Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`---oOo---
`
` GOOGLE LLC,
`Petitioner,
`
`Case IPR2019-01035
`Patent No. 9,769,477
` vs.
` REALTIME ADAPTIVE STREAMING LLC,
`Patent owner.
` ___________________________/
`
`DEPOSITION OF JEFFREY RODRIGUEZ, PHD
`February 18, 2020
`San Diego, California
`
`Reported by:
`NICOLE HATLER
`CSR No. 13730
`Job no: 27002
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 1
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`---oOo---
`
` GOOGLE LLC,
`Petitioner,
`
`Case IPR2019-01035
`Patent No. 9,769,477
` vs.
` REALTIME ADAPTIVE STREAMING LLC,
`Patent owner.
` ___________________________/
`
`DEPOSITION OF JEFFREY RODRIGUEZ, PHD
`February 18, 2020
`San Diego, California
`
`Reported by:
`NICOLE HATLER
`CSR No. 13730
`Job no: 27002
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 1
`
`
`
`DEPOSITION OF JEFFREY RODRIGUEZ, PHD
`
`Page 2
`
`BE IT REMEMBERED, that pursuant to Notice, and on
` the 18th day of February 2020, commencing at the hour of
` 9:06 a.m., in the offices of Paul Hastings, 4747
` Executive Drive, Suite 1200, San Diego, California
` 92121, before me, NICOLE HATLER, a Certified Shorthand
` Reporter, State of California, personally appeared
` JEFFREY RODRIGUEZ, PHD, produced as a witness in said
` action, and being by me first duly sworn, was thereupon
` examined as a witness in said cause.
`---oOo---
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 2
`
`
`
`Page 3
`
` APPEARANCES
` For the Petitioner:
`PHILLIP W. CITROEN, ESQ.
`Paul Hastings LLP
`875 15th Street, N.W.
`Washington, DC 20005
`(202) 551-1991
`PhillipCitroen@PaulHastings.com
` For the Patent Owner:
`JAMES S. TSUEI, ESQ.
`Russ August & Kabat LLP
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`(310) 826-7474
`JTsuei@raklaw.com
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 3
`
`
`
`I N D E X
`
`Page 4
`
` EXAMINATION BY MR. TSUEI
`
`E X H I B I T S
`
`PAGE
`5
`
`PAGE
`
` PATENT OWNER'S
`5
` Exhibit 1 Dr. Rodriguez' expert report
` Exhibit 2 US Patent No. US 9,769,477 B2 5
` Exhibit 3 US Patent No. US 7,143,432 B1 5
` Exhibit 4 Provisional Application
`5
`Docket No. 19838-000300US
`Google Exhibit 1007
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`TransPerfect Legal Solutions
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`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 4
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`
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`Page 5
` (Exhibits 1 through 4 were marked for identification.)
`JEFFREY RODRIGUEZ, PHD,
`sworn as a witness
`testified as follows:
`THE REPORTER: Good morning. My name is
` Nicole Hatler, California Certified Shorthand Reporter
` No. 13730. This deposition will be stenographically
` reported pursuant to CCP 2025.
` EXAMINATION BY MR. TSUEI:
`Q. All right. Good morning, Dr. Rodriguez. Is
` there a title or a preference? Do you have a preference
` for how you're called today?
`A. No.
`Q. Is Dr. Rodriguez okay?
`A. That's great.
`Q. Okay. So, Dr. Rodriguez, you understand you're
` under oath today, right?
`A. Yes.
`Q. And the answers you provide in response to
` questions today will be treated as if they are given
` under oath.
`Do you understand that?
`A. Yes.
`Q. And you also understand that the answers you
` give, as they're under oath, will be treated as if
`
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 5
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` they're essentially testimony as if it was given in a
` court of law; you know that, right?
`A. Yes.
`Q. Have you ever -- have you ever testified under
` oath before?
`A. Yes, I have.
`Q. And can you tell me when you -- tell me about
` the times you have testified before under oath.
