerlach, Court Reporter, Notary Public
`in and for the State of Florida at Large,
`pursuant to Defendants' Notice of Taking
`Deposition in the above cause.
`
`Pages 1- 169
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 1
`
`GOOGLE 1025
`
`

`

` A p p e a r a n c e s :
` C o u n s e l f o r t h e P l a i n t i f f :
` A R I B . R A F I L S O N , E S Q U I R E
` S h o r e C h a n D e P u m p o , L L P
` B a n k o f A m e r i c a P l a z a
` 9 0 1 M a i n S t r e e t
` S u i t e 3 3 0 0
` D a l l a s , T X 7 5 2 0 2
` 2 1 4 - 5 9 3 - 9 1 1 4
` a r a f i l s o n @ s h o r e c h a n . c o m
`
` C o u n s e l f o r t h e D e f e n d a n t s :
` B E N K L E I N M A N , E S Q U I R E
` K i l p a t r i c k T o w n s e n d & S t o c k t o n , L L P
` T w o E m b a r c a d e r o C e n t e r
` S u i t e 1 9 0 0
` S a n F r a n c i s c o , C A 9 4 1 1 1
` 4 1 5 - 2 7 3 - 7 5 6 8
` b k l e i n m a n @ k i l p a t r i c k t o w n s e n d . c o m
`
`1
`2
`3
`
`4
`
`5
`
`6
`
`7 8
`
`9
`
`1 0
`
`1 1
`
`1 2
`1 3
`1 4
`1 5
`1 6
`1 7
`1 8
`1 9
`2 0
`2 1
`2 2
`2 3
`2 4
`2 5
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 2
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
` INDEX
`
` WITNESS EXAMINATION PAGE
`
` Joseph J. LaViola, Jr., Ph.D
`
` Direct by Mr. Kleinman 5
`
` Cross by Mr. Rafilson 154
`
` Redirect by Mr. Kleinman 164
`
` Certificate of Oath 167
`
` Certificate of Reporter 168
`
` EXHIBITS
`
` Exhibit 1 Declaration of Joseph J.
`
` LaViola, Jr., Ph.D in Support
`
`13
`
` of CyWee's Reply Claim
`
` Construction Brief 13
`
`14
`
` Exhibit 2 Declaration of Joseph J.
`
`15
`
` LaViola, Jr., Ph.D in Support
`
` of CyWee's Opening Claim
`
` Construction Brief 15
`
` Exhibit 3 '438 Patent 19
`
` Exhibit 4 '978 Patent 26
`
` Exhibit 5 CyWee Group Ltd., Markman
`
` Hearing Presentation 166
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 3
`
`

`

`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
`
` THE VIDEOGRAPHER: Good morning. We are
`
` going on the record at 9:15 a.m. on
`
` September 25th, 2018. Please note that the
`
` microphones are sensitive and may pick up
`
` whispering, private conversations, and
`
` cellular interference. Please turn off all
`
` cell phones or place them away from the
`
` microphones, as then can interfere with the
`
` deposition audio. Audio and video recording
`
` will continue unless all parties agree to go
`
` off the record.
`
` This is media unit one of the
`
` video-recorded deposition of Joseph J.
`
` LaViola, Jr., Ph.D, taken by counsel for the
`
` defendants in the matter of CyWee Group Ltd.
`
` Vs. Huawei Device, Ltd., et al., filed in the
`
` United States District Court, Eastern
`
` District of Texas, Marshall Division.
`
` This deposition is being held at Veritext
`
` Orlando, located at 37 North Orange Avenue,
`
` Orlando, Florida. My name is Bailey Gerlach.
`
` I'm from the firm Veritext Legal Solutions
`
` and I'm the videographer. The court reporter
`
` is Lisa Gerlach from the firm, Veritext
`
` Reporting.
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 4
`
`

