UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - x
`Case Nos.
`YITA LLC,
`:
`Petitioner, : IPR2020-01139, IPR2020-01142
`: U.S. Patent Nos.
`v.
`: 8,382,186 and 8,833,834
`MACNEIL IP LLC,
`Patent Owner. :
`- - - - - - - - - - - X
`
`Deposition of BRUCE D. POPP, Ph.D.
`Conducted Virtually
`Monday, June 28, 2021
`9:55 a.m. EDT
`
`Job No.: 379970
`Pages 1 - 119
`Reported by: Debra A. Whitehead
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`EX1046
`Yita v. MacNeil
`IPR2020-01139
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - x
`Case Nos.
`YITA LLC,
`:
`Petitioner, : IPR2020-01139, IPR2020-01142
`: U.S. Patent Nos.
`v.
`: 8,382,186 and 8,833,834
`MACNEIL IP LLC,
`Patent Owner. :
`- - - - - - - - - - - X
`
`Deposition of BRUCE D. POPP, Ph.D.
`Conducted Virtually
`Monday, June 28, 2021
`9:55 a.m. EDT
`
`Job No.: 379970
`Pages 1 - 119
`Reported by: Debra A. Whitehead
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`EX1046
`Yita v. MacNeil
`IPR2020-01139
`
`
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
`
`2
`
` Deposition of BRUCE D. POPP, Ph.D., conducted
`virtually.
`
` Pursuant to notice, before Debra Ann Whitehead,
`E-Notary Public in and for the State of Maryland.
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`3
`
` A P P E A R A N C E S
` ON BEHALF OF PETITIONER:
` STEPHEN A. MERRILL, ESQUIRE
` R. WILSON POWERS, III, ESQUIRE
` JASON A. FITZSIMMONS, ESQUIRE
` STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
` 1100 New York Avenue, NW, Suite 600
` Washington, DC 20005
` (202) 371-2600
`
`ON BEHALF OF PATENT OWNER:
` DAVID G. WILLE, ESQUIRE
` BAKER BOTTS LLP
` 2001 Ross Avenue, Suite 900
` Dallas, Texas 75201-2980
` (214) 953-6595
` - and -
` JEFFERSON PERKINS, ESQUIRE
` PERKINS IP LAW GROUP, LLC
` 4200 Commerce Court, Suite 310
` Lisle, Illinois 60532
` (630) 505-1305
`
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`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
`ALSO PRESENT:
` ALEX SUSSMAN, A/V Technician
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
`
`5
`
` C O N T E N T S
`EXAMINATION OF BRUCE D. POPP, Ph.D. PAGE
` By Mr. Merrill 7
` By Mr. Wille 96
` By Mr. Merrill 111
`
` EXHIBITS MARKED IN TODAY'S SESSION
` (Attached to the Transcript)
`DEPOSITION EXHIBIT PAGE
` Exhibit 1039 Boston Patent Law Association 93
` Newsletter, Summer 2010,
` Volume 41, Issue 3
` Exhibit 1040 Article, Using Patents to Find 95
` the Terminology You Need, by
` Popp
`
` EXHIBITS MARKED IN PRIOR SESSIONS
` (Not Attached)
`DEPOSITION EXHIBIT PAGE
` Exhibit 1005 Rabbe Patent 13
` Exhibit 2024 Declaration of B. Popp in 11
` '1124 Case
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`6
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` EXHIBITS MARKED IN PRIOR SESSIONS - CONTINUED
`DEPOSITION EXHIBIT PAGE
` Exhibit 2027 Excerpt of French Dictionary 68
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`Conducted on June 28, 2021
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`7
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` P R O C E E D I N G S
` BRUCE D. POPP, Ph.D.,
` having been duly sworn, testified as follows:
` EXAMINATION BY COUNSEL FOR PETITIONER
`BY MR. MERRILL:
` Q Good morning, Dr. Popp.
` A Good morning.
` Q My name is Steve Merrill. I'll be taking
`your deposition today.
` Would you please state your full legal
`name, for the record.
` A My full legal name is Bruce Donald Popp.