`A. I've testified at depositions, and I've also
` testified at trial.
`Q. So let's break those down. You said you've
` testified at depositions before.
`Approximately how many depositions have you
` given testimony at?
`A. I believe it's more than 10. Somewhere between
` 10 and 15. It's in my CV.
`Q. And approximately, how long have you been
` working as an -- as an expert witness in
` litigation-related matters?
`A. Well, I've been doing this type of work on a
` part-time basis for -- well, let's look at my CV to be
` precise. Since 2005.
`Q. So you've been, as you said, working as a
` consultant -- expert consultant for parties in
` litigation since about 2005; is that right?
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 6
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`Page 7
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`A. That's correct.
`Q. And you say you've given testimony in over 10
` depositions; is that correct?
`A. I believe I've been deposed 10 times, as that's
` what I have indicated in my CV. That's as of
` March 2019. I may have been -- I probably was deposed
` once or twice after that. Maybe once after that.
`Q. The deposition you mentioned in which you may
` have given testimony, that once or twice after
` March 2019, can you tell me what cases those depositions
` or that deposition was for.
`A. I believe I was deposed last spring in regards
` to an ITC investigation, and that would have been
` Broadcom versus Toyota, et al.
`Q. When you say "ITC," you mean the International
` Trade Commission; is that right?
`A. That's correct.
`Q. And this proceeding before the ITC between
` Broadcom and Toyota, was that a patent infringement
` investigation?
`A. It did involve patents. It was an investigation
` regarding the import of products that had been accused
` of infringing a patent.
`Q. And without revealing any attorney-client
` privileged information, can you tell me what the subject
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 7
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` matter of your testimony was in this ITC investigation
` between Broadcom and Toyota.
` A. I testified as to whether or not the accused
` products actually did infringe the patent.
` Q. So would it be fair to say that the subject
` matter of your testimony in this ITC investigation
` between Broadcom and Toyota was non-infringement of the
` products being investigated; is that right?
` A. No.
` Q. Then how would you characterize the subject
` matter of your testimony in this ITC investigation,
` then?
` A. I was an expert consultant on behalf of
` Broadcom, and I testified that the devices being
` imported by Toyota and other parties actually were using
` technology that had been patented by Broadcom.
` Q. So, Dr. Rodriguez, thank you for clarification.
` So it sounds like your role in this ITC investigation,
` then, was to provide expert testimony to the effect that
` the accused products did infringe the -- the patents
` being asserted in that investigation; is that right?
` A. Yes.
` Q. Okay. And you say that this deposition -- or
` rather this testimony that you gave in regards to this
` investigation occurred in the spring of 2019; is that
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 8
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`Page 9
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` right?
`A. I -- the trial was, I believe, at the end of May
` or beginning of June. So I would have been deposed
` prior to that. I don't recall specifically. It could
` have been March, April, May.
`Q. And it sounds like you gave expert testimony at
` the trial for this ITC proceeding; is that right?
`A. Yes, I did.
`Q. And you say the trial occurred in either the end
` of May or the beginning of June, right?
`A. That's my recollection.
`Q. Okay. Have you ever given testimony in a trial
` in a US District Court case involving patent
` infringement?
`A. Yes.
`Q. And just, can you give me one or two examples,
` if you can, of instances in which you have given
` testimony in a district court action involving patent
` infringement?
`A. In 2013, I testified at trial in the case
` NetAirus, N-E-T-A-I-R-U-S, versus Apple.
`Q. Now, Dr. Rodriguez, can I ask you, you're
` currently engaged by Google LLC as a technical expert,
` providing consulting in connection with several inter
` partes re: petitions that Google has filed with the
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 9
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`Page 10
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` USPTO; is that right?
`A. I'm working as a consulting expert for Google
` with regard to inter -- an inter partes review, that's
` correct.
`Q. One of the several inter partes review
` proceedings in which you have been engaged by Google is
` the -- the IPR proceeding we're here to talk about
` today, which is the IPR Number 2019-01035; is that
` correct?