`

`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
`
` Counsel will now state their appearances
`
` and affiliations for the record beginning
`
` with the noticing attorney.
`
` MR. KLEINMAN: Ben Kleinman, with
`
` Kilpatrick Townsend, representing Huawei.
`
` MR. RAFILSON: Ari Rafilson, on behalf of
`
` plaintiff, CyWee Group.
`
` THE VIDEOGRAPHER: Will the court
`
` reporter, please, swear in the witness?
`
` THEREUPON,
`
` JOSEPH J. LAVIOLA, JR., Ph.D,
`
` a witness herein, acknowledged after having been duly
`
` sworn, testified upon his oath as follows:
`
` THE WITNESS: I do.
`
` DIRECT EXAMINATION
`
` BY MR. KLEINMAN:
`
` Q. Good morning.
`
` A. Good morning.
`
` Q. First things first. Is it Dr. LaViola,
`
` Professor LaViola? Do you have a preference?
`
` A. You can call me Dr. LaViola, I guess.
`
` Q. Thank you. You understand that you are under
`
` oath?
`
` A. Uh-huh.
`
` Q. Is there any reason this morning that you
`
`Veritext Legal Solutions
`866 299-5127
`
`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
`
` couldn't give full and truthful testimony?
`
` A. No.
`
` Q. Is there anything impairing your memory in
`
` particular this morning?
`
` A. No.
`
` Q. No cough medicine?
`
` A. Uh-uh.
`
` Q. Feeling under the weather?
`
` A. No.
`
` Q. I know you've been deposed at least once
`
` before. That was in the Samsung matter related to
`
` these patents. Is that correct?
`
` A. Yes.
`
` Q. Have you been deposed any other time?
`
` A. No.
`
` Q. After that Samsung deposition, did you
`
` receive a transcript of that deposition?
`
` A. Yes.
`
` Q. Did you review that transcript?
`
` A. I did.
`
` Q. Did you make any errors or inaccurate
`
` statements during your testimony in the Samsung
`
` deposition?
`
` A. I don't believe. I can't recall that I did.
`
` I think there were a few typos that I fixed, but,
`
`Veritext Legal Solutions
`866 299-5127
`
`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
`
` other than that, I don't think there was anything that
`
` I said that needed to be corrected.
`
` MR. RAFILSON: Counsel, for the record,
`
` Dr. LaViola, did submit an errata in that
`
` case. You should be in possession of that
`
` errata. If you're not, I'd be happy to get
`
` that to you.
`
` MR. KLEINMAN: Thank you, Counsel.
`
` BY MR. KLEINMAN:
`
` Q. When you talk about typos that you may have
`
` corrected, are you referring to filling out that
`
` errata form?
`
` A. Yes.
`
` Q. Are there any other statements you made
`
` during that deposition that you now think are
`
` inaccurate?
`
` A. There may be some statements that I made
`
` which, after further analysis of the materials, may
`
` need to be revised.
`
` Q. Do you know what those are now?
`
` A. I don't remember exactly what they would be
`
` off the top of my head.
`
` Q. You know there are some?
`
` A. There might be one or two.
`
` Q. Do you have any specific statements in mind?
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 7
`
`

`

`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
`
` A. I guess there may be one having to do with
`
` the notion of the patents and the extended Kalman
`
` filter.
`
` Q. And what about the patents and the extended
`
` Kalman filter?
`
` A. I believe that, in my testimony under the
`
` Samsung deposition, I mentioned that the patents -- or
`
` one of the embodiments of the patents used an extended
`
` Kalman filter, and that is -- after further analysis
`
` of the patent, that statement probably needs to be
`
` revised.
`
` Q. When you say, "revised," are you saying that
`
` none of the disclosed embodiments in the
`
` specifications are disclosed using an extended Kalman
`
` filter?
`
` A. No. What I'm saying is that -- see -- the
`
` extended Kalman filter is a framework for doing
`
` estimation, and there are certain pieces of it that
`
` are used in the patent and certain pieces that are
`
` not.
`
` So the rephrasing of what I said in that
`
` deposition, I have corrected in other briefs. But in
`
` regards to that particular deposition, the -- the
`
` statement I made would have to be revised to saying
`
` something to the extent that it makes use of
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 8
`
`

`

`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
`
` components of the extended Kalman filter.
`
` Q. Other than that, are there any other
`
` inaccuracies or other statements you made that you now
`
` think might have been in error?
`
` A. No.
`
` Q. So you're doing fine so far in the deposition
`
` in terms of how we get along in giving a clean record
`
` and giving verbal answers.
`
` Two more things I'd like to emphasize before
`
` we go further. If you don't understand something I
`
` say, please, let me know and just say you don't
`
` understand.
`
` A. Okay.
`
` Q. Thank you. And breaks -- feel free to
`
` request a break whenever you want it. It may well be
`
` that I take breaks more often than you need. We'll
`
` just try not to break while a question is pending and
`
` hasn't been answered yet.
`
` A. Uh-huh.
`
` Q. One of the things you testified to is what a
`
` person of ordinary skill in the art would understand
`
` about the claims; correct?
`
` A. Uh-huh, yes.
`
` Q. At what point in time does that person of
`
` ordinary skill have the knowledge that makes them a
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 9
`
`

