UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`------------------------------X
`SLING TV, L.L.C., SLING MEDIA,:
`L.L.C., DISH NETWORK L.L.C., :
`DISH TECHNOLOGIES L.L.C., :
` :
` Petitioners, :
` :
` :
` :
` :
` :
` :
` Patent Owner. :
`------------------------------X
`
`REALTIME ADAPTIVE
`STREAMING LLC,
`
` vs.
`
` Case No.
` IPR2018-01331
`
` Patent
` 8,867,610
`
` Deposition of SCOTT T. ACTON, Ph.D.
`
` Washington, D.C.
`
` Friday, May 10, 2019 - 2:15 p.m.
`
`Reported by:
`
`Dawn A. Jaques
`
`Job no: 25232
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`------------------------------X
`SLING TV, L.L.C., SLING MEDIA,:
`L.L.C., DISH NETWORK L.L.C., :
`DISH TECHNOLOGIES L.L.C., :
` :
` Petitioners, :
` :
` :
` :
` :
` :
` :
` Patent Owner. :
`------------------------------X
`
`REALTIME ADAPTIVE
`STREAMING LLC,
`
` vs.
`
` Case No.
` IPR2018-01331
`
` Patent
` 8,867,610
`
` Deposition of SCOTT T. ACTON, Ph.D.
`
` Washington, D.C.
`
` Friday, May 10, 2019 - 2:15 p.m.
`
`Reported by:
`
`Dawn A. Jaques
`
`Job no: 25232
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`
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`Page 2
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`Examination of:
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` SCOTT T. ACTON, Ph.D.,
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`the witness, was called for cross-examination by
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`counsel for the Patent Owner, pursuant to notice,
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`commencing at 2:15 p.m., at the law offices of
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`Fish & Richardson PC, 1000 Main Avenue, Southwest,
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`Washington, D.C., before Dawn A. Jaques, CSR, CLR,
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`and Notary Public in and for the District of
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`Columbia.
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`Page 3
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`APPEARANCES:
`
`On behalf of the Petitioner:
`
` ADAM R. SHARTZER, ESQ.
`
` MATTHEW P. MOSTELLER, ESQ.
`
` Fish & Richardson PC
`
` 1000 Maine Avenue, SW
`
` Suite 1000
`
` Washington, D.C. 20024
`
` (202) 626-6380
`
` (202) 626-7751
`
` shartzer@fr.com
`
` mosteller@fr.com
`
`On behalf of the Patent Owner:
`
` PHILIP X. WANG, ESQ.
`
` Russ August & Kabat
`
` 12424 Wilshire Boulevard
`
` 12th Floor
`
` Los Angeles, California 90025
`
` (310) 826-7474
`
` pwang@raklaw.com
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` I-N-D-E-X
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`WITNESS: PAGE:
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`SCOTT T. ACTON, Ph.D.
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` Examination by Mr. Wang .......... 5
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` Examination by Mr. Shartzer ...... 93
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`
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` E-X-H-I-B-I-T-S
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`ACTON EXHIBIT: PAGE:
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`Exhibit 1 Compilation of the Declaration
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` of Professor Acton, and the
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` Fallon ('535), Dvir ('001), and
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` Ishii ('789) references ...... 6
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`Exhibit 2 Expert Declaration of
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` Dr. Alan Bovik ............... 48
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` P R O C E E D I N G S
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`Whereupon,
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` SCOTT T. ACTON, Ph.D.