` Q Thank you. And you're here to provide
`testimony for declarations you submitted in two
`cases, and I am going to read the two case numbers
`for you. IPR2020-01139 and IPR2020-01142.
` Is that right?
` A Yes.
` Q Have you ever been deposed before?
` A No.
` Q Is this your first time?
` A Yes.
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`8
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` Q And have you ever served in an expert
`witness in a capacity other than a translator?
` A No.
` Q I'm going to go over just a few ground
`rules, especially since this is a virtual
`deposition, to help us out.
` First, it's important to speak clearly.
`And we need to answer with words rather than hand
`gestures or nodding our head.
` Does that sound good?
` A Yes, it does.
` Q And just to make sure we're not talking
`over each other, please wait until the question is
`finished before you respond. Okay?
` A Yes.
` Q If you don't understand a question I ask,
`will you please tell me?
` A I will.
` Q And if you don't ask me to clarify, we'll
`assume that you understood the question?
` A Okay.
` Q We'll plan to take a break about every
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`9
`
`hour. If you need a break, let me know. I do ask
`if there is a question pending that you answer the
`question before we go off the record.
` A That's good.
` Q Counsel for Patent Owner MacNeil may
`object to questions I ask from time to time. But
`you still need to answer the question.
` A I understand.
` Q Are you under the influence of anything
`like medications that might make it difficult for
`you to answer and understand my questions today?
` A I am not.
` Q Is there any other reason you cannot
`provide your complete and accurate testimony?
` A No other reason.
` Q Where are you physically located,
`Dr. Popp, today?
` A I'm in Harrisburg, Pennsylvania.
` Q And are you alone in the room?
` A Yes.
` Q And what equipment do you have with you
`today?
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`10
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` A I have a desktop windows PC with camera
`and microphone. That's what I'm using. I have an
`iPad off to one side, and my cell phone is nearby.
` Q Is your cellphone on?
` A Yes. I will -- if you give me a second,
`I'll put it in silent mode.
` Q Sure.
` A Okay, it is.
` Q And do you agree not to communicate using
`that cellphone while we're on the record today?
` A I agree.
` Q Do you have any hard copies of any
`documents with you today, Dr. Popp?
` A Yes. I have a hard copy of Exhibit 1005,
`I have a hard copy of Exhibit 2024, and I have a
`printed copy of the Rabbe patent that's also in I
`believe both -- or at least in Dawson translation
`as the original. But it is more convenient to
`have it separate.
` Q Got it.
` Do you have two copies of your
`declaration, one from each case, or do you just
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`11
`
`have one copy?
` A I just have one paper copy in front of
`me.
` Q Okay. Which case is that from?
` A From the '139.
` Q The '139.
` So if you could turn to Page 8 of that
`exhibit. And that's Exhibit 2024?
` (Exhibit 2024, previously marked, not
`attached.)
` A That's right.
` Okay, I have turned to Page 8.
` Q And the document was signed on March 3rd,
`2021.
` Is that correct?
` A Yes.
` Q Is that your signature?
` A Yes.
` MR. MERRILL: And would the technician
`pull up Exhibit 2024 from the '1142 case. And
`would you go to Page 8 of the PDF.
` And scroll down to the bottom, bottom
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`Transcript of Bruce D. Popp, Ph.D.
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`12
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`half of the page.
` Q So, Dr. Popp, you see this exhibit was
`also signed on March 3rd, 2021?
` A Yes.
` Q And is that your signature as well?
` A Yes, it is.
` Q Are there any differences between these
`two declarations?
` A Not that I'm aware of.
` Q So if we can just focus on your '1139
`declaration, and your testimony applies equally to
`both cases.
` Is that right?
` A Yes.
` Q Did you review your declaration in
`advance of this deposition?
` A Yes, I did.
` Q Did you review it carefully?
` A Yes, I did.
` Q And your declaration includes your
`translation of French Patent Application
`Publication Number 2547252 to Rabbe as an
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`Conducted on June 28, 2021
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`13
`
`attachment. Correct?
` A Yes.
` Q Is it okay if we refer to that
`publication as Rabbe?
` A Yes.