`

`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
`
` person of ordinary skill in the art?
`
` A. Well, I would say probably either --
`
` depending on the level of the education that they
`
` had -- it could be immediately after graduation from
`
` college or one to two -- perhaps one to two years
`
` after college.
`
` Q. That that was a poorly-worded question. That
`
` wasn't what I was trying to elicit. What I meant was,
`
` are they offering that person as a person of ordinary
`
` skill in the art today or are they offering that
`
` opinion as ordinary skill in the art at a different
`
` point in time?
`
` MR. RAFILSON: Objection, form.
`
` Counsel -- objection, vague.
`
` A. So let me try to understand what you're
`
` asking me. You're asking me at what time in terms of
`
` not an individual's education, but in terms of when
`
` the patents were granted?
`
` BY MR. KLEINMAN:
`
` Q. Correct.
`
` A. So you're asking me approximately what
`
` time -- I mean --
`
` Q. I can rephrase.
`
` A. Please.
`
` Q. Do you understand that a person of ordinary
`
`Page 10
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` skill in the art, offering an opinion on the meaning
`
` of the terms of a claim, that that person of ordinary
`
` skill in the art is offering their opinion as of the
`
` timeframe that the claims were filed?
`
` A. Yes.
`
` Q. Do you understand that these patents were
`
` filed -- one of them was filed in 2010 and the other
`
` in 2011?
`
` A. Yes.
`
` Q. Would one of ordinary skill in the art have
`
` had access to the Apple or Samsung claim construction
`
` orders in this case at that time?
`
` A. Have access to the claim construction orders?
`
` What do you mean by that?
`
` Q. In 2010 or 2011, would a person of ordinary
`
` skill in the art have access to the Apple or the
`
` Samsung claim construction orders in this case?
`
` A. So are you talking about these claim
`
` construction orders -- I mean, you're talking about
`
` the claims themselves?
`
` Q. No. I'm talking about the orders issued by
`
` the judges.
`
` A. Oh, okay. Then the answer would be no.
`
` Q. In your second declaration in this Huawei
`
` matter, you refer to an Android programming book.
`
`Page 11
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Do you recall that?
`
` A. Yes.
`
` Q. When was that book published?
`
` A. I do not know when it was published.
`
` MR. KLEINMAN: At this point, I'd like to
`
` introduce exhibit Exhibit 1.
`
` (Exhibit 1 was marked for
`
` identification.)
`
` BY MR. KLEINMAN:
`
` Q. For the record, Exhibit 1 is printed
`
` double-sided. It starts at page 1. It concludes
`
` with -- and the last page, a separately numbered
`
` page 91 from a document titled "Document 99-2" up at
`
` the top of that last page of Exhibit 1. At the top of
`
` the Exhibit 1, it is titled, "Document 99-1."
`
` Dr. LaViola, do you have Exhibit 1 in front
`
` of you?
`
` A. Yes.
`
` Q. Do you recognize this?
`
` A. Yes.
`
` Q. What is this?
`
` A. This is my reply declaration for the claim
`
` construction brief.
`
` Q. Filed in this case?
`
` A. Yes.
`
`Page 12
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Q. Can you just look at page 1 in paragraph 2?
`
` A. Uh-huh.
`
` Q. And actually staying with -- oh, the third
`
` bullet down in paragraph 2.
`
` A. Yes.
`
` Q. Do you see a reference in that third bullet
`
` to professional Android sensor programming?
`
` A. Uh-huh, yes.
`
` Q. Does that bullet say when that book was
`
` published?
`
` A. Yes.
`
` Q. When was that book published?
`
` A. 2012.
`
` Q. Would a person of ordinary skill in the art
`
` have had access to that book at the time they were
`
` interpreting these claims?
`
` MR. RAFILSON: Objection, form;
`
` objection, vague.
`
` A. It's possible.
`
` BY MR. KLEINMAN:
`
` Q. How is it possible?
`
` A. Some people will actually put drafts of their
`
` books online, so it is possible that someone of
`
` ordinary skill in the art could have had a version of
`
` this before it was actually officially published.
`
`Page 13
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Q. Is the reference you cite to a draft of the
`
` book?
`