`A. That's my understanding.
`Q. And approximately how long have you been engaged
` by Google to provide expert consulting in connection
` with IPR-related proceedings?
`MR. CITROEN: Objection. Form.
`THE WITNESS: I don't recall exactly when I
` started working with Google. I -- it was probably last
` year.
` BY MR. TSUEI:
`Q. Before you started working with Google last
` year, had you ever provided expert consulting services
` for Google in connection with anything else?
`MR. CITROEN: Objection. Form.
`THE WITNESS: Are you referring to expert
` consulting work for patent litigation?
` //
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 10
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` BY MR. TSUEI:
`Q. Sure. I'll -- I'll rephrase the question,
` Dr. Rodriguez.
`Before your engagement with Google in connection
` with inter partes review proceedings beginning last
` year, had you provided Google with any expert consulting
` services related to patent litigation in other contexts
` or other cases?
`MR. CITROEN: Objection. Form.
`THE WITNESS: I don't believe so.
` BY MR. TSUEI:
`Q. So thanks for marching through some housekeeping
` issues with me. So as you might expect, as you've been
` deposed before, I'll be asking you a number of questions
` today, and some of them will be technical in nature.
`And if, at any point, you don't understand the
` question or if anything I'm saying is unclear, feel free
` to -- to let me know. Is that okay?
`A. Okay.
`Q. But if you do provide an answer and you don't
` otherwise say that, you know, what I'm asking you is
` unclear, I'll assume that my question is -- is clear.
` Is that fair?
`A. Okay.
`Q. And if at any point today you need to take a
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 11
`
`
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`Page 12
` break for any particular reason, that's fine. Just let
` your counsel know. But my only request of you, with
` respect to breaks, is that we don't take a break in the
` middle of a question. Is that okay?
`A. Sure.
`Q. And finally, this is just for form. Is there
` anything else -- is there anything that would, in your
` opinion, prevent you from testifying completely or
` truthfully today in the deposition?
`A. No.
`Q. So I'm going to hand you what's been premarked
` as Exhibits 1, 2, 3, and 4. And you'll see in a moment,
` but respectively, they are just your expert declaration,
` the '477 patent, the Brooks prior art reference, and the
` Brooks provisional application, which you reference in
` your report. They've been premarked, and I'm handing
` them to you now.
`MR. CITROEN: Counsel, just for the record
` really quickly, are these the exhibits filed in the IPR
` proceeding?
`MR. TSUEI: That's an excellent question. Thank
` you for asking. Everything but the '477 patent copy,
` which is premarked as Exhibit 2, has been filed and is
` stamped with the appropriate footer for PTAB file.
` //
`
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`TransPerfect Legal Solutions
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`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 12
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` BY MR. TSUEI:
`Q. And, Dr. Rodriguez, of course I'll give you a
` moment to go through the exhibits and confirm that they
` are what they appear to be.
`MR. CITROEN: Counsel, just so I -- I apologize
` to interrupt, but the exhibit that's not marked with an
` IPR exhibit number, is it -- are you representing that
` is the same as Exhibit 1001?
`MR. TSUEI: Yes, Counsel. The item premarked as
` Exhibit 2 is, in fact, a true and correct copy of the
` published '477 patent published by the USPTO.
` BY MR. TSUEI:
`Q. Dr. Rodriguez, have you had a chance to look
` through Exhibits 1 through 4?
`A. Yes.
`Q. And are they, to your knowledge, accurate copies
` of, respectively, your expert declaration, the '477
` patent, the Brooks prior art reference, and the Brooks
` provisional application?
`A. I flipped through them quickly. I didn't notice
` any differences, so I will accept your representation
` that these are the accurate copies.
`Q. Dr. Rodriguez, you signed and executed your
` expert declaration, which is premarked as Exhibit 1, in
` May 2019; is that right?
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 13
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`A. Yes.