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` was called as a witness, after having been
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` first duly sworn by the Notary Public, was
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` examined and testified as follows:
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` EXAMINATION BY COUNSEL FOR THE PATENT OWNER
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` BY MR. WANG:
`
` Q Good afternoon, Dr. Acton. So my name 02:15:49
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`is Philip Wang. I'm with the law firm 02:15:51
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`Russ August & Kabat, and this is your deposition 02:15:54
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`in the IPR No. 2018-01331, on U.S. patent 02:15:57
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`number 8,867,610. The petitioners are Sling and 02:16:04
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`Dish, and the Patent Owner is Realtime Adaptive 02:16:11
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`Streaming. Good afternoon. 02:16:15
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` A Good afternoon. 02:16:17
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` Q So this is the afternoon session. We 02:16:18
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`had your deposition in the '535 patent earlier 02:16:20
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`this afternoon -- I mean earlier today. 02:16:24
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` We don't need to go back through the 02:16:28
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`ground rules, but you're well familiar with the 02:16:31
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`rules for a deposition as we discussed this 02:16:33
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`morning, right? 02:16:35
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` A I am. 02:16:36
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` Q And is there anything that would 02:16:37
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`prevent you from thinking clearly and testifying 02:16:40
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`truthfully today? 02:16:43
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` A No, there's not. 02:16:45
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` Q And do you understand that your 02:16:46
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`testimony is under oath, subject to penalty of 02:16:48
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`perjury? 02:16:51
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` A I do. 02:16:53
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` Q Dr. Acton, what did you do to prepare 02:16:57
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`for this deposition? 02:17:00
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` A Well, first I looked over the patent, 02:17:12
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`which I'm going to call the '610; then I looked 02:17:16
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`over the references, in particular Vishwanath, 02:17:21
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`Ishii, Kalra. That's at least part of my 02:17:28
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`preparation. 02:17:41
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` Q Dr. Acton, I see that you brought a 02:17:42
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`spiral with you today; is that right? 02:17:44
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` A That is correct. 02:17:47
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` Q Could we introduce that as an exhibit? 02:17:48
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`And could you please describe the spiral and 02:17:52
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`describe all the documents contained therein? 02:17:55
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` And I would ask you, like you did this 02:17:58
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`morning, to please refer to the exhibit numbers as 02:18:00
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`you do so. 02:18:04
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` A Certainly. So the first item in my 02:18:06
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`spiral is DISH 1003, which is my declaration on 02:18:13
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`the '610 patent. This time there's no additional 02:18:29
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`supplement. 02:18:42
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` The next document is the '610 patent 02:18:45
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`itself, which is labeled DISH 1001. 02:18:50
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` The next item in my spiral is 02:19:03
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`DISH 1004, which I pronounce unauthoritatively 02:19:09
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`"Vishwanath." 02:19:14
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` The next item in my spiral is 02:19:24
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`DISH 1005, which I call Ishii. We've already 02:19:29
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`discussed Ishii a little bit this morning. 02:19:39
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` The final item in my spiral is 02:19:42
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`DISH 1006, which I call Kalra, K-A-L-R-A, and I 02:19:46
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`believe that is the final item. 02:19:58
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` Q Can we please turn to the table of 02:20:10
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`contents of your declaration, please? 02:20:12
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` A Yes. 02:20:18
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` Q I want to at a high level go through 02:20:19
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`the different grounds that you have in your 02:20:22
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`declaration, and you have four grounds, correct? 02:20:25
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` A That is correct. 02:20:31
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` Q Ground 1 is based on anticipation of 02:20:33
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`Vishwanath. Do you see that? 02:20:37
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` A I do see that. 02:20:41
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` Q And here you correctly have it as 02:20:42
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`under anticipation under Section 102, right? 02:20:44
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` A Except for one spot. 02:20:49
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` Q All right. And for that you meant to 02:20:51
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`write 102? 02:20:53
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` A That's correct. 02:20:54
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` Q Apart from this, do you have any other 02:20:55
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`corrections or changes to your declaration that 02:20:57
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`you're aware of? 02:20:59
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` A Not that I'm aware of. 02:21:02
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` Q Ground 2 is obviousness based on 02:21:04
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`Vishwanath, correct? 02:21:07
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` A That's correct. 02:21:13
