UNITED STATES PATENT AND TRADEMARK OFFICE
` -----------------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------
` ROKU, INC.,
` Petitioner,
` v.
` UNIVERSAL ELECTRONICS INC.,
` Patent Owner.
` -----------------------------------
` Case No. IPR2019-01615
` U.S. Patent No. 9,716,853
`
` Videotaped Deposition of
` DR. SAMUEL H. RUSS
` Conducted Virtually
` Wednesday, June 24, 2020
` 9:33 a.m.
`
`Job No.: 304822
`Pages: 1 - 65
`Reporter: Debra Bollman, RMR, CRR, CSR 11648
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`UEI Exhibit 2003, Page 1 of 84
`Roku, Inc. v. Universal Electronics, Inc., IPR2020-00952
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`
` -----------------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------
` ROKU, INC.,
` Petitioner,
` v.
` UNIVERSAL ELECTRONICS INC.,
` Patent Owner.
` -----------------------------------
` Case No. IPR2019-01615
` U.S. Patent No. 9,716,853
`
` Videotaped Deposition of
` DR. SAMUEL H. RUSS
` Conducted Virtually
` Wednesday, June 24, 2020
` 9:33 a.m.
`
`Job No.: 304822
`Pages: 1 - 65
`Reporter: Debra Bollman, RMR, CRR, CSR 11648
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`Roku, Inc. v. Universal Electronics, Inc., IPR2020-00952
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`
`
`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`2
`
` VIDEOTAPED DEPOSITION OF SAMUEL RUSS, held
`remotely via Zoom videoconference.
`
` Witness Location: Mobile, Alabama
`
` Pursuant to notice, before Debra Bollman,
`Registered Merit Reporter, Certified Realtime
`Reporter, and Certified Shorthand Reporter, in and
`for the State of California.
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`Roku, Inc. v. Universal Electronics, Inc., IPR2020-00952
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`
`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`3
`
` A P P E A R A N C E S
` ON BEHALF OF PETITIONER ROKU, INC.:
` JON E. WRIGHT ESQUIRE
` ALI ALLAWI, ESQUIRE
` Sterne, Kessler, Goldstein & Fox, LLP
` 1100 New York Ave. NW
` Suite 600
` Washington DC, 20005
` +1 202.772.8651
` Jwright@sternekessler.com
`
` ON BEHALF OF PATENT OWNER UNIVERSAL
` ELECTRONICS:
` BENJAMIN GILFORD, ESQUIRE
` Greenberg Traurig LLP
` 77 West Wacker Drive
` Chicago, IL 60601
` Suite 3100
` +1 312.364.1658
` Gilfordb@gtlaw.com
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`Roku, Inc. v. Universal Electronics, Inc., IPR2020-00952
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`4
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` A P P E A R A N C E S C O N T I N U E D
`
` ON BEHALF OF PATENT OWNER UNIVERSAL
` ELECTRONICS:
` NICK TSUI, ESQUIRE
` Alston & Bird
` One Atlantic Center
` 1201 West Peachtree Street
` Suite 4900
` Atlanta, GA 30309-3424
` Nick.tsui@alston.com
`
` ALSO PRESENT:
` Annie Brown - Videographer
` Austin Costello - Videotech
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`5
`
` I N D E X
` WITNESS PAGE
` DR. SAMUEL H. RUSS
` EXAMINATION BY MR. GILFORD 7
` EXAMINATION BY MR. WRIGHT 59
`
` I N D E X O F E X H I B I T S
` EXHIBITS DESCRIPTION PAGE
`Exhibit 1 Petition 41
`
` PREVIOUSLY MARKED EXHIBITS
` EXHIBIT DESCRIPTION PAGE
`Exhibit 1003 Declaration of Dr. Samuel H. Russ 16
`Exhibit 1001 U.S. Patent Number 9,716,853 36
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`UEI Exhibit 2003, Page 5 of 84
`Roku, Inc. v. Universal Electronics, Inc., IPR2020-00952
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`09:33:03
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`6
`
` P R O C E E D I N G S
` THE VIDEOGRAPHER: Here begins Disk
`Number 1 in the videotaped deposition of
`Dr. Samuel H Russ in the matter of Roku
`Incorporated, et al., versus Universal Electronics
`Incorporated, et al., in the United States Patent
`and Trademark Office, before the Patent Trial and
`Appeal Board, in Case Number IPR2019-01615 related
`to U.S. Patent Number 9,716,853.