`Q. Between May 2019 and the present day, have any
` errors in your declaration, typos, come to light that
` you would like to correct today on the record?
`A. Yes.
`Q. What sorts of corrections would you like to make
` to your declaration on the record today?
`A. In paragraph 6, insert a comma after "ultrasound
` video."
`Q. Just for the record, you're saying that there
` should be a comma in the sentence beginning with the
` words "past projects," and the comma should be inserted
` after the words "tracking using ultrasound video"?
`A. Correct.
`Q. And that comma would be followed by the words
` "segmentation of the right ventricle"; is that right?
`A. Correct.
`Q. Are there any other corrections you'd like to
` make to your expert declaration today?
`A. In paragraph 35.
`Q. Okay. What error would you like to correct on
` the record in paragraph 35 of your declaration?
`A. This is another clerical error. The last
` sentence should be replaced by the sentence in
` paragraph 15. During the drafting, that sentence in
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 14
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` paragraph 35 apparently didn't get updated as the
` paragraph 15 implies.
`Q. Thank you, Doctor. Again, so just for the
` record, last sentence in paragraph 35 of your expert
` declaration should be corrected to -- or rather, should
` be excised and replaced with the sentence in
` paragraph 15 of your declaration; is that right?
`A. That's right.
`Q. The material which you'd like to excise from
` paragraph 35 mentions something called "Pauls."
`What is Pauls, if you know?
`A. Pauls is one of the references that I reviewed.
`P-A-U-L-S.
`Q. And just for the record, the reference to Pauls
` here is attached to your expert declaration as
` Exhibit 1005; is that correct?
`A. That's correct.
`Q. Are you offering any opinion of invalidity about
` any claim of the '477 patent based on any disclosure in
` the Pauls prior art reference, Exhibit 1005?
`MR. CITROEN: Objection. Form.
`THE WITNESS: No. I'm not offering any opinions
` about -- excuse me. Can you repeat the question?
` BY MR. TSUEI:
`Q. Sure. Just one moment. There's a technical
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 15
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`
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`Page 16
` issue with the realtime transcript, so I'll just re-ask
` the question.
`Dr. Rodriguez, are you offering any opinions
` today about invalidity of any claim of the '477 patent
` based on any disclosures in the Pauls reference, which
` is Exhibit 1005, to your declaration?
`A. No.
`Q. So, Dr. Rodriguez, you're aware that the
` petition, which is the -- the paper filed by Google with
` the US Patent Office, PTAB some might call it,
` identifies two grounds of invalidity of the '477 patent;
` do you -- is that correct?
`MR. CITROEN: Objection. Form.
`THE WITNESS: I don't know.
` BY MR. TSUEI:
`Q. Have you reviewed -- or rather, are you familiar
` with what a petition is in the context of an inter
` partes review?
`A. I have a -- what I think is a general
` understanding based on what I've learned from counsel.
`Q. Are you aware that Google, the party you're
` consulting for today, in connection with this inter
` partes review proceeding, has filed a petition with the
` Patent Trial and Appeal Board at the USPTO?
`A. That's my understanding.
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`TransPerfect Legal Solutions
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`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 16
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`Page 17
`Q. And your understanding is also that they filed a
` petition specifically in connection with the '477
` patent; is that right?
`A. That's my understanding.
`Q. Dr. Rodriguez, I'd like to back up for just a
` moment.
`
`It's fair to say, it sounds like this is
` correct, that you have reviewed documents to prepare for
` your testimony today, right?
`A. Yes.
`Q. And can you tell me what documents you've
` reviewed in connection with preparing for today's
` testimony.
`A. I've reviewed my declaration and the exhibits
` that are attached with my declaration.
`Q. Have you reviewed the petition that Google has
` filed in connection with this IPR proceeding about the
` '477 patent?
`A. No.
`Q. Have you ever reviewed any drafts of the
` petition that Google filed in connection with the IPR
` proceeding for the '477 patent?