` Q All right. Would you take out Exhibit
`1005 and turn to Page 13 of 21 of the PDF.
` (Exhibit 1005, previously marked, not
`attached.)
` A Okay.
` Q Do you recognize this document?
` A Yes. That's the original Rabbe patent in
`French.
` Q So this is the Rabbe publication that you
`translated?
` A Yes.
` Q When were you first contacted about
`providing your declaration and accompanying
`translation?
` A I don't recall the exact date.
` Q Do you have an estimate of about when it
`was?
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`Conducted on June 28, 2021
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`14
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` A Early this year.
` Q And who contacted you?
` A Mr. Wille.
` Q Have you ever worked with Mr. Wille
`before?
` A I have not.
` Q And how about his law firm, Baker Botts;
`have you worked with them before?
` A I have not.
` Q Have you ever worked with Perkins IP Law
`Group before?
` A I have not.
` Q Why did you decide to accept this
`project?
` A I thought that the subject matter of
`patent was within my experience, I had been
`looking to get more work as an expert witness. So
`it seems to be a good match.
` Q How many other translations were you
`working on at the time that you translating the
`Rabbe document?
` A I can't give you a good estimate. It --
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`15
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`my work flow varies.
` Q Would you say it was more than five?
` A While I was working on the Rabbe patent,
`it had my undivided attention. There may have
`been patents I worked on before it, and there may
`have been time between when I did the translation
`and when I went to review or self-edit my work
`when I worked on other patents. I would need to
`look at my schedule to be able to accurately
`answer your question.
` Q Did you write the declaration, which is
`on Pages 1 to 8 of Exhibit 2024?
` A Yes.
` Q You, personally, typed it?
` A Yes.
` Q What was your process for preparing that
`aspect of the declaration?
` A I had previously prepared in a separate
`declaration I provided the statement for my
`expertise. That was used. Then there was
`consideration of certain words that might be
`translated differently between my patent and
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`16
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`Rabbe's patent. And looked for documentation
`providing insight on the meaning of those --
`meaning and use of those words.
` Q Were there multiple iterations of your
`declaration?
` A I don't recall.
` Q Were you asked to make any changes to
`your declaration?
` A I don't recall.
` Q So about how much time did you spend
`preparing the declaration on Page 1 through 8 of
`Exhibit 2024?
` A Several hours.
` Q And several hours, is that more than
`five?
` A I think so. I would need to look in my
`records to give a specific number.
` Q Have you ever prepared a translation to
`be used in a U.S. court proceeding before?
` A Yes, I have.
` Q What proceeding was that?
` A It was a case in the federal court in
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`17
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`U.S. district for Jacksonville. I don't remember
`the case number.
` Q Do you remember the technology that was
`at issue in that translation?
` A No. I'm drawing a blank at the moment.
`I do not.
` Q Are there any others that you've done for
`court proceeding before, any other translations?
` A None that -- none where I've been
`involved or provided a declaration to the court.
`Some translations, once they leave my hands,
`they -- don't know how they get used.
` Q And have you ever prepared a translation
`to be used in an administrative proceeding between
`adversarial parties?
` A Other than the case that I mentioned, I'm
`not aware of any being used in adversarial
`proceedings.
` Q Okay. How did you prepare for today's
`deposition?
` A I reviewed the exhibits that are in front
`of me. I reviewed Dawson's translation, his
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`18
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`deposition testimony. I went back and reviewed
`some of the references that I had consulted in
`preparing my deposition.
` Q Did you meet with anyone to prepare for
`today's deposition?
` A I at different times had conversations
`with Mr. Wille.
` Q How many times?
` A I don't recall specifically.
` Q How long ago were those meetings?
` A They've been ongoing since I was engaged
`for this proceeding.
` Q So over the course of 2021, you've met
`several times with Mr. Wille about this case,
`then?
` A Yes.
` Q And earlier you said you had reviewed
`your declaration. Did you notice any errors in
`your declaration?
` A I did not.
` Q If you notice any errors, do you agree to
`tell me?
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`Conducted on June 28, 2021
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`19
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` A Yes.