` A. No, it's not.
`
` Q. The person of ordinary skill in the art that
`
` you reference in your testimony, what is the art in
`
` which that person has ordinary skill?
`
` MR. RAFILSON: Objection, form objection,
`
` vague.
`
` A. Would it be possible for you to give me my
`
` original declaration?
`
` BY MR. KLEINMAN:
`
` Q. Sure.
`
` MR. KLEINMAN: Counsel yours has the
`
` letter "M" at the top. I apologize.
`
` MR. RAFILSON: That's fine.
`
` MR. KLEINMAN: Mark this as Exhibit 2,
`
` please.
`
` (Exhibit 2 was marked for
`
` identification.)
`
` BY MR. KLEINMAN:
`
` Q. For the record, Exhibit 2 is numbered
`
` Document 79-6. It's also doubled-sided. It begins at
`
` page 1 and it ends at page 42.
`
` Dr. LaViola, do you recognize Exhibit 2?
`
` A. Yes.
`
`Page 14
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Q. What is Exhibit 2?
`
` A. This is my initial opinions on the claim
`
` construction. It's a brief that I wrote.
`
` Q. In this Huawei matter?
`
` A. Yes.
`
` Q. You asked for this document to be presented
`
` before you?
`
` A. Yes.
`
` Q. Is there a particular portion of it you're
`
` looking for?
`
` A. Yes. I'm looking for -- let me see here --
`
` level of ordinary skill in the art on page 4.
`
` Q. Okay. Paragraph 14?
`
` A. Yes.
`
` Q. I'm going to ask that question again then.
`
` What is the art in which this person has ordinary
`
` skill?
`
` MR. RAFILSON: Objection, form;
`
` objection, vague.
`
` A. If you are talking about the technical skills
`
` that would be necessary for somebody at this level,
`
` then it would be someone who has experience -- at
`
` least a bachelor's degree in computer science,
`
` electrical engineering, mechanical engineering,
`
` physics, or some other equivalent discipline, and
`
`Page 15
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` would have had also potentially some knowledge of
`
` sensors, such as accelerometers, gyroscopes, and
`
` magnetometers, and mobile computing.
`
` And, in addition, the person would be
`
` familiar with Kalman filters and extended Kalman
`
` filters and other types of filters therein.
`
` BY MR. KLEINMAN:
`
` Q. What is the field of art for the '438 patent?
`
` A. There really is not one field of art for the
`
` '438 patent. I mean, it's -- in general, it is
`
` computing, as well as an understanding of electronics,
`
` so there's -- the basic things that you would get in a
`
` computer science degree or electrical engineering or
`
` any of these other technical degrees that I mentioned
`
` in my report, that is what we would consider the art
`
` of the '438 patent.
`
` Q. Is the same true for the '978 patent?
`
` A. Yes.
`
` Q. Do the claims of a patent necessarily cover
`
` all of the disclosed embodiments in that patent?
`
` MR. RAFILSON: Objection, form;
`
` objection, vague.
`
` A. Well, that's a question that I would have
`
` difficulty answering, given the fact that I'm not a
`
` lawyer.
`
`Page 16
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` BY MR. KLEINMAN:
`
` Q. Were you given information on relevant law
`
` when you formed your opinions on the construction of
`
` the claims in this case?
`
` A. I was given some information about relevant
`
` law as I formed my opinions.
`
` Q. Were you given any information on whether the
`
` claims of a patent have to cover all of the disclosed
`
` embodiments in a patent?
`
` MR. RAFILSON: Objection, form. And I'll
`
` just instruct the witness not to disclose the
`
` content of any privileged communications, but
`
` you can answer.
`
` A. To the best of my knowledge, I believe that
`
` the embodiments described -- the specification of the
`
` embodiments described within the patent should be, I
`
` guess, examples that represent the claims that are
`
` being presented in the patent.
`
` BY MR. KLEINMAN:
`
` Q. Does every embodiment in a patent have to be
`
` claimed?
`
` MR. RAFILSON: Objection, form; objection
`
` vague.
`
` A. Does every embodiment in a patent have to be
`
` claimed? Embodiments are not necessarily claimed.
`
`Page 17
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Right? They represent an example of how one might
`
` practice the claims.