` Today's date is June 24th, 2020. The time
`on the video monitor is 9:34. The videographer
`today is Annie Brown, representing Planet Depos.
` All parties are attending this deposition
`remotely. Would counsel please voice identify
`themselves and state whom they represent.
` MR. GILFORD: You have Ben Gilford of
`Greenberg Traurig here on behalf of patent owner
`Universal Electronics, and with me today is Nick
`Tsui of Alston & Bird.
` MR. WRIGHT: This is Jon Wright,
`representing the petitioner, Roku, Inc., from the
`law firm of Sterne Kessler Goldstein & Fox. And
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`09:35:02
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`7
`
`with me on the call is Ali Allawi.
` THE VIDEOGRAPHER: The court reporter
`today is Debra Bollman, representing Planet Depos.
`Would the reporter please swear in the witness.
` S T I P U L A T I O N S
` THE REPORTER: Will counsel please
`stipulate that in lieu of formally swearing in the
`witness, the reporter will instead ask the witness
`to acknowledge that their testimony will be true
`under the penalties of perjury, that counsel will
`not object to the admissibility of the transcript
`based on proceeding in this way, and that the
`witness has verified that he is in fact SAMUEL
`RUSS.
` Do counsel agree?
` MR. GILFORD: We agree.
` MR. WRIGHT: I agree.
`Whereupon,
` DR. SAMUEL H. RUSS,
` The witness herein, was examined and
`testified under penalty of perjury as follows:
` EXAMINATION
`
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`8
`
`BY MR. GILFORD:
` Q. Good morning, Dr. Russ. It's good to meet
`you. How are you today?
` A. I'm doing well.
` Q. Good. Can you go ahead and please state
`your full name for the record.
` A. Samuel Hardie Russ, and that's
`H-a-r-d-i-e.
` Q. And I'm just going to run through a couple
`deposition expectations today. I know you've been
`deposed before. So these should sound pretty
`familiar to you. Is there any reason why your
`testimony you offer today would not be truthful?
` A. No.
` Q. So the court reporter is taking down every
`word we say. So it's important that we don't talk
`over each other, especially because this is a Zoom
`depo. I'll ask a question, please let me finish,
`and then I'll let you answer completely before
`asking my next question.
` Because the court reporter is taking down
`everything we say, we need verbal responses, so
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`9
`
`shrugs and head nods are not sufficient.
` If you don't understand a question, just
`please ask for clarification. If you answer, I'll
`assume that you're answering the question posed.
` And if you need a break, just go ahead and
`ask for it. The one limitation I have is if
`there's a question pending, you go ahead and
`answer the question before we take a break.
` So kind of we're in this unique situation
`where we're taking this deposition remotely. I
`kind of wanted to ask if you have any other
`electronic devices with you in the room today?
` A. I do not.
` Q. Okay.
` A. Well, I mean, let me be totally clear.
`I'm using my cell phone to provide an internet
`connection. But I am not using my cell phone. In
`fact, before I forget, I'm going to put it on
`silent right now.
` Q. Sure.
` A. But I am not -- it's being used for
`internet connection, and I am not accessing it in
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`10
`
`any way.
` Q. Got it.
` A. Other than that, no. There are no
`electronics.
` Q. Sorry. Are there any other people in the
`room with you today?
` A. No.
` Q. And do you have any handwritten notes with
`you today?
` A. No.
` Q. Do you have any notes pulled up on your
`computer?
` A. No.
` Q. Any other web pages open on your computer
`other than Zoom?
` A. No.
` Q. And do you have any email or messaging
`programs open on your computer?
` A. Let me make sure I don't -- I do not. And
`I'm -- I'm closing things on my computer now.
` Okay. I do not.
` Q. Approximately how many times have you been
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`11
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`deposed before?
` A. 20 to 30 times.
` Q. And have you ever testified at trial?
` A. Yes.
` Q. About how many times have you testified at
`trial?
` A. Roughly five times.
` Q. And have you ever testified at a hearing
`before?
` A. At a arbitration -- no. Well, let me be
`clear. I've testified at ITC. I've testified in
`district court.
` Q. Got it. So has your testimony or opinions
`ever been excluded?
` A. Not that I'm aware of.
` Q. And have you ever previously provided
`testimony relating to remote control technology?
` A. Well, last week in the sort of sister IPRs
`related to different patents owned by UEI.
