UNITED STATES DISTRICT COURT
`
` CENTRAL DISTRICT OF CALIFORNIA
`
`-----------------------------------
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`BLACKBERRY LIMITED, a Canadian )
`
`corporation, )
`
` Plaintiff )
`
` )
`
`v. ) CASE NO.
`
` ) 2:18-CV-02693-GW(KSx)
`
`SNAP INC., a Delaware corporation, )
`
` Defendant. )
`
`___________________________________)
`
` VIDEOTAPED Deposition of PATRICK MCDANIEL, PH.D.,
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`taken at the offices of PAUL HASTINGS LLP, 875 15th
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`Street NW, Washington, D.C., beginning at 9:06 a.m.,
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`on TUESDAY, FEBRUARY 5, 2019, before Nancy J. Martin,
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`a Registered Merit Reporter, Certified Shorthand Reporter.
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`JOB NO. 3215691
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`PAGES 1 - 98
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`Page 1
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`SNAP INC. v. BLACKBERRY LIMITED
`IPR2019-00715
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`Snap Inc. Ex. 1022 Page 0001
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`1 A P P E A R A N C E S :
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`1 WASHINGTON, D.C., TUESDAY, FEBRUARY 5, 2019; 9:06 A.M.
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`2 - - -
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`3 THE VIDEOGRAPHER: Good morning. We are
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`4 going on the record at 9:06 a.m. on February 05, 2019.
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`5 Please note that the microphones are sensitive and may
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`6 pick up whispering, private conversations, cellular
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`7 interference. Please turn off all cell phones or
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`8 place them away from the microphones as they can
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`9 interfere with the deposition audio. Audio and video
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`10 recording will continue to take place unless all
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`11 parties agree to go off the record.
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`12 This is Unit No. 1 of the video recorded
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`13 deposition of Mr. Patrick McDaniel taken by counsel
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`14 for plaintiff in the matter of Blackberry Limited, a
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`15 Canadian corporation, vs. Snap, Inc., a Delaware
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`16 corporation filed in the United States District Court,
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`17 Central District of California. Case
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`18 No. C18-cv-0693-GW (KSx).
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`19 This deposition is being held at Paul
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`20 Hastings, LLP, located at 875 15th Street, Northwest,
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`21 Washington, D.C.
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`22 My name is Orson Breitway from the firm
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`Page 4
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`1 Veritext Legal Solutions, and I'm the videographer.
`2 The court reporter is Nancy Martin from the firm
`3 Veritext Legal Solutions.
`4 Counsel and all present in the room will now
`5 state their appearance and affiliations for the
`6 record.
`7 MR. PETERMAN: Chad Peterman from Paul
`8 Hastings on behalf of the defendant, Snap. And just
`9 for the record, the deposition is being taken by
`10 defendants.
`11 MR. NARDINELLI: Jeff Nardinelli, Quinn
`12 Emanuel, on behalf of Blackberry and the witness.
`13 THE VIDEOGRAPHER: Will the court reporter
`14 please swear in the witness.
`15
`16 PATRICK MCDANIEL, PH.D.,
`17 having been first duly sworn,
`18 was examined and testified as follows:
`19
`20 EXAMINATION
`21 BY MR. PETERMAN:
`22 Q. Good morning, Dr. McDaniel.
`
`Page 5
`2 (Pages 2 - 5)
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`2 3
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` Representing Snap
`4 PAUL HASTINGS LLP
`5 BY: CHAD J. PETERMAN, ESQ.
` 200 Park Avenue
`6 New York, New York 10166
`7 (212) 318-6797
`8 chadpeterman@paulhastings.com
`9
`10
`11 Representing Blackberry
`12 QUINN EMANUEL URQUHART & SULLIVAN
` BY: JEFFREY W. NARDINELLI, ESQ.