`A. No. I was only asked to review the -- I -- I
` reviewed the materials that I've cited in my
` declaration, and, of course, I've worked on a number of
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 17
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` drafts of my declaration.
`Q. Dr. Rodriguez, are you familiar with what a
` grounds for unpatentability would be in the context of
` an inter partes review proceeding?
`MR. CITROEN: Objection. Form.
`THE WITNESS: I'm not a lawyer, so I don't know
` the legal meanings of some of those legal terms.
` BY MR. TSUEI:
`Q. Dr. Rodriguez, would it be accurate to say that
` the opinions you're offering in connection with the '477
` patent in today's proceeding include that certain claims
` of the '477 patent are invalid for anticipation, if that
` has any meaning for you?
`MR. CITROEN: Objection. Form.
`THE WITNESS: Again, you're using, I think,
` legal terms. I was not asked to form an opinion as to
` invalidity, specifically.
` BY MR. TSUEI:
`Q. Dr. Rodriguez, you said that you were not asked
` to form an opinion as to invalidity, specifically.
`Can you tell me what opinions you were asked to
` form, without revealing attorney-client privilege of
` course, in connection with today's inter partes review
` proceeding.
`MR. CITROEN: Objection. Form.
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 18
`
`
`
`Page 19
` THE WITNESS: I was asked to form an opinion as
` to whether one or more of the references that I reviewed
` disclosed all of the limitations recited in the
` challenged claims.
` BY MR. TSUEI:
` Q. So the sentence in paragraph 15 of your expert
` declaration, and I'll read it into the record, you say,
` As I discuss in detail below, it is my opinion that
` certain references disclose or suggest all the features
` recited in Claims 1, 3, 4, 7, 9, 16, 17, and 20 through
` 22 of the '477 patent.
` I read that correctly, right?
` A. I believe so.
` Q. And your testimony is that you were asked to
` offer an opinion regarding whether or not certain prior
` art references disclosed or suggested certain features
` in the challenged claims; is that right?
` A. That's correct.
` Q. And just to tie things up, Dr. Rodriguez, do you
` have an understanding of what the concept of
` anticipation is?
` MR. CITROEN: Objection. Form.
` THE WITNESS: Are you asking in the context of
` the legal proceeding, or just generally as the English
` word?
`
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 19
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` BY MR. TSUEI:
`Q. Dr. Rodriguez, I'll rephrase my question then.
`Do you have an understanding, sitting here
` today, of what the term "anticipation" means in the
` context of patent infringement?
`MR. CITROEN: Objection. Form.
`THE WITNESS: Counsel did not educate me on all
` of the nuances of the legal terminology. Instead, I was
` asked to simply focus on whether the -- these references
` that I reviewed disclosed or suggest all of the features
` in the challenged claims.
` BY MR. TSUEI:
`Q. Thank you, Dr. Rodriguez. I think I understand
` what you are saying. But just to be clear for the
` record, you were asked to review prior art to see
` whether they disclosed or suggested certain features in
` the challenged claims. And that's correct, right?
`A. Yes.
`Q. But sitting here today, you're not saying that
` you have an understanding of what the term
` "anticipation" means in the context of patent
` infringement, right?
`MR. CITROEN: Objection to form.
`THE WITNESS: Since I'm not a lawyer, I would
` not be able to give you a precise definition of the --
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 20
`
`
`
`Page 21
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` you know, the legal term as it's used in legal
` proceedings, sitting here today.
` BY MR. TSUEI:
` Q. What about the term "obviousness,"
` Dr. Rodriguez; do you have an understanding of what that
` term means in the context of patent infringement?
` MR. CITROEN: Objection. Form; and outside the
` scope.
` THE WITNESS: Again, in this matter, counsel did
` not provide me with a -- a definition of that legal
` term. Instead, I was asked to investigate whether the
` references disclosed or suggest all of the features in
` the challenged claims.
` BY MR. TSUEI:
` Q. So I keep hearing from you, Dr. Rodriguez,
` "disclosed or suggest," and I'd just would like to
` explore your methodology, then, in offering your
` opinions today.