` Q. Sure. I'm sorry, outside of the other IPR
`proceedings that are related to this one, have you
`ever provided testimony relating to remote control
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`12
`
`technology?
` A. Not that I recall at the moment.
` Q. Okay. Have you ever previously provided
`testimony or opinions on behalf of Roku? And
`again, that's outside of the sister IPRs.
` A. Yes, I am a witness, an expert witness, in
`MV3 versus Roku, which is district court
`litigation that's ongoing right now. And
`that's --
` Q. You said MV3?
` A. MV3, yes.
` Q. Okay. And what is that case related to?
` A. MV3 purports to have a patent on a mobile
`set-top box, and so that deals with the Roku
`device generally. It is not related to the remote
`control functionality of the Roku device.
` Q. Got it. And what stage of the case is
`that case in, if you know?
` A. It should be going to trial in late July.
` Q. Okay. So you've already provided an
`expert report in that case?
` A. I provided two, an infringement report and
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`13
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`an invalidity rebuttal, because I'm a --
` Q. Got it.
` A. What -- I'm sorry, an invalidity report --
`I've got that backwards. Let me start over.
` I provided a validity report and a
`noninfringement rebuttal because I'm -- I'm the --
` Q. Right.
` A. On behalf of defendant Roku in that
`matter.
` Q. Got it. I think you mean a report that is
`trying to show how the MV3 patent is invalid.
` A. Yes. And how Roku does not infringe it.
` Q. Got it. Perfect. Have you done anything
`in that case other than provide your two reports?
`So, for example, testifying at a deposition or
`something like that?
` A. Yes, I testified at a deposition.
` Q. Anything else in that case?
` A. No.
` Q. How many hours would you say you've put
`into that case, approximately?
` A. Into that case? Many dozen, possibly over
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`14
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`a hundred.
` Q. Okay. And are you being compensated for
`your time in that case?
` A. Yes, I am.
` Q. And what is your hourly rate in that case?
` A. My recollection is it is $350 per hour.
` Q. Okay. And, again, you said you probably
`put in -- you've possibly put more than a hundred
`hours into that case, correct?
` A. Possibly.
` Q. Okay. Any other testimony or opinions
`that you've provided on behalf of Roku other than
`that case and the UEI IPRs?
` A. No.
` Q. Okay. Have you ever --
` A. And, again, to be clear, the subject
`matter of that litigation and this matter is, in
`my opinion, nonoverlapping.
` Q. Okay. Why do you say that?
` A. Because the litigation does not deal with
`remote controls.
` Q. Got it. So in your opinion, this case is
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`Transcript of Dr. Samuel H. Russ
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`15
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`related to remote control technology?
` A. In my opinion it is not related to the
`set-top box. These patents do not allege that the
`Roku device is a set-top box having specific
`properties as covered in that patent.
` Q. So in your opinion, this IPR is unrelated
`to set-top box technology?
` A. I didn't say that. I said the subject
`matter of the two litigation -- the two, in my
`opinion, is not overlapping.
` Q. Okay. In your opinion, the subject matter
`of these IPRs is unrelated to set-top box
`technology?
` A. No, the subject matter of these is
`unrelated to the patent asserted in the MV3 case.
` Q. Okay. And, again, that patent related to
`set-top box technology, correct?
` A. The patent is -- the claim, asserted claim
`there is extremely long, has numerous limitations,
`and I believe that this matter is unrelated to
`that.
` Q. Okay. Have you ever previously provided
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`Transcript of Dr. Samuel H. Russ
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`16
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`testimony or opinions on behalf of an entity owned
`or controlled by Roku?
` A. Other than the matters we've discussed
`here today, no.
` Q. Okay. Juan, can we go ahead and pull up
`Exhibit 1003.
` (Previously marked Deposition Exhibit 1003
`was reviewed.)
` A. While he's pulling that up, Counselor, do
`I have a paper copy in the box that was
`overnighted to me?
` Q. Sorry, Dr. Russ, all the exhibits we're
`going to use today should be in the box that you
`received.
` A. All right. So I'm going to open that box
`now.
` Q. Yes, please do, if you'd like to use paper
`copies.
` A. Right.
` MR. WRIGHT: I'll just make an observation
`for the court reporter while Dr. Russ is doing
`that. I don't think it's necessary to relabel the
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`17
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`exhibits, as they've been previously labeled
`already, as you can see.