`13 50 California Street
`14 22nd Floor
`15 San Francisco, California 94111
`16 (415) 875-6600
`17 jeffnardinelli@quinnemanuel.com
`18
`19
`20 ALSO PRESENT:
`21 ORSON BREITWAY, LEGAL VIDEOGRAPHER
`22
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`Page 2
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`1 I N D E X
`2 PAGE
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`BY MR. PETERMAN 5
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`34
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`567
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` E X H I B I T S
`8 NUMBER DESCRIPTION PAGE
`9 Exhibit 1 Notice of Deposition 6
`10
`11 Exhibit 2 Declaration of Patrick 8
`12 McDaniel, Ph.D. Regarding
`13 Claim Construction
`14
`15 Exhibit 3 U.S. Patent 8,326,327 10
`16
`17 Exhibit 4 U.S. Patent 8,825,084 11
`18
`19 Exhibit 5 Exhibit C of Defendants' 73
`20 Preliminary Proposed Claim
`21 Constructions
`22
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`1 A. Good morning.
`2 Q. Would you please state your name for the
`3 record.
`4 A. Patrick McDaniel.
`5 Q. And what is your home address?
`6 A. 1480 Chestnut Ridge Drive, State College,
`7 Pennsylvania, 16803.
`8 Q. Have you been deposed before?
`9 A. Yes.
`10 Q. Approximately how many times?
`11 A. I think this might be my 16th or 17th time.
`12 Q. Okay. So it's fair to say that you're
`13 familiar with the general procedures of a deposition?
`14 A. Yes, I am.
`15 Q. Are there any of the rules that you'd like me
`16 to further educate you on?
`17 A. No, I don't think so.
`18 Q. Is there any reason that you can't provide
`19 truthful testimony today?
`20 A. No.
`21 (Deposition Exhibit 1 was marked for
`22 identification.)
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`Page 6
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`1 "no" to the best of your ability.
`2 THE WITNESS: Can you be a little more
`3 specific?
`4 (Deposition Exhibit 2 was marked for
`5 identification.)
`6 BY MR. PETERMAN:
`7 Q. You submitted a declaration in connection
`8 with this case; correct?
`9 A. I have.
`10 Q. Are you planning on providing any additional
`11 opinions that are outside of the declaration in this
`12 litigation?
`13 A. I believe so, yes.
`14 Q. And what are those opinions that you're
`15 planning to provide in litigation?
`16 A. I suspect that I provide some opinions
`17 relating to validity and infringement, perhaps, down
`18 the road.
`19 Q. And have you formed opinions relating to
`20 validity and infringement of the patents?
`21 A. Not yet.
`22 Q. Do you use the Snapchat application?
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`Page 8
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`1 BY MR. PETERMAN:
`2 Q. I've premarked as Exhibit 1 from the court
`3 reporter the notice of your deposition. It's in front
`4 of you.
`5 A. I have it.
`6 Q. Do you understand that you're here testifying
`7 in connection with a patent litigation between
`8 Blackberry and Snap?
`9 A. Yes, I am.
`10 Q. In connection with the litigation, have you
`11 provided an expert report?
`12 A. I've provided a declaration.
`13 Q. Okay. And do you understand that today's
`14 deposition is as a result of that declaration?
`15 A. I do.
`16 Q. Okay. You can put Exhibit 1 aside.
`17 Are you planning on providing any additional
`18 opinions beyond what's in your declaration?
`19 MR. NARDINELLI: And I'll caution the witness
`20 not to reveal the substance of any communications with
`21 counsel.
`22 But you can answer that question "yes" or
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`Page 7
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`1 A. No.
`2 Q. Are you planning on attending any trial that
`3 occurs in this litigation?
`4 A. I suspect so.
`5 Q. Are you planning on attending the Markman
`6 hearing in this litigation?
`7 A. I don't know.
`8 Q. And what did you do to prepare for this
`9 deposition today?
`10 A. Beyond preparing the declaration?
`11 Q. Correct.
`12 A. I read the declaration and the patents.
`13 MR. NARDINELLI: Let me just stop you. Don't
`14 go into any kind of specific detail of what we did
`15 during our prep. Just stick to, you know, who you met
`16 with and when.
`17 Go ahead.
