In the Matter Of:
`
`BROADBANDITV vs
`
`AT&T SERVICES
`
`MILTON DIAZ PEREZ
`
`June 03, 2021
`
`IPR2020-01267
`
`DISH Ex. 1068, p. 1
`DISH v. BBiTV
`
`DISH Ex. 1068, p. 1
` DISH v. BBiTV
` IPR2020-01267
`
`
`
`BROADBANDITV vs
`
`AT&T SERVICES
`
`MILTON DIAZ PEREZ
`
`June 03, 2021
`
`IPR2020-01267
`
`DISH Ex. 1068, p. 1
`DISH v. BBiTV
`
`DISH Ex. 1068, p. 1
` DISH v. BBiTV
` IPR2020-01267
`
`
`
`202
`
`· · · · · · · · · · · · · · · ·VOLUME 2
`· · · · · · · · · · · · · · · ·PAGES:· 202-345
`· · · · · · · · · · · · · · · ·EXHIBITS:· See Index
`· · · · IN THE UNITED STATES DISTRICT COURT
`· · · · ·FOR THE WESTERN DISTRICT OF TEXAS
`· · · · · · · · · AUSTIN DIVISION
`____________________________)
`· · · · · · · · · · · · · · )
`BROADBAND iTV, INC.,· · · · )
`· · · · · · · · · · · · · · )
`· · · · Plaintiff,· · · · · )
`· · · · · · · · · · · · · · ) Case No.
`· ·v.· · · · · · · · · · · ·) 1:20-cv-717-ADA
`· · · · · · · · · · · · · · )
`AT&T SERVICES, INC., and· · )
`AT&T COMMUNICATIONS, LLC,· ·)
`· · · · · · · · · · · · · · )
`· · · · Defendants.· · · · ·)
`____________________________)
`· · · · · · · · · · · · · · )
`BROADBAND iTV, INC.,· · · · )
`· · · · · · · · · · · · · · )
`· · · · Plaintiff,· · · · · )
`· · · · · · · · · · · · · · )
`· ·v.· · · · · · · · · · · ·)
`· · · · · · · · · · · · · · )
`DIRECTV, LLC,· · · · · · · ·)
`· · · · · · · · · · · · · · )
`· · · · Defendant.· · · · · )
`____________________________
`
`· · CONTINUED VIDEOTAPED 30(b)(6) DEPOSITION of
`· · · · · · · ·BROADBAND iTV, INC.,
`· · · · · · Taken by MILTON DIAZ PEREZ
`· · · · ·- CONDUCTED BY VIDEOCONFERENCE -
`· · · · · · · Thursday, June 3, 2021
`· · · · ·10:06 a.m. Central Daylight Time
`
`· · · · · · ·Michelle Keegan, RMR, CRR
`· · · · · · · · · · · Lexitas
`· · · · ·508-478-9795 ~ 508-478.0595 (Fax)
`· · · · · · · ·www.LexitasLegal.com
`
`DISH Ex. 1068, p. 2
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`203
`
`A P P E A R A N C E S:
`
`· FEINBERG DAY KRAMER ALBERTI LIM TONKOVICH &
`· BELLOLI LLP
`· By:· David Alberti, Esq.
`· By:· Robert F. Kramer, Esq.
`· By:· Robert Y. Xie, Esq.
`· By:· Jeremiah A. Armstrong, Esq.
`· 577 Airport Boulevard, Suite 250
`· Burlingame, California 94010
`· Phone:· (650) 825-4300
`· Email:· dalberti@feinday.com
`· Email:· rkramer@feinday.com
`· Email:· rxie@feinday.com
`· Email:· jarmstrong@feinday.com
`· Counsel for Plaintiff and the Witness
`
`· BAKER BOTTS L.L.P.
`· By:· Roger J. Fulghum, Esq.
`· By:· Emily M. Felvey, Esq.