` (Discussion held off the written record.)
` Q. Dr. Russ, were you able to grab
`Exhibit 1003?
` A. Yes, I was.
` Q. All right. And you've seen this document
`before, correct?
` A. Yes, I have.
` Q. And this is the declaration you prepared
`for this IPR, right?
` A. Yes, that is correct.
` Q. Can we go ahead and turn to page 4 of the
`declaration.
` And, Dr. Russ, if you can flip to page 4
`along with us.
` A. All right.
` Q. And let me know when you're there.
` A. I'm there.
` Q. Okay. So, Dr. Russ, on page 4 of your
`declaration, going onto page 6, you see there that
`there's a list of materials that you considered in
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`18
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`preparing your declaration, right?
` A. Yes.
` Q. Are there any materials that you
`considered that are not listed in this table?
` A. No. The materials that are listed here
`are the ones that are relied upon to form my
`opinions.
` Q. Okay. And did you consider the
`prosecution history of the '853 patent when you
`prepared your declaration in this case?
` Just so you know, I'm not trying to trick
`you. I don't believe it's listed in your table,
`but...
` A. My recollection at the moment is that I
`did not. Unless I refer to it in my report, and I
`don't recall at the moment, I did not.
` Q. Gotcha. Do you recall ever having read
`the prosecution history of the '853 patent?
` A. Not that I recall at the moment.
` Q. Okay.
` And then if we can flip to page 14 of this
`document. And let me know when you're there,
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`19
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`Dr. Russ.
` A. I'm there.
` Q. Okay. And go ahead, if you would, and
`look at the first sentence of paragraph 32. And
`you see there it says that: Petitioner relies on
`a version of the HDMI specification that was
`publicly available well before the time of filing
`of the '853 patent.
` Do you see that?
` A. I do.
` Q. Now, in your declaration, when you say
`"HDMI specification," are you referring to version
`1.3a?
` A. Yes.
` Q. Okay. You didn't perform an independent
`investigation to determine whether the HDMI
`specification version 1.3a was, in fact, publicly
`available before the filing date of the '853
`patent, correct?
` MR. WRIGHT: Objection. Form.
` THE WITNESS: I'm not sure what you mean
`by "independent investigation." The standard
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`20
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`itself calls out an availability date, and I know
`I -- I believe the HDMI standards making body to
`making -- to be making an accurate representation
`of the date availability on the face of the
`document.
`BY MR. GILFORD:
` Q. Okay. Counsel never informed you what the
`legal standard is for whether a prior reference is
`publicly available, correct?
` A. I don't seem to have that standard handy,
`but I can tell you that the HDMI standard was
`very, very visible in the community, and it was
`extremely widely well known, widely published, and
`readily accessible.
` And to the extent that membership would be
`required to obtain the specification, I'm not sure
`if it was or not. Everyone in the industry was
`motivated to become a member to adopt HDMI
`technology.
` It was -- especially by the relatively
`late date of the '853 patent, which I believe,
`offhand, was 2010, HDMI had essentially taken over
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`21
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`the world by that point.
` And so this was one of the most widely
`available and widely cited technical standards in
`consumer electronics.
` Q. I'm going to object to that answer as
`nonresponsive, and we'll move to strike or exclude
`it.
` The question again, Dr. Russ -- I believe
`it was a little bit different than the question
`you were answering -- was: Did counsel ever
`inform you whether the -- what the legal standard
`is for whether a prior art reference is publicly
`available?
` A. I don't recall if they did, but I can tell
`you the HDMI standard was publicly available.
` Q. Okay. What is your basis for saying that?
` A. The HDMI standard is one of the most
`widely adopted technical standards in the consumer
`electronics industry, perhaps even in the history
`of consumer electronics.
` It's nearly ubiquitous today. Especially
`by 2010 it was ubiquitous, and therefore it was
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`22
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`extremely highly visible. That's why Chardon
`refers to it so consistently, because it is an
`extremely well-known standard.
` Q. Okay. You didn't independently go ahead
`and try to figure out whether you could -- whether
`a member of the public could try and access the
`HDMI 1.3a standard online, did you?
` MR. WRIGHT: Objection. Form and
`foundation.
` THE WITNESS: I did not because, again,
`everyone in the consumer electronics industry was
`motivated to join the HDMI consortium and obtain a
`copy of it.
` The existence of it, even if it was behind
`some sort of membership requirement, was extremely
`well known in the industry.