`18 THE WITNESS: I also reviewed the patent
`19 histories and some of the extrinsic evidence that's
`20 cited, and I met with counsel.
`21 BY MR. PETERMAN:
`22 Q. Did you review Snap's proposed claim
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`1 constructions?
`2 A. I saw them.
`3 Q. And did you consider the construction that
`4 Snap has proposed?
`5 A. No, I haven't formed an opinion.
`6 Q. Other than your lawyers, did you speak with
`7 anyone to prepare for today's deposition?
`8 A. No.
`9 Q. In front of you already are two documents,
`10 two patents that have been premarked. Exhibit 2 is
`11 the U.S. Patent 8,326,327.
`12 And Exhibit 3 is the U.S. Patent 8,825,084.
`13 Do you see them?
`14 A. I think --
`15 Q. I'm sorry. Scratch that entire read-in.
`16 In front of you I have Exhibit 2, which is
`17 your declaration; correct?
`18 A. Yes. Correct.
`19 Q. Is that declaration the declaration that you
`20 provided in connection with this litigation?
`21 (Deposition Exhibit 3 was marked for
`22 identification.)
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`Page 10
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`1 (The witness reviewed Exhibit 2.)
`2 THE WITNESS: I've been battling a stomach
`3 flu for a couple of days. So if I have to stop and
`4 I'm choking up here, I'm not trying to stall. I'm
`5 just feeling pretty rough.
`6 BY MR. PETERMAN:
`7 Q. Sure. I do appreciate you coming out and
`8 hope you feel better, but just let me know if --
`9 A. Yeah, I know. I don't think it's going to be
`10 an issue.
`11 It appears to be.
`12 Q. And in Exhibit 2 is it fair to say that it
`13 mainly concerns two patents?
`14 A. It concerns claim construction issues related
`15 to two patents.
`16 Q. And the first patent is U.S. Patent
`17 8,326,327, which is in front of you premarked as
`18 Exhibit 3.
`19 A. It is.
`20 (Deposition Exhibit 4 was marked for
`21 identification.)
`22 BY MR. PETERMAN:
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`Page 11
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`1 Q. And the second patent is premarked as
`2 Exhibit 4. It's U.S. Patent 8,825,084; correct?
`3 A. That's correct.
`4 Q. In this deposition if I say, "the '327
`5 patent," will you understand that to be U.S. Patent
`6 No. 8,326,327?
`7 A. I will. I think I have an extra copy of the
`8 '084.
`9 Q. If I say, "the '084 patent," will you
`10 understand that I'm referring to Exhibit 4, U.S.
`11 Patent 8,825,084?
`12 A. Yes, sir.
`13 Q. And if I call the patents "the Action Spot
`14 patents," will you understand that I'm referring to
`15 both Exhibits 3 and 4?
`16 A. Yes.
`17 Q. Were you asked to provide opinions on all
`18 terms of the Action Spot patents or only certain
`19 terms?
`20 MR. NARDINELLI: Well, let me -- sorry.
`21 Can you read back the question.
`22 (Record read.)
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`Page 12
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`1 MR. NARDINELLI: I'll object based on
`2 privilege and instruct you not to answer that question
`3 the way it's phrased.
`4 Go ahead.
`5 THE WITNESS: Can you try again?
`6 BY MR. PETERMAN:
`7 Q. Were you asked to provide claim construction
`8 opinions on all terms of the Action Spot patent, or
`9 were only certain terms identified to you?
`10 MR. NARDINELLI: Same objection and same
`11 instruction.
`12 I'll instruct you not to answer the question
`13 on privilege grounds.
`14 BY MR. PETERMAN:
`15 Q. Are there any claim construction opinions
`16 that you intend to provide that are not included
`17 within your expert declaration?
`18 A. I don't believe so.
`19 Q. Have you reviewed any other patents asserted
`20 by Blackberry in this litigation?
`21 MR. NARDINELLI: Objection. Privilege.
`22 I'll instruct you not to answer that
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`1 question.