`
` BY MR. KLEINMAN:
`
` Q. Can a patent contain examples of how the
`
` invention might be practiced, even if those examples
`
` are outside the scope of the claims?
`
` MR. RAFILSON: Objection, form.
`
` A. That, I can't really answer at this point. I
`
` don't have enough legal knowledge to know the answer
`
` to that question.
`
` BY MR. KLEINMAN:
`
` Q. Do you recall that the '438 and the '978
`
` patent have a Figure 6?
`
` A. Yes, I do.
`
` Q. Do you recall what that Figure 6 illustrates?
`
` A. Do you have a copy of the '438 patent?
`
` Q. Sure.
`
` (Exhibit 3 was marked for
`
` identification.)
`
` BY MR. KLEINMAN:
`
` Q. What has been marked as Exhibit 3 is printed
`
` double-sided and it is labeled Patent No. US
`
` 8,441,438. The first page is not numbered. The last
`
` page has column numbers 21 and 22 on it.
`
` A. My copy is not double-sided.
`
`Page 18
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Q. Thank you. I stand corrected. It's not
`
` printed double-sided. That's an unfortunate treatment
`
` of our trees.
`
` Dr. LaViola, do you have Exhibit 3 in front
`
` of you?
`
` A. Yes, I do.
`
` Q. Do you recognize Exhibit 3?
`
` A. Yes, I do.
`
` Q. What is it?
`
` A. This is the '438 patent.
`
` Q. Okay. Do the claims of the '438 patent
`
` necessarily cover Figure 6?
`
` MR. RAFILSON: Objection, form.
`
` A. Based on what I see here, I would say that
`
` the claims describe -- or, in other words, Figure 6
`
` would be something -- a representation of an
`
` embodiment that would be covered in the claims.
`
` BY MR. KLEINMAN:
`
` Q. You answered that question after glancing at
`
` the claims?
`
` A. I looked at some of the claims and also the
`
` specification.
`
` Q. If a claim did not literally cover Figure 6,
`
` would a person of ordinary skill in the art be
`
` obligated to interpret the claim as if it did cover
`
`Page 19
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Figure 6?
`
` MR. RAFILSON: Objection, form.
`
` A. I couldn't answer that question.
`
` BY MR. KLEINMAN:
`
` Q. Why not?
`
` A. Because I don't know all of the legal
`
` ramifications of the patent law.
`
` Q. Okay. When you offered your testimony as to
`
` how a person of ordinary skill in the art would
`
` understand the claims of the '438 patent, did you
`
` assume that, regardless of the literal language of
`
` those claims, a person of ordinary skill in the art
`
` would have to construe the claims to cover Figure 6?
`
` MR. RAFILSON: Objection, form; objection
`
` vague.
`
` A. I believe that, looking at the claims and
`
` reading the specification, you would be able to
`
` determine that the patent claims were -- or the claims
`
` themselves would cover Figure 6.
`
` BY MR. KLEINMAN:
`
` Q. Are there any preferred embodiments in the
`
` '438 patent?
`
` MR. RAFILSON: Objection, form.
`
` A. The preferred embodiments would be -- I don't
`
` recall if the patent specification actually says the
`
`Page 20
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` word "preferred," but I can say that the specification
`
` that they talk about for the main embodiment they
`
` present in the specification would probably be the
`
` preferred embodiment.
`
` BY MR. KLEINMAN:
`
` Q. Is the embodiment illustrated in Figure 6 of
`
` the '438 patent a preferred embodiment of the '438
`
` patent?
`
` MR. RAFILSON: Objection, form.
`
` A. I would say that Figure 6 represents part of
`
` a preferred embodiment.
`
` BY MR. KLEINMAN:
`
` Q. What's the basis for you saying that?
`
` A. Well, based on the nature of the claims, as
`
` well as the nature of the description in the abstract
`
` and the -- what is it now -- the summary invention --
`
` it appears that, from those two, along with the
`
` claims, that Figure 6 would be an integral piece of
`
` the embodiment.
`
` BY MR. KLEINMAN:
`
` Q. What is it about the abstract that suggests
`
` that Figure 6 is -- I believe you said an integral
`
` piece?
`
` A. Yeah. Well, the abstract mentioned a 3D
`
` pointing device. It mentions six-axis motion sensor
`
`Page 21
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` module, and it mentions that there's processing and