`BY MR. GILFORD:
` Q. Okay. And you have no independent
`knowledge of whether membership was required to
`access the HDMI 1.3a standard, correct?
` A. I have no independent knowledge of that,
`but I can tell you that everyone was
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`23
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`overwhelmingly motivated to become a member for
`that reason, to have access to the standard.
` MR. GILFORD: And just for the court
`reporter's reference, when I say "HDMI 1.3a," it's
`the letter "a," not the number "8." So that's
`just for the court reporter's reference.
`BY MR. GILFORD:
` Q. Dr. Russ, have your opinions changed since
`you signed your declaration?
` A. My opinions have not.
` Now, I've had access to reports that were
`filed later, specifically the patent Board's
`decision to institute and the patent owner's
`response. But those did not change my opinions.
` Q. Was there anything in the Board's
`institution decision that you disagreed with?
` A. Not that I recall at the moment.
` Q. Okay. Let's talk briefly about your
`deposition preparation for today.
` A. Okay.
` Q. And, sorry, just returning once again to
`the Board's institution decision, Dr. Russ, was
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`24
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`there anything in the Board's institution decision
`that you recall where you disagreed with how the
`board characterized Roku's arguments?
` MR. WRIGHT: Objection. Form and
`foundation.
` THE WITNESS: I -- not that I recall at
`the moment.
`BY MR. GILFORD:
` Q. Okay. Did you do anything to prepare for
`today's deposition?
` A. Yes, I did.
` Q. What did you do?
` A. I read -- re-read my declaration, for
`example. I read the decision to institute. I
`read through some of the references, the
`materials.
` I read through some of the materials that
`are listed in the Materials Considered list, like
`the HDMI standard and the '853 patent, and I met
`with counsel.
` Q. Okay. You said you met with counsel.
`Which counsel, in particular, did you speak with?
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`25
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` A. I met with Counselor Wright and Counselor
`Allawi.
` Q. And how long did you meet with counsel
`for?
` A. It was a few hours. I don't know the
`exact number.
` Q. And when was that?
` A. It was yesterday.
` Q. And did you speak with anyone else about
`today's deposition?
` A. Not that I recall at the moment.
` Q. I think you might have mentioned this
`already, but what kind of documents did you review
`in preparation for today's deposition?
` A. Well, as I said, the -- my declaration,
`the decision to institute, maybe the patent
`owner's response, and materials that would be in
`my Materials Considered list, a subset of those
`materials.
` Q. Gotcha. And I know you mentioned the
`institution decision and patent owner's response,
`which I imagine are not in your list of materials
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`26
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`considered in your declaration, but are there any
`other documents you reviewed in preparation for
`today's deposition that are not listed in the
`Materials Considered section?
` A. Other than those two, not that I recall.
` Q. Did you speak with anybody else about
`today's deposition?
` A. No.
` Q. Have you spoken with an individual named
`Steve Venuti?
` A. No.
` Q. Have you ever spoken with an individual
`named Christopher Butler?
` A. No.
` Q. Have you ever spoken with anybody at Roku?
` A. No.
` Q. Okay. You have a bachelor's degree in
`electrical engineering from Georgia Tech, correct?
` A. That's correct.
` Q. And you obtained that degree in 1986,
`right?
` A. Yes.
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
`
`27
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` Q. And you got a doctorate in electrical
`engineering from Georgia Tech in 1991, right?
` A. That's correct.
` Q. And you worked as a graduate research
`assistance at Georgia Tech from 1987 to 1991,
`correct?
` A. That's correct.
` Q. Did you do any work that related
`specifically to remote controls while you worked
`at Georgia Tech?
` A. No. Other than -- no.
` Q. Did you do any work that related
`specifically to universal remote controls?
` A. No. Not at Georgia Tech.
` Q. Did you design any remote control devices
`while you worked at Georgia Tech?
` A. No, I did not.
` Q. Did you design any universal remote
`control devices while at Georgia Tech?
` A. No.
` Q. So then you worked at Dickerson Vision
`Technologies from 1992 to 1994, correct?
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`Transcript of Dr. Samuel H. Russ
`Conducted on June 24, 2020
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`28
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` A. Yes, that's correct.
` Q. And did you do any work that related
`specifically to remote controls while you worked
`at Dickerson Vision Technologies?
` A. The overlap, to the extent that there is
`any, has to do with the fac
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