`2 BY MR. PETERMAN:
`3 Q. Were your opinions with respect to claim
`4 construction that you expressed in this declaration
`5 informed by any other patents that Blackberry has
`6 asserted in this litigation?
`7 A. My opinions expressed in this declaration
`8 were formed by my analysis of the claims and the
`9 specifications, the patent histories, and the
`10 extrinsic evidence, as well as my experience.
`11 Q. So let's turn to your declaration, Exhibit 2.
`12 A. Sure.
`13 Q. Specifically, I'll direct you to Page 6.
`14 A. I'm there.
`15 Q. Page 6 contains a section regarding the
`16 "Level of Ordinary Skill in the Art"; correct?
`17 A. That's correct.
`18 Q. And in Paragraph 27 you state your opinion
`19 that "a person of ordinary skill in the art relevant
`20 to the Action Spots Patents at the time of the
`21 invention would have had a bachelor of science degree
`22 in Computer Engineering/Computer Science or similar
`Page 14
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`1 A. No.
`2 Q. You go on to state in Paragraph 27 of your
`3 declaration that your "opinion of a person of ordinary
`4 skill in the art remains the same regardless of
`5 whether the time of the invention is found to be
`6 August 2010, or sometime later up until and including
`7 the October 9, 2012 patent date of the '084 patent";
`8 correct?
`9 A. That's correct.
`10 Q. What's the significance of the August 2010
`11 date?
`12 A. That's the date at which the '327 patent was
`13 filed.
`14 Q. And what's the significance of the October 9,
`15 2012 date?
`16 A. That's the date of when the '084 patent was
`17 filed.
`18 Q. Is it your opinion that the claim terms that
`19 are common between the '327 and the '084 patent should
`20 be construed the exact, same way?
`21 MR. NARDINELLI: Object to form.
`22 THE WITNESS: For the terms that I reviewed,
`Page 16
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`1 subject matter, or at least approximately two years of
`2 work or research experience in the fields of computer
`3 software, networking, and/or user experience design,
`4 or an equivalent subject matter"; correct?
`5 A. Correct.
`6 Q. How did you arrive at the level of skill in
`7 the art you expressed there in Paragraph 27 of your
`8 declaration?
`9 (The witness reviewed Exhibit 2.)
`10 THE WITNESS: This was based on my
`11 experience, as well as my understanding of what it
`12 means to be skilled in the art.
`13 BY MR. PETERMAN:
`14 Q. And what is your understanding of what it
`15 means to be skilled in the art?
`16 A. Somebody that's able to read, interpret, and
`17 practice a patent as written.
`18 Q. And in August of 2010, would you have been
`19 considered a person who was skilled in the art?
`20 A. Yes.
`21 Q. Did you consider the claims under any other
`22 level of skill in the art?
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`Page 15
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`1 yes.
`2 BY MR. PETERMAN:
`3 Q. Are there any differences between the
`4 specification for the '327 patent and the '084 patent?
`5 A. The only difference, I believe, is a
`6 notification of the continuation on the '084. I think
`7 the specifications are exactly the same.
`8 Q. And for your claim construction analysis, did
`9 you rely on one specification more than the other
`10 specification?
`11 A. No.
`12 Q. Let's look at the background section of your
`13 report, which begins on Page 6.
`14 A. I'm there.
`15 Q. What do you believe is the invention that's
`16 claimed by the Action Spot patents?
`17 MR. NARDINELLI: Object to form.
`18 THE WITNESS: So I can speak broadly, as I
`19 have done here in this section, about the invention.
`20 My declaration is focused on reviewing specific terms.
`21 So I can present this as my broad understanding of the
`22 invention at large. I'm not sure how to answer that
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`1 question given the analysis that I've provided.
`2 BY MR. PETERMAN:
`3 Q. Okay. So, broadly speaking, what is your
`4 understanding of the Action Spot patents?
`5 A. Well, it's laid out here on Pages 6 through
`6 9, I believe it is.