` Can you tell me how you determined a particular
` reference at issue disclosed a particular limitation.
` MR. CITROEN: Objection. Form.
` THE WITNESS: If it is clear in the reference
` that a particular feature is present, then it's been
` disclosed.
` //
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 21
`
`
`
`Page 22
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` BY MR. TSUEI:
`Q. When you say "if something is clear in a prior
` art reference, then it is disclosed," for something to
` be clear, does it have to be explicitly described in
` writing or explicitly illustrated in a figure, for
` example, in that prior art reference?
`A. Not necessarily.
`MR. CITROEN: Objection. Form.
` BY MR. TSUEI:
`Q. Is it your understanding that if something is
` alluded to, then, that is strongly suggested, for
` example, then it is disclosed by that reference?
`MR. CITROEN: Objection to form.
`THE WITNESS: I'm not sure what you mean by
` "alluded to," but in my analysis, I found that all of
` the features of the challenged claims were actually
` disclosed in the references.
` BY MR. TSUEI:
`Q. When you use the term "actually disclosed," do
` you mean to say that the elements that you have in mind
` were actually discussed or illustrated in a prior art
` reference, for example?
`MR. CITROEN: Objection. Form.
`THE WITNESS: I mean that the features of the
` challenged limitations were disclosed, and I provide a
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 22
`
`
`
`Page 23
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` number of citations to specific places in those prior
` art references where that disclosure is made. And I'd
` be happy to walk through those instances with you.
` BY MR. TSUEI:
`Q. I promise we'll definitely get there. I
` apologize for belaboring the point, Dr. Rodriguez. I'm
` still not clear what you mean when you say "a prior art
` reference you reviewed today in connection with the
` proceeding discloses a particular element of the '477
` patent."
`Earlier you said that -- I'm going to -- earlier
` you said, If a prior art reference is clear about a
` particular element, then it discloses that element.
`Do you recall saying that?
`MR. CITROEN: Objection. Form.
`THE WITNESS: Yes. Let me give a bit more
` detail to answer your question. The approach I took was
` to determine whether a person having ordinary skill in
` the art of the claimed invention would have understood
` that the features were present in the disclosure, based
` on reading and looking at what was in the -- in -- in
` the reference.
` BY MR. TSUEI:
`Q. Dr. Rodriguez, are you familiar with what it
` means in the context of patent litigation for a
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 23
`
`
`
`Page 24
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` particular element of a patent claim to be expressly
` disclosed in a prior art reference?
` MR. CITROEN: Objection. Form.
` THE WITNESS: Is that a legal term that you're
` referring to?
` BY MR. TSUEI:
` Q. I suppose it doesn't matter. My question is, do
` you have an understanding of what it means for -- in the
` context of patent litigation, for a particular element
` of a patent claim to be expressly disclosed?
` And so if you don't have an understanding,
` that's fine, too. Just let me know.
` MR. CITROEN: Objection. Form.
` THE WITNESS: If you're referring to a usage
` that's different from the plain and ordinary meaning of
` the term, then I suppose I wouldn't be able to give you
` a -- a legal definition of the term since I'm not a
` lawyer.
` BY MR. TSUEI:
` Q. The two terms you mentioned in the paragraph 15
` of your report; that is, the two terms "disclose" and
` "suggest," is there a difference between those two terms
` and how you applied them in your methodology in reaching
` your opinions today?
` A. So the sentence in paragraph 15, when it says
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 24
`
`
`
`Page 25
` "disclose or suggest," is referring to the two separate
` sections in my analysis in the declaration,
` specifically, Section 9A and Section 9B.
` In Section 9A, I show how Brooks discloses all
` of the features; and in Section 9B, I show how Brooks
` discloses or suggests the features; and in Section 9B, I
` further explain what I mean by that.
` Q. So it looks like we both have the declaration in
` front of us. Can you tell me -- and you can, of course,
` reference Section 9B or 9A at your leisure.