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` Q Ground 3 is obviousness based on 02:21:16
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`Vishwanath and Ishii, correct? 02:21:18
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` A Correct. 02:21:24
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` Q And Ground 4 is obviousness based on 02:21:25
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`Vishwanath in view of Kalra, correct? 02:21:29
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` A That is correct. 02:21:39
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` Q So to recap, Ground 1 is based on 02:21:40
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`anticipation, and Grounds 2, 3 and 4 are based on 02:21:42
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`obviousness; is that right? 02:21:46
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` A Yes. 02:21:49
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` Q Could you please turn to paragraph 27 02:21:56
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`of your declaration, please. From paragraphs 27 02:22:04
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`through 30, you describe the materials that you 02:22:19
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`considered in providing your declaration; is that 02:22:23
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`correct? 02:22:28
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` A That's correct. 02:22:29
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` Q Is there anything missing from here 02:22:31
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`that you relied on or you reviewed in preparing 02:22:34
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`your declaration or that you considered? 02:22:38
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` A So I'm going to assume your question 02:22:44
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`covers everything I mentioned in paragraphs 27 02:22:47
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`through 30, which, for example, paragraph 29 talks 02:22:50
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`about other background references without 02:22:56
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`specificity, and 30 also discusses the knowledge 02:22:59
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`and experience of a person of ordinary skill. 02:23:20
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` But I think the answer to your 02:23:26
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`question is there isn't anything additional that 02:23:29
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`comes to mind. 02:23:31
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` Q This document was produced at least 02:23:33
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`several months ago, correct? 02:23:38
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` A Correct. 02:23:41
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` Q Since this was submitted, have you 02:23:42
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`reviewed any other materials? Would you have 02:23:45
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`anything else to add to this list that would be 02:23:50
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`relevant to your opinions? 02:23:52
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` A Nothing comes to mind, no. 02:23:53
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` Q Have you reviewed the Board's 02:23:56
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`institution decision in the '610 IPR? 02:24:00
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` A I have not. 02:24:04
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` Q Have you reviewed Patent Owner's 02:24:05
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`preliminary response in this IPR? 02:24:06
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` A I don't believe so. I think we -- I 02:24:12
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`won't refer to the other deposition, sorry. 02:24:14
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` Q Have you reviewed any other documents 02:24:20
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`submitted or filed in this IPR since you submitted 02:24:22
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`this declaration? 02:24:26
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` A I can't think of any. 02:24:36
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` Q Can we please turn to paragraph 31, 02:24:41
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`that section of your declaration? 02:24:44
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` So these are a statement of legal 02:24:49
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`principles. Do you see that? 02:24:53
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` A I do. 02:24:55
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` Q As we discussed in the '535 IPR, were 02:24:57
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`you provided with these principles from counsel? 02:25:02
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` A I was. 02:25:05
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` Q Do you know if this is the same 02:25:07
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`language that was in the other IPR? 02:25:08
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` A It appears to be so, yes. 02:25:38
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` Q I'll ask you about paragraph 33. 02:25:44
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` So in paragraph 33 of your declaration 02:25:49
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`in this IPR, you have the statement, "In order for 02:25:52
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`the invention to be anticipated, each element of 02:25:59
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`the claimed invention must be described or 02:26:00
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`embodied, either expressly or inherently, in the 02:26:02
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`single prior art reference. In order for a 02:26:06
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`reference to inherently disclose a claim 02:26:08
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`limitation, that claim limitation must necessarily 02:26:09
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`be present in the reference." 02:26:14
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` Do you see that? 02:26:17
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` A Yes. 02:26:18
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` Q Do you recall if you provide any 02:26:19
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`opinions in the '610 declaration about a 02:26:22
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`limitation being inherently disclosed? 02:26:25
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` A So I don't have the ability to 02:26:48
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`automatically search the document. I could look 02:26:50
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`through the entire document for inherency. 02:26:53
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` Q Do you recall if you offered those 02:27:01
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`things sitting right now without looking through 02:27:04
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`the whole document? 02:27:06
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` A No, not off the top of my head. 02:27:07
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` Q But if you did offer that opinion, it 02:27:12