`7 Q. So in Paragraph 29 of your report, the last
`8 sentence you say, "As the shared title indicates, both
`9 patents relate to determining action spot locations
`10 relative to the location of a mobile device"; correct?
`11 A. That's correct.
`12 Q. What does it mean, "relative to the location
`13 of a mobile device"?
`14 A. The action spot is relative to the location
`15 of the mobile devices. It's spatially related in some
`16 way.
`17 Q. In order to determine the relative location
`18 of the action spot, do you need to know the location
`19 of the mobile device?
`20 MR. NARDINELLI: Object to form, and Chad, I
`21 apologize. I don't mean to interrupt. Are you asking
`22 a question with respect to any of Professor McDaniel's
`Page 18
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`1 proposed claim constructions, or are you asking a
`2 different question?
`3 MR. PETERMAN: I'm asking him what he means
`4 by this sentence where he talked about locations
`5 relative to the location of a mobile device.
`6 MR. NARDINELLI: My understanding is that
`7 this deposition is limited to Professor McDaniel's
`8 claim construction opinions. So maybe we can work
`9 this out. I don't want to have to put an objection on
`10 the record every time I think you're asking a question
`11 that goes beyond the scope of this deposition, i.e.,
`12 Professor McDaniel's claim construction opinions.
`13 Are we just comfortable giving a running
`14 objection to scope, or would you like me to interject
`15 each time?
`16 MR. PETERMAN: You can make a running
`17 objection to scope. I disagree that it goes beyond
`18 the scope. It's his specific sentence in his expert
`19 declaration that I'm asking about.
`20 MR. NARDINELLI: Okay. But so to be clear, I
`21 won't have to interpose it every time, but we do have
`22 a running objection to the extent that your questions
`Page 19
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`1 go beyond the permissible scope of this deposition
`2 today.
`3 MR. PETERMAN: Noted.
`4 MR. NARDINELLI: Great.
`5 Go ahead.
`6 THE WITNESS: Can you ask the question again.
`7 I kind of got lost.
`8 BY MR. PETERMAN:
`9 Q. My question goes back to your Paragraph 29
`10 where you state that "both patents relate to
`11 determining action spot locations relative to the
`12 location of a mobile device." Is it your opinion that
`13 the location of the mobile device needs to be known
`14 before the action spots can be determined?
`15 MR. NARDINELLI: Object to form. Ambiguous.
`16 THE WITNESS: I feel like you're trying to
`17 ask me -- so this section was provided to provide some
`18 broad background and not specifically stating anything
`19 about my claim construction opinions other than just
`20 sort of background. If there's a specific term you'd
`21 like to point to and discuss what that claim term
`22 means as part of my opinions, I'm happy to do it.
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`Page 20
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`1 BY MR. PETERMAN:
`2 Q. I would like to focus on the sentence,
`3 though. You say, "both patents relate to determining
`4 action spot locations relative to the location of a
`5 mobile device." Did I read that correctly?
`6 A. Yes.
`7 Q. Okay. What information does one need in
`8 order to know what direction is relative to a mobile
`9 device?
`10 MR. NARDINELLI: Object to form.
`11 THE WITNESS: I believe you're asking me a
`12 question about determining.
`13 BY MR. PETERMAN:
`14 Q. I actually asked you a question about
`15 relative. In order to know if one thing is relative
`16 to another, do you need to know the location of both
`17 of those things?
`18 A. Whether -- do you need to know where they are
`19 or do you need to know that they're relative?
`20 Q. Well, do you need to know where they are in
`21 order to determine that they're relative to each
`22 other?
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`1 MR. NARDINELLI: Object to form.
`2 THE WITNESS: Is there claim construction
`3 issues you're asking me here? I'm still getting lost
`4 here. So you're asking me to give an interpretation,
`5 which feels like we're talking about claim
`6 construction and telling me it's not about claim
`7 construction.
`8 BY MR. PETERMAN:
`9 Q. I'm asking you with respect to the last
`10 sentence in Paragraph 29 when you state, "both patents
`11 relate to determining action spot locations relative
`12 to the location of a mobile device," do you need to
`13 know the location of the mobile device to determine
`14 what's relative to that?