`
` processing modules that are used to help determine 3D
`
` orientation. And Figure 6 shows a pointing device and
`
` it also shows components of the pointing device, such
`
` as the accelerometer, gyroscope, and processing and
`
` transmitting modules.
`
` Q. Does Figure 5 also show those things?
`
` A. Figure 5, yes, it does.
`
` Q. Is there anything in the '438 patent that
`
` makes you think Figure 6 is a preferred embodiment and
`
` Figure 5 is not?
`
` MR. RAFILSON: Objection, form; objection
`
` vague.
`
` A. Yes, because, in the specification, it also
`
` mentions the notion of having the pointing -- a
`
` screen -- display screen -- being a part of the
`
` three-dimensional pointing device, and Figure 6 shows
`
` that.
`
` BY MR. KLEINMAN:
`
` Q. Can you turn to column 10 of Exhibit 3,
`
` please?
`
` A. Column 10. Okay.
`
` Q. Do you see, around line 9, there's a
`
` paragraph beginning "Figure 6"?
`
` A. Yeah.
`
`Page 22
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` Q. Is that the portion of the specification you
`
` were just referring to?
`
` A. Yes.
`
` Q. Is there another portion of the specification
`
` you are also referring to?
`
` A. Well, you asked me about Figure 5, so the
`
` other place would be in column 9, starting around
`
` line 6.
`
` Q. Is there any other portion of the
`
` specification that refers to the built-in display?
`
` A. There are other places in the patent that
`
` mention display. That would refer to, in general,
`
` having a display attached to the 3D pointing device or
`
` it would be as part of the 3D pointing device.
`
` Q. Are you saying that there are other portions
`
` of the specification that refer to a display, and that
`
` it's your opinion that reference to a display would
`
` also apply to the built-in display?
`
` A. Yes.
`
` Q. Are there any other portions that you recall
`
` that refer specifically to the built-in display other
`
` than column 10, starting at line 9?
`
` A. There may be others, but I don't recall them
`
` at the moment.
`
` Q. Can you turn to column 5 of the '438 patent?
`
`Page 23
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` A. Uh-huh.
`
` Q. Do you see the paragraph starting at line 14,
`
` "According to another example embodiment"?
`
` A. Yes.
`
` Q. So in the line I just mentioned, line 14, it
`
` refers to an example embodiment; correct?
`
` A. Uh-huh.
`
` Q. Can you look down at line 18, the sentence
`
` that starts at the end of line 18?
`
` A. "In one preferred?"
`
` Q. Correct. Can you see how that full -- the
`
` more complete beginning of that sentence that starts
`
` at the end of line 18 is, "In one preferred embodiment
`
` of the present invention"?
`
` A. Uh-huh.
`
` Q. Is that correct?
`
` A. It says, "In one preferred embodiment of the
`
` present invention."
`
` Q. Okay. Can you turn back to column 10?
`
` A. Uh-huh.
`
` Q. Is there anything in column 10, between lines
`
` 9 and 41, that refers to any aspect of Figure 6 as
`
` part of a preferred embodiment?
`
` A. To the best of my knowledge, I don't see
`
` anything that refers to -- wait a minute -- okay.
`
`Page 24
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` There is a "preferred" word in there, but it is not
`
` referring to Figure 6.
`
` Q. What are you referring to?
`
` A. This is column 10, line 35, "spatial pointer
`
` reference frame, preferably about each of the three
`
` orthogonal coordinate axes."
`
` Q. While we're doing this, I'm going to
`
` introduce Exhibit 4, which will be the '978 patent.
`
` A. Okay.
`
` (Exhibit 4 was marked for
`
` identification.)
`
` BY MR. KLEINMAN:
`
` Q. Exhibit 4 is double-sided. At the top of
`
` the first page, which is not numbered, it has
`
` US 8,552,978. And the back of the last page has
`
` columns 37 and 38.
`
` A. Uh-huh.
`
` Q. Dr. LaViola, do you have Exhibit 4 in front
`
` of you?
`
` A. Yes.
`
` Q. Do you recognize Exhibit 4?
`
` A. Yes.
`
` Q. What is it?
`
` A. The '978 patent.
`
` Q. Can you turn to Figure 6 of the '978 patent?
`
`Page 25
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` A. Uh-huh, yes.
`
` Q. Is that the same as Figure 6 of the '438
`
` patent?