` Q Anything else that you did for deposition
`preparation?
` A Not that I specifically recall.
` Q Is English your native language,
`Dr. Popp?
` A Yes, it is.
` Q How did you learn French?
` A I learned French all over the place over
`many decades.
` Q Did you take any classes in high school
`for French?
` A I took French in high school, yes. I did
`not take French in college.
` Q Have you spent any time in a country that
`speaks primarily French?
` A Yes. I was a Peace Corps volunteer in
`what was then Zaire, now the Democratic Republic
`of the Congo. I taught physics in French for two
`years. I had ten weeks of training with Peace
`Corps before starting that.
` I have at different times in previous
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`20
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`career as a systems engineer for Bell Labs worked
`with clients in Paris and Brussels and have
`communicated with their telecom engineers in
`French. At -- was previously married to a
`French-speaking woman.
` Q Do you speak any other languages besides
`French?
` A At different levels of ability, yes.
` Q What languages are those?
` A Kikongo, that's K-I-K-O-N-G-O. I have
`took -- taken a couple of semesters of classic
`Greek, most of that's forgotten. And I took one
`year class in German, and I have very limited
`ability in German.
` Q So do you translate in any of those
`languages -- or I should say into or out of any of
`those languages?
` A No. Strictly French.
` Q In Paragraph 1 of your declaration you
`state that you have experience translating patents
`and patent-related documentation.
` Is that right?
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`Conducted on June 28, 2021
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`21
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` A Yes, I have that experience.
` Q What do you mean by "patent-related
`documentation"?
` A I mean several things.
` I have translated a number of decisions
`from the European Patent Office, Opposition
`Division. I have translated briefs filed with the
`Opposition Division. I've translated minutes of
`meetings -- or, yeah, meetings at the Opposition
`Division. I've translated briefs filed in patent
`cases with the Paris Tribunal de Grande Instance.
`I can correct that later. And I have translated
`expert reports provided to the Paris courts in
`patent matters.
` Q So are all of those translations from
`French into English?
` A That's correct.
` Q And do you know whether those were then
`submitted to the patent office?
` A Those I believe were provided to U.S.
`partners of litigants in the case.
` Q Okay. So it was for attorneys' knowledge
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`22
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`so they could review the document and understand
`what it was saying.
` Is that right?
` A Which document do you mean? Do you mean
`the ones from the patents that I've translated or
`the present case?
` Q The patent-related document that we were
`talking about.
` A Yes. And what about that?
` Q I was asking you to confirm that those
`documents were translated into English so that
`those attorneys you referenced could understand
`what those documents were saying.
` A Most of my work goes through agencies,
`and I don't have direct contact with people who
`contract with those agencies for translations.
` So in the majority of my work, I don't
`actually know who is reading the translation.
` Q Do you know if any of those translations
`have been challenged before?
` A Not to the best of my knowledge.
` Q When did you first start translating
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`patents and patent-related documentation from
`French into English?
` A I started translating from French into
`English in second half of 2002. Probably didn't
`translate a document until around 2004 or 2005.
` Q Do you translate other types of documents
`that are not patent-related?
` A Yes, I do.
` Q What percentage of your work is not
`patent-related?
` A It varies over the -- over the course of
`the years. Currently I would estimate that about
`half of my translation work is not patent-related.
` Q And you said you were an independent
`translator.
` Is that right?
` A Yes.
` Q And what do you mean by "independent
`translator"?
` A I'm not a full-time employee of any
`employer. My work is sent to me, or I receive
`work on a project-by-project basis.
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`Transcript of Bruce D. Popp, Ph.D.
`Conducted on June 28, 2021
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`24
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` Q But you still get most of that work from
`agencies?
` A That's right. But I'm not an employee of
`those agencies.
` Q Did you do any translation before being
`an independent translator as a profession?
` A Not as --
` Q Let me take that question back just to
`rephrase, to make sure it was clear.
` Did you do any translation for a
`profession before being an independent translator?
` A I did not.
` Q Do you have another translator review
`your translations?
` A For some of the agencies I work for, it
`is standard procedure that they have another
`translator review my translations. I do, with
`limited exceptions on specific request -- sorry.