`15 A. They are naturally relative. There isn't any
`16 need necessarily just focusing on relevant and absent
`17 any claim construction issues. For something to be
`18 relative, they're spatially relative. There's no
`19 knowledge needed for them to be relative.
`20 Q. So you can know that something is relative
`21 without knowing the location of any of the devices
`22 that you're comparing?
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`Page 22
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`1 MR. NARDINELLI: Object to form.
`2 THE WITNESS: You know, absent any claim
`3 construction issue, the term "relative," things are
`4 relative. They're just -- they are relative.
`5 BY MR. PETERMAN:
`6 Q. Okay. Paragraph 30 you state that "The
`7 Action Spot patents share identical specifications
`8 (save for)," and then you give a brief explanation as
`9 to what's different. Do you see that?
`10 A. Yes.
`11 Q. Then you conclude the paragraph saying,
`12 "There's no reason, much less a compelling reason, to
`13 interpret any claim term differently in the '327
`14 Patent versus the '084 Patent"; correct?
`15 A. Yes.
`16 Q. And that's still your opinion today?
`17 A. That is my opinion today.
`18 Q. Going to Paragraph 31, you say that "Prior to
`19 the Action Spot Patents, users could use an electronic
`20 device, such as a mobile phone, to locate nearby
`21 events and happenings"; correct?
`22 A. Yes.
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`Page 23
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`1 Q. And when you use the term, "prior to the
`2 Action Spot patents," what date are you using?
`3 A. 2010.
`4 Q. That's the August 2010 date?
`5 A. Yes.
`6 Q. By August of 2010 it's fair to say that
`7 mobile phones were known; correct?
`8 A. Yes.
`9 REPORTER MARTIN: Did you say "were" or
`10 "weren't"?
`11 MR. PETERMAN: Were.
`12 Q. And you state that "users could use
`13 electronic device, such as a mobile phone, to locate
`14 nearby events and happenings." How could a user use
`15 an electronic device in order to perform those
`16 activities?
`17 A. Well, I think the patent actually, in its
`18 background, talks about several ways.
`19 Q. Just so I'm on the same page with you, which
`20 patent did you choose to pick up?
`21 A. The '327. Oh, because you needed citations,
`22 right.
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`Page 24
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`1 So it starts sort of at the top of Column 3.
`2 You would have to search -- I'm sorry. I'll just read
`3 it. "For example" -- I'm sorry.
`4 "In order to find information relating to
`5 events and happenings currently occurring proximate
`6 to" the device, a "mobile device's present location,
`7 the user for a mobile device will have to search an
`8 external resource, such as an electronic events
`9 calendar, internet sites, internet calendars of
`10 individual business or event holders, and compare the
`11 locations of found events and happenings to the mobile
`12 current location."
`13 Q. Are you aware of any other ways that a user
`14 of mobile phones, before August 2010, could have
`15 located nearby events and happenings using their
`16 phone?
`17 A. There may have been apps to help people find
`18 application and find events. There certainly were, in
`19 the early stages of things like ticket selling,
`20 applications which they could use.
`21 Q. Outside of the mobile phone context, were
`22 newspapers used to list the events and happenings?
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`1 A. Absolutely.
`2 Q. And were magazines used to list the events
`3 and happenings?
`4 A. Yes.
`5 Q. Were advertisements used to list the events
`6 and happenings?
`7 A. Yes.
`8 Q. Were you aware of city maps prior to August
`9 2010 that provided points of interest?
`10 A. No.
`11 Q. Have you heard of --
`12 A. I'm sorry. Ask the question. I want to make
`13 sure I answer the question right.
`14 Q. Prior to August 2010, are you aware of city
`15 maps that provided points of interest?
`16 A. Okay. I think I heard. Are you asking me
`17 prior to 2010 did I know of them?
`18 Q. Yeah. Well, are you aware of the existence
`19 of maps prior to August 2010 that showed points of
`20 interest?
`21 A. Yes.