` Can you tell what me the difference is, if there
` is one, between what it means for a prior art reference
` to disclose an element versus prior art suggesting a
` prior art element.
` MR. CITROEN: Objection. Form.
` THE WITNESS: When I say that the reference
` suggests a feature, I'm talking in the context of a
` scenario where -- I'm assuming a scenario where the 468
` application is seen as disclosing different embodiments
` from those disclosed in Brooks.
` And I was asked to determine whether a person of
` ordinary skill in the art would have been motivated to
` combine any different embodiments taught in Brooks and
` the, incorporated by reference, 468 application to
` achieve the features recited in the challenged claims.
`
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 25
`
`
`
`Page 26
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` BY MR. TSUEI:
` Q. You mentioned that one of the issues you were
` asked to opine about today is whether a person of
` ordinary skill would have been motivated to combine
` different embodiments of -- different embodiments about
` Brooks, and embodiments of the 4 -- incorporated by
` reference, 468 application. Is that correct?
` A. Yes.
` Q. The 468 application is a reference to the
` provisional application to which the Brooks prior art
` claims priority; is that -- is that correct?
` MR. CITROEN: Objection. Form.
` THE WITNESS: It refers to the provisional
` application that the Brooks patent derives from.
` BY MR. TSUEI:
` Q. In your preparation for today's testimony,
` Dr. Rodriguez, was the 468 application -- let's just
` call it the 468 application, but understand it refers to
` Exhibit 1007 to your declaration.
` In your preparation for today's testimony, was
` the 468 application one of the documents you reviewed to
` prepare for today's testimony?
` A. Yes.
` MR. CITROEN: Objection. Form.
` //
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 26
`
`
`
`Page 27
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` BY MR. TSUEI:
` Q. And it's fair to say that you've offered an
` opinion in your declaration that a person of ordinary
` skill would combine elements of embodiments in the 468
` application with embodiments in the Brooks prior art
` reference; is that correct?
` MR. CITROEN: Objection. Form.
` THE WITNESS: I was asked to assume a scenario
` where the 468 application is seen as disclosing
` different embodiments from those in Brooks, and in that
` scenario, whether a person of ordinary skill in the art
` would have been motivated to combine the two.
` BY MR. TSUEI:
` Q. Outside of the context of this particular IPR
` proceeding, have you ever encountered in your expert
` consulting work the concept or doctrine of obviousness
` in patent litigation?
` MR. CITROEN: Objection to form.
` THE WITNESS: I have.
` BY MR. TSUEI:
` Q. And is it fair to say that the exercise you were
` asked to assume and perform, that is, whether or not a
` person of ordinary skill would combine embodiments of
` the 468 application on one hand and the embodiments of
` the Brooks prior art reference on the other hand, is
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Realtime Adaptive Streaming LLC
`Exhibit 2008
`IPR2019-01035
`Page 27
`
`
`
`Page 28
` related to the concept of obviousness in the context of
` patent litigation?
` MR. CITROEN: Objection to form.
` THE WITNESS: I can't say. The concept of
` obviousness that I've encountered in other expert
` consulting activities involved different legal courts
` that may have had different rules. So I don't know
` whether the legal meaning of obviousness in some of
` those other litigations is the same as the meaning of
` obviousness as it would be used in this litigation,
` since I'm not a lawyer.
` BY MR. TSUEI:
` Q. Dr. Rodriguez, are you saying it's possible
` that, in the context of this particular proceeding, that
` is, the inter partes review proceeding regarding the
` '477 patent, it could potentially involve a different,
` let's say, legal standard of obviousness compared to the
` prior cases you've worked on that have involved
` something called obviousness; is that -- is that what
` you're saying?
` MR. CITROEN: Objection. Form.
` THE WITNESS: Yes. That's certainly a
` possibility. I don't know whether all -- all different
` courts use the same definitions of all of these legal
` terms. And I don't know whether or not counsel that I
`
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