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`would be in your declaration? 02:27:15
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` A I agree with that. 02:27:17
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` Q And does paragraph 33 set forth the 02:27:20
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`legal standard of anticipation that you applied in 02:27:25
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`your invalidity opinions with respect to 02:27:31
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`anticipation? 02:27:33
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` MR. SHARTZER: Objection to form. 02:27:34
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` THE WITNESS: It's congruent with my 02:27:39
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`application of anticipation in my analysis, yes. 02:27:42
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` BY MR. WANG: 02:27:45
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` Q Is it different from your application 02:27:45
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`of anticipation in your analysis? 02:27:49
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` A So you're asking if 33 is different 02:27:58
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`than the way that I applied anticipation in my 02:28:01
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`analysis? 02:28:05
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` Q Yes, under Ground 1. 02:28:06
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` A No. 02:28:08
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` Q Apart from what's stated in 02:28:12
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`paragraph 33, did you apply any other legal test 02:28:14
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`or standard for anticipation in your analysis? 02:28:20
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` A So paragraph 33 includes what 02:28:26
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`attorneys call Section 102, which has its own 02:28:31
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`disclosure and more details. 02:28:40
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` This is just sort of a summary 02:28:42
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`paragraph on anticipation, my paragraph 33. 02:28:44
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` Q Did you review Section 102? 02:28:49
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` A I can't recall. 02:28:54
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` Q Are you familiar with Section 102? 02:28:56
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` A To the extent that I should be as an 02:29:02
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`engineer. I'm not an attorney and I haven't gone 02:29:05
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`to law school. 02:29:09
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` Q Did you apply the requirements of 02:29:10
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`Section 102 in your anticipation analysis? 02:29:13
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` A I think I would agree with that, yes. 02:29:19
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` Q If there's some requirement that's not 02:29:29
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`in this paragraph and not in Section 102, do you 02:29:31
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`know if you applied it or not? 02:29:34
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` A No. 02:29:37
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` Q You did not apply it? 02:29:40
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` A I -- 02:29:43
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` MR. SHARTZER: Objection to form. 02:29:44
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` THE WITNESS: I think the way your 02:29:47
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`question was stated was do I know if I applied it 02:29:48
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`or not, and we don't even know what "it" is. 02:29:52
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` BY MR. WANG: 02:29:56
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` Q So you don't know if you applied it? 02:29:56
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` MR. SHARTZER: Objection to form. 02:29:58
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` BY MR. WANG: 02:30:01
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` Q I'm not trying to confuse you, Doctor. 02:30:01
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` When you answer no, you meant that you 02:30:04
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`don't know whether you applied it or not? 02:30:06
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` MR. SHARTZER: Objection to form. 02:30:09
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` THE WITNESS: And can we say what the 02:30:10
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`antecedent is of "it"? 02:30:12
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` BY MR. WANG: 02:30:16
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` Q If there is some legal requirement 02:30:16
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`that is not stated in paragraph 33 or Section 102, 02:30:19
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`do you know if you consider that or applied that 02:30:27
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`in your anticipation analysis? 02:30:30
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` MR. SHARTZER: Objection to form. 02:30:33
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` THE WITNESS: So let me try to break 02:30:40
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`this down. I guess you're asking me if there's 02:30:42
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`something in Section 102 that's part of the 02:30:46
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`description of anticipation that I didn't apply in 02:30:53
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`my analysis. 02:31:01
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` BY MR. WANG: 02:31:02
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` Q I'm asking you if paragraph 33 here, 02:31:02
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`which is a description of anticipation, if it's a 02:31:09
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`complete description of the legal test that you 02:31:11
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`applied in your analysis? 02:31:16
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` A I don't think I'm comfortable saying 02:31:31
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`it's a complete description, but it is congruent 02:31:33
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`with the analysis that I performed. 02:31:47
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` Q What other description of anticipation 02:31:53
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`did you apply, if this isn't a complete 02:31:56
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`description? 02:32:00
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` MR. SHARTZER: Objection to form, 02:32:03
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`foundation. 02:32:04
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` THE WITNESS: First, I think that sort 02:32:06
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`of mischaracterizes my answer, which was I'm not 02:32:07
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`comfortable saying that it's a complete 02:32:10