`22 Q. By August 2010 could ordinary mobile phones
`Page 26
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`1 take photos?
`2 A. I believe so, yes.
`3 Q. By August 2010 could ordinary mobile phones
`4 post photos on social networking sites?
`5 A. Yes.
`6 Q. By August 2010 could ordinary mobile phones
`7 take videos?
`8 A. I believe in the early stages of video, yeah.
`9 Q. By August 2010 could ordinary mobile phones
`10 post videos on social networking sites?
`11 A. I believe so. It would have been rather
`12 difficult.
`13 Q. Okay. And why do you say it would have been
`14 rather difficult?
`15 A. Just the bandwidth requirements. The
`16 networks were a lot slower then.
`17 Q. By August 2010 could ordinary mobile phones
`18 send messages?
`19 A. Yes.
`20 Q. By August 2010 could ordinary mobile phones
`21 identify their location?
`22 A. Yes.
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`1 Q. By August 2010 could ordinary mobile phones
`2 display maps?
`3 A. Yes.
`4 Q. By August 2010 could ordinary mobile phones
`5 display their location on a map?
`6 A. Yes.
`7 Q. By August 2010 could ordinary mobile phones
`8 display directions to locations relative to the mobile
`9 phone?
`10 A. Yes.
`11 Q. In Paragraph 32 of your report you state that
`12 "The Action Spots Patents provided a new solution"?
`13 A. Yes.
`14 Q. I believe this refers to the statements that
`15 you made in Paragraph 31 about the prior solution?
`16 A. Yes.
`17 Q. You state that the new solution in
`18 Paragraph 32, "Namely, the Action Spots Patents,
`19 determine locations at which one or more mobile device
`20 are engaged in" a "certain activity, such as taking
`21 pictures or videos, posting pictures or video or
`22 social networking sites, or sending or posting
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`1 messages"; correct?
`2 A. Yes.
`3 MR. NARDINELLI: I think you might have said,
`4 "in a certain activity" whereas the declaration says,
`5 "in certain activity."
`6 MR. PETERMAN: I'm sorry. That was
`7 unintentional. I'll read it again.
`8 Q. In Paragraph 32 you state, "Namely, the
`9 Action Spot Patents determine locations at which one
`10 or more mobile devices are engaged in certain
`11 activity, such as taking pictures or videos, posting
`12 pictures or videos to social networking sites, or
`13 sending or posting messages"; right?
`14 A. Yes, that's right.
`15 Q. Is it your opinion that the Action Spot
`16 patents represented the first time that the system has
`17 determined locations at which one or more mobile
`18 devices are engaged in certain activity?
`19 MR. NARDINELLI: Object to form.
`20 THE WITNESS: So, again, this is background
`21 section, and it's painting broad strokes. I haven't
`22 formed a complete opinion on the specific novelty of
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`1 the patent. I do believe that, you know, after
`2 reviewing the patent histories, that the invention
`3 appears to be novel over prior systems. So the answer
`4 is in toto, I think it is novel. If you want to start
`5 parsing out specific parts of the patent to see what
`6 is new and what isn't, I haven't done that analysis
`7 yet.
`8 BY MR. PETERMAN:
`9 Q. So what do you believe is a novelty regarding
`10 the Action Spot patents based on your review that you
`11 said you've done?
`12 A. Well, again, I haven't been asked to inform,
`13 create an opinion on that specific question. I've
`14 been asked to review the patent -- I'm sorry. The
`15 claim construct issues at hand.
`16 Q. On your previous answer you said in toto you
`17 think the Action Spot patents are novel; correct?
`18 A. Yes, informally.
`19 Q. Okay. What's the basis for that informal
`20 opinion?
`21 A. My understanding of the field and my analysis
`22 of the materials.
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`1 MR. NARDINELLI: Sorry. Let me -- I might
`2 have missed it on the last question. If so, I
`3 apologize. Let me object on privilege grounds and
`4 caution the witness not to disclose any of the work
`5 that you have done at the behest of counsel.