`Except for limited situations on specific
`requests, I do not have another person, either
`translator or an editor, review my work.
` Q So your typical practice is not have a
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`translator review your work.
` Is that right?
` A I do not have a translator that I have
`engaged review my work. The agencies as a matter
`of their practice may have another translator
`review my work.
` Q Got it.
` Did you have a translator review your
`translation in this case?
` A I did not.
` Q Why not?
` A It's my normal procedure to not have
`someone review my work.
` Q What made you decide to proceed with
`translating as a profession?
` A I had been working in the telecom
`industry at the time of the dot-com meltdown. I
`was working for a company that entered bankruptcy
`and laid off about 20 percent of their staff,
`including me. And I was looking for something
`else I could do to earn a living.
` Q What's your standard rate for
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`translating?
` A It depends upon whether it's going
`through an agency or a direct client. It depends
`upon -- you said for translation. It depends from
`client to client.
` Q What's your standard rate when it's not
`through an agency?
` A When it's not through an agency and it is
`specifically translation, my standard rate is 25
`cents a word.
` Q Were you paid that rate in this case?
` A For preparing the translation, I was paid
`that rate.
` Q And what about, what's your standard rate
`for other time spent on a matter not translating?
` A Well, when it is not an expert witness,
`when it is through an agency, my standard rate is
`about $60 an hour.
` Q And when you say "expert witness," what
`do you mean by that?
` A I mean when I'm asked to prepare a
`declaration that will be filed in -- well, in a
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`court case, with the patent office, for the Trial
`and Appeal Board.
` Q And is that expertise still focused on
`the translation?
` A Yes, it is.
` Q Is that your rate that you are being paid
`for this case?
` A I haven't quoted a rate for my expert
`translation. My expert witness rate, the rate of
`$60 an hour was for agencies for editing and other
`linguistic work.
` Q So what is your rate, your expert witness
`rate?
` A My expert witness rate when I'm not under
`oath is $250 an hour.
` Q And what's your rate when you are under
`oath?
` A $325 an hour.
` Q Were you paid $250 an hour for your time
`on this case when you were not translating?
` A When I was not translating, yes, I was
`paid -- or am being paid $250 an hour.
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` Q And during your deposition today, are you
`being paid $325 an hour? Is that correct?
` A Yes, it is.
` Q Is translating your full-time job right
`now?
` A I have a parallel career in history of
`physics.
` Q What do you do in the history of physics?
` A I've done several things. I started by
`translating a book by Henri Poincaré. And
`currently I have a second book under contract
`concerning the participants in the First Solvay
`Conference in Physics.
` Q How many hours a week do you typically
`spend translating?
` A It varies greatly. That's one of the
`things about being an independent. It generally
`is not more than 30 hours a week.
` Q About how many documents do you translate
`each year?
` A I don't know. I have over the last 17
`years translated about 2,000 documents.
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`29
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` Q Do you also translate documents from
`English into French?
` A Yeah, but very rarely.
` Q Do you charge the same rates for that
`translation?
` A Most of the work that I've done from
`French into English has been pro bono. On the
`instances where I've been paid, I have charged the
`same rate.
` Q You don't have a degree in French.
` Correct?
` A That is correct.
` Q To your knowledge, has a court or other
`tribunal ever found any part of a translation that
`you've provided to be inaccurate?
` A I don't know of a court or tribunal
`finding any part of my translation inaccurate.
` Q What was your process for translating
`Rabbe in this case?
` A My standard process for translating a
`patent is to do OCR, optical character
`recognition, to prepare an editable version in a
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`Word document of the source patent in French.
` I then have what is referred to as a
`translation environment, Trados Studio, that's
`T-R-A-D-O-S Studio. It's the 2017 version. It
`allows me to have on the screen sentence by
`sentence the French source on one side, my
`translation on the other.
` Typically I go through and translate the
`patent from the beginning of the specifications to
`the beginning of the claims. I then go back and
`edit that translation myself. And having done
`that, then I go and translate the claims,
`referring to the previously edited translation for
`any material that's repeated in the claims that I
`already translated in the -- the main part of the
`specification.