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`description. 02:32:13
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` BY MR. WANG: 02:32:14
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` Q Why aren't you comfortable? 02:32:14
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` A Because "complete" seems like a loaded 02:32:17
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`adjective that would suggest that all of the ideas 02:32:20
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`that an attorney might have on anticipation could 02:32:29
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`been encapsulated in one, two, three, four, five 02:32:31
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`sentences, six sentences, which I'm not 02:32:40
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`comfortable with. 02:32:47
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` Q Let's move on to the next paragraph, 02:32:48
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`obviousness. 02:32:50
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` Is this a description of the legal 02:32:51
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`test for obviousness that you applied in your 02:32:55
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`obviousness analysis in Grounds 2 through 4? 02:32:57
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` A Could you read back the question, 02:33:11
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`please? 02:33:13
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` Q Is the description of obviousness in 02:33:15
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`paragraph 34 consistent with what you applied in 02:33:17
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`your obviousness analysis in Grounds 2 through 4? 02:33:25
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` A So this question has "consistent" in 02:33:37
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`it, and I appreciate that, and I say yes. 02:33:39
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` MR. SHARTZER: Mr. Wang, I think we've 02:33:44
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`lost the realtime feed again. 02:33:47
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` MR. WANG: Let's go off the record. 02:33:51
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` (Pause in the proceedings.) 02:39:32
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` BY MR. WANG: 02:39:33
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` Q Can you please turn to paragraph 52 of 02:51:40
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`your declaration? This is the Claim Construction 02:55:23
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`section of your declaration, paragraphs 52 through 02:55:29
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`55. Do you see that? 02:55:32
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` A I do. 02:55:34
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` Q Similar to the '535 IPR, were these 02:55:35
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`constructions provided to you from counsel? 02:55:39
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` A They were. 02:55:43
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` Q And in your declaration, you applied 02:55:44
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`these constructions, correct? 02:55:47
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` A That is correct. 02:55:51
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` Q And you didn't offer any opinions 02:55:51
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`about whether or not you agreed with the 02:55:54
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`constructions or analyzed them from a claim 02:55:57
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`construction perspective? 02:56:00
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` MR. SHARTZER: Objection to form, 02:56:03
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`compound. 02:56:04
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` THE WITNESS: I believe that is 02:56:11
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`accurate. 02:56:11
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` BY MR. WANG: 02:56:32
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` Q I want to ask you about the 02:56:32
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`construction for compression algorithms being 02:56:34
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`asymmetric in paragraph 55, and Dish's proposed 02:56:38
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`construction for this term is "an algorithm where 02:56:47
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`compression of data and decompression of the 02:56:50
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`compressed data take different amounts of time." 02:56:53
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` Do you see that? 02:56:56
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` A I do. 02:56:57
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` Q And this is the same proposed 02:56:57
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`construction in the '535 IPR, correct? 02:57:01
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` A It is. 02:57:05
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` Q Which we discussed earlier today in 02:57:06
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`some detail. 02:57:09
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` I also want to turn your attention 02:57:14
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`very quickly to paragraph 143. And in 02:57:17
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`paragraph 143, you say that, "A POSITA would 02:57:28
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`understand that, even though Vishwanath discloses 02:57:54
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`some exemplary symmetric compression algorithms." 02:57:56
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` Do you see that part of the sentence? 02:58:02
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` A I do. 02:58:04
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` Q What are the symmetric compression 02:58:06
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`algorithms that Vishwanath discloses? 02:58:12
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` MR. SHARTZER: Can I have the question 02:59:17
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`read back, please? 02:59:18
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` (The reporter read back the question.) 02:59:29
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` THE WITNESS: So let's look at 02:59:45
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`column 6 of Vishwanath, starting at line 62. 02:59:47
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`Vishwanath says (reading from patent) a number of 02:59:53
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`compression algorithms are applicable to this 03:00:01
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`invention. They include Lempel-Ziv, Run Length 03:00:04
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`Encoding, JPEG, Hierarchical Vector Quantization, 03:00:11
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`ADPCM, MPEG, MPEG2, H.263, and Hierarchical Vector 03:00:21
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`Quantization with Conditional Replenishment. 03:00:36
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` In the '535 deposition earlier today, 03:00:47
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`I think that we agreed that one exemplary 03:00:51
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`symmetric algorithm would be run-length encoding. 03:00:58
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` BY MR. WANG: 03:01:05
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` Q Are any of the other algorithms here, 03:01:05
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`could they be considered a symmetrical algorithm? 03:01:07
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` MR. SHARTZER: Did you say symmetrical 03:01:11
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`or a -- 03:01:13
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` MR. WANG: Symmetrical. 03:01:15
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` THE WITNESS: Which maybe we can agree 03:01:17
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`is also symmetric? 03:01:19
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` BY MR. WANG: 03:01:20
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` Q Yes. 03:01:21
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` A So back to the question of are there 03:01:24
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`any others, an answer would be JPEG. I believe 03:01:29
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`JPEG. It would be hard to argue that JPEG was 03:01:39
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`exemplary asymmetric, so therefore, those of skill 03:01:43
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`would consider JPEG to be an exemplary symmetric 03:01:51
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`algorithm. 03:01:58
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` Q Any others in this list? 03:02:05
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` MR. SHARTZER: Objection to form. 03:02:11
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` THE WITNESS: So let me direct you to 03:02:15
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`Figure 7 of Vishwanath. 03:02:16
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` 03:02:18
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` BY MR. WANG: 03:02:22
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` Q Can we stick with this list for a 03:02:22
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`second -- 03:02:24
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` A Sure, but -- okay, that's fine. 03:02:25
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` Q -- or is Figure 7 -- 03:02:27
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` MR. SHARTZER: The witness is 03:02:30
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`providing an answer. 03:02:30
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` BY MR. WANG: 03:02:32
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` Q Are you still responding with respect 03:02:32
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`to this list? 03:02:33
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` A Yes. 03:02:36
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` Q Okay, we can look at Figure 7 then. 03:02:36
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` A So the list that I described in 03:02:47
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`column 6 is basically visualized in this figure, 03:02:50
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`Figure 7, in terms of algorithms that might be 03:02:56
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`appropriate for a particular form of data and 03:03:03
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`their compute power. So I was just going to 03:03:07
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`mention that one of skill could argue that VQ, 03:03:10
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`vector quantization, and even hierarchical vector 03:03:16
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`quantization, were symmetric. 03:03:19
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` A counterargument to that would be the 03:03:25
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`building of the vector quantization dictionary, 03:03:28
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`which takes a lot of time, but if the dictionary 03:03:32
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`were prefabricated, which is typically the case, 03:03:38
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`vector quantization, or VQ, would be known as an 03:03:43
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`exemplary symmetric algorithm. 03:03:50
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` Q Okay, can we go back to the list in 03:04:02
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`column 6? 03:04:06
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` So apart from what you've testified, 03:04:09
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`are there any other algorithms in column 6 at the 03:04:10
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`bottom that could be considered symmetric? 03:04:15
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` A Yes. 03:04:19
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` Q What else? 03:04:21
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` A So if one were to argue that vector 03:04:24
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`quantization -- again, I had my caveat about the 03:04:28
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`dictionary building. If one were to argue that 03:04:33
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`vector quantization were, in general, symmetric, 03:04:36
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`it would be hard to argue against hierarchical 03:04:42
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`vector quantization with conditional replenishment 03:04:48
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`not being symmetric. 03:04:55
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` In other words, in general, that could 03:04:57
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`be considered symmetric. Of course, there's 03:05:06
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`exceptions. 03:05:08
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` Q Anything else in this list? 03:05:09
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` A Yes. 03:05:17
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` Q What else? 03:05:17
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` A First of all, just to step back and 03:05:23
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`say what we're talking about. We're talking about 03:05:26
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`algorithms that in general could be examples of 03:05:29
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`symmetric algorithms, in general, and I would say 03:05:34
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`PCM is one of these. 03:05:38
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` PCM stands for pulse-code modulation, 03:05:43
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`and of course the D is for differential, and the A 03:05:49
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`is for adaptive that precede it in this example. 03:05:53
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` Essentially, it's a very simple method 03:06:00
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`that encodes the differences between samples and 03:06:06
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`requires very little computation on either side, 03:06:10
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`encoding or decoding. I would consider it to be, 03:06:13
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`in general, in the symmetric category. 03:06:17
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` Now, one coul
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