`6 THE WITNESS: I've looked at the pieces of
`7 prior art that are -- well, many of the pieces of the
`8 prior art, they're related to the prosecution history,
`9 but just, I have not done a complete analysis. I've
`10 looked at what the patent history is and what the
`11 patent office said about it.
`12 BY MR. PETERMAN:
`13 Q. Did the review of the prior art inform any of
`14 your claim construction opinions?
`15 A. No.
`16 Q. Did the Action Spot patents disclose any new
`17 hardware that wasn't available before August 2010?
`18 MR. NARDINELLI: Object to form.
`19 THE WITNESS: I haven't done that analysis.
`20 BY MR. PETERMAN:
`21 Q. You go on in Paragraph 32 to state, "The
`22 Action Spots Patents then present a visual indication
`Page 32
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`1 Q. Is there any particular aspect of the Action
`2 Spot patent claims that you believe was not present in
`3 the field before August 2010?
`4 A. Again, I think you're asking me to do an
`5 analysis on the fly that I haven't done yet, but
`6 certainly in toto I haven't seen anything that would
`7 suggest that all of the pieces of the Action Spot
`8 patent were in previous pieces of prior art.
`9 Q. Now, did you review the prior art that was
`10 cited in connection with the prosecution history of
`11 the patent?
`12 MR. NARDINELLI: I'll just throw in a
`13 reminder that we have a running objection on scope to
`14 the extent it exceeds the scope of a claim
`15 construction deposition.
`16 But go ahead and answer.
`17 THE WITNESS: I looked at the prior art, and
`18 I saw what the patent office mentioned about the prior
`19 art.
`20 BY MR. PETERMAN:
`21 Q. Is your answer that you reviewed all the
`22 prior art references that are cited in the patent?
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`1 of these locations, known as 'action spots,' and may
`2 visually depict the amount of activity occurring at
`3 the action spot(s)." Do you see that?
`4 A. I do.
`5 Q. When you use the term "visual indication,"
`6 what do you mean?
`7 A. A visual indication is indicating on the
`8 interface where the action spot is.
`9 Q. So the visual indication is something that
`10 tells you the location of the action spot?
`11 MR. NARDINELLI: Objection. Misstates prior
`12 testimony.
`13 THE WITNESS: So can you ask the question
`14 again? I'm sorry.
`15 BY MR. PETERMAN:
`16 Q. Does the visual indication tell you the
`17 location of the action spot?
`18 (The witness reviewed the document.)
`19 THE WITNESS: I'm sorry. Can you ask the
`20 question one more time.
`21 BY MR. PETERMAN:
`22 Q. Does the visual indication that you reference
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`1 here in Paragraph 32 of your report tell you the
`2 location of the action spot?
`3 A. It indicates some information about where the
`4 action spot may be.
`5 Q. Paragraph 33 of your report, you include a
`6 Snapshot of Figure 3 from the patent; correct?
`7 A. Yes, on Page 9.
`8 Q. Yes.
`9 (The witness reviewed Exhibit 2.)
`10 BY MR. PETERMAN:
`11 Q. Figure 3 shows two action spots; correct?
`12 A. Yes, I believe so.
`13 Q. And those two action spots are Labeled 304
`14 and 306?
`15 A. Yes, that's correct.
`16 Q. Are there additional action spots in Figure 3
`17 that are not depicted?
`18 (The witness further reviewed Exhibit 2.)
`19 THE WITNESS: I don't believe so.
`20 BY MR. PETERMAN:
`21 Q. How much activity is required under the
`22 patent for an Action Spot to be displayed?
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`1 A. Is there a claim construction issue here that
`2 I'm --
`3 Q. Well, you do opine at various portions of
`4 your declaration regarding activity level.
`5 A. I do.
`6 Q. I'm just trying to understand is there a
`7 threshold activity level that's required for an action
`8 spot to be displayed?
`9 (The witness further reviewed Exhibit 2.)
`10 THE WITNESS: It would depend on the
`11 application.
`12 BY MR. PETERMAN:
`13 Q. How would i