` Then possible I let it sit for a while,
`especially at least overnight, before final
`review.
` Q And that was the process you followed for
`the Rabbe translation?
` A Yes; except I had a longer time than
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`unusual between when I did the translation and
`when I did the editing.
` Q How much time did you have between the
`translation and the editing in this case?
` A I think it was several days.
` Q So going back a step. How did you get
`the French Rabbe document?
` A It was provided to me by Mr. Wille.
` Q Was it provided as Exhibit 1005 from this
`case?
` A I don't think it was marked as an exhibit
`at the time I received it.
` Q Did it include Mr. Dawson's translation?
` A I did not see Mr. Dawson's translation
`until I completed my own translation.
` Q So you finished your own translation,
`including the editing, before reviewing Mr.
`Dawson's translation.
` Is that right?
` A Yes, that's correct. I had done my
`translation, allowed it to sit for a while so it
`was no longer fresh in my memory, I did the
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`editing. I submitted it to Mr. Wille. And then
`after that I first looked at Mr. Dawson's
`translation.
` Q Did you make any changes after looking at
`Mr. Dawson's translation?
` A I did not, to the best of my
`recollection.
` Q And when you received the Rabbe document
`from Mr. Wille, what were you asked to do?
` A I -- well, there was discussion about my
`willingness to provide --
` MR. WILLE: So -- so I'm going to
`instruct the witness not to answer, to the extent
`that it involves discussions with counsel.
`Because we have an agreement that the federal
`rules apply here, and discussions with counsel are
`not discoverable. So I think that goes to the
`instructions as well.
` Q Dr. Popp, are you going to not answer
`that question?
` A I'm not going to answer the question.
` Q Were you asked to review Mr. Dawson's
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`translation?
` A Yes, I was.
` Q And what was your task with respect to
`that review?
` A My task was to identify areas where we
`did not agree on the translation.
` Q Were there any specific areas that you
`focused on?
` A Yes. And that's reflected in my
`declaration.
` Q Were there any other areas that are not
`in your declaration that you focused on?
` A I think that would involve discussion
`between Mr. Wille and I.
` Q How many iterations to your translation
`were there?
` A Once I had done the editing and sent my
`translation to Mr. Wille, there were no further
`iterations.
` Q How many iterations did you have before
`sending it to Mr. Wille?
` A I'm not sure what you mean by an
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`iteration in that context.
` As I stated, I edited the document, I
`provided a translation -- or I did for my own use
`a translation of only part of the document. So
`I'm not quite sure how to count iterations.
` Q Did you complete the translation of Rabbe
`in one sitting?
` A No, I did not.
` Q Over how many days did you do the
`translation before you edited?
` A Oh. With that clarification, making a
`distinction between the translating and the
`self-editing, I did the translation up to the
`beginning of the claims in one day, and I did a
`first editing of that translation the following
`day after a night's sleep. And then I translated
`the claims on the second day. And then I put
`aside that for several days, maybe five, before
`going back to it and doing another editing.
` Q And did you do the editing over one day?
` A Yes. I mean, I don't recall
`specifically. I may have come back to it and done
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`35
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`yet another pass of editing afterwards on a
`different day. I don't recall specifically.
` Q When were you asked to review
`Mr. Dawson's translation?
` A I don't remember the exact date.
` Q Was it after you had finished
`translating?
` A Yes. I was asked to review Mr. Dawson's
`translation after I had delivered my translation
`to Mr. Wille.
` Q Did you know about Mr. Dawson's
`translation before you translated Rabbe?
` A At the time I started translating the
`Rabbe patent, I understood there was a previous
`translation.
` Q How long after you finished your editing
`did you review Mr. Dawson's translation?
` A I don't recall specifically. It may have
`been more than one week.
` Q And did anybody provide any input to your
`translation?
` MR. WILLE: Objection to the form.
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` A I did not discuss my translation with
`anybody besides Mr. Wille.
` Q Did anybody suggest any changes to your
`translation?
` A I did not discuss my translation with
`anyone besides Mr. Wille.
`
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