`
` A. It's slightly different.
`
` Q. How is it different?
`
` MR. RAFILSON: Objection, form.
`
` A. The numbering of certain pieces. It
`
` introduced an additional piece.
`
` BY MR. KLEINMAN:
`
` Q. Oh, that's right. So 645 is present in the
`
` '978 patent, but not in the '438 patent?
`
` A. Yes.
`
` Q. Also, 602 is labeled in the '978 patent and
`
` not in the '438 patent?
`
` A. Yes.
`
` Q. Are there any other differences that you see?
`
` A. Not that I see.
`
` Q. Can you turn to column 13 of Exhibit 4, the
`
` '978 patent?
`
` A. Uh-huh, yes. Okay.
`
` Q. Do you see that line 5 of column 13 begins,
`
` "Figure 6 is an exploded diagram"?
`
` A. Yes.
`
` Q. Can you take a moment and look for yourself
`
` at column 13, lines 5 through 59, and let me know when
`
`Page 26
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` you're done?
`
` A. Okay.
`
` Q. I'm just going to be asking you if you see
`
` anything in those lines that refers to any aspect of
`
` Figure 6 as a preferred embodiment of the '978 patent.
`
` A. I do not see anything referring to preferred
`
` embodiment in those lines that you mentioned.
`
` Q. Are you aware of any other aspect of the '978
`
` patent that describes any elements of Figure 6 as part
`
` of a preferred embodiment?
`
` A. Not that I'm aware of.
`
` Q. Are you doing okay?
`
` A. Yeah.
`
` Q. Can you turn back to Exhibit 2? That is your
`
` declaration in support of CyWee's opening claim
`
` construction brief?
`
` A. Yes.
`
` Q. Can you turn to page 6, paragraph 20?
`
` A. Page 6, paragraph 20. Yes.
`
` Q. Do you see at the beginning of -- sorry -- in
`
` the middle of the second line of paragraph 20 --
`
` A. Uh-huh.
`
` Q. -- continuing to the end of the 5th line, you
`
` present CyWee's alternative proposal for the
`
` construction of the term "six-axis motion sensor
`
`Page 27
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` module"?
`
` A. Yes.
`
` Q. Do you have an understanding as to how this
`
` proposed construction would be used by the parties and
`
` the courts if it's adopted by the court?
`
` MR. RAFILSON: Objection, form.
`
` A. If it's adopted by the court, then it
`
` represents what -- it would provide a meaning to the
`
` term "six-axis motion sensor module."
`
` BY MR. KLEINMAN:
`
` Q. Instead of using the term "six-axis motion
`
` sensor module," when, for example, the jury is
`
` presented with this claim, they would be told that
`
` six-axis motion sensor module has the meaning of
`
` whatever it is the court orders the construction to
`
` be?
`
` MR. RAFILSON: Objection, form.
`
` A. I don't know what they would tell a jury or
`
` not. I've never been to a jury trial.
`
` BY MR. KLEINMAN:
`
` Q. Have you ever been an expert in an IPR
`
` proceeding?
`
` A. Yeah. One or two.
`
` Q. Did you offer opinions about claim
`
` construction in those proceedings?
`
`Page 28
`
`Veritext Legal Solutions
`866 299-5127
`
`

`

`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
`
` A. I can't recall if I did or I didn't.
`
` Q. Keeping that Exhibit 2 in front of you, can
`
` you also bring out Exhibit 3?
`
` A. Yes.
`
` Q. Can you turn towards the back to column 18,
`
` claim 1?
`
` A. Column 18, claim 1. Yes, I see it.
`
` Q. Do you see that claim 1 recites that the
`
` six-axis motion sensor module is attached to the PCB?
`
` A. Yes.
`
` Q. Do you see that -- let me start that again.
`
` Can you read that third element, beginning at
`
` "Six-axis motion sensor module," but replace "Six-axis
`
` motion sensor module" with "CyWee's alternative
`
` proposed construction"?
`
` A. So -- let's see here. "A collection of
`
` components comprising of a rotation sensor, comprising
`
` of one or more gyroscopes for collectively generating
`
` three angular velocities, and one or more
`
` accelerometers for collectively generating three axial
`
` accelera

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

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.

throbber

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.

Become a Member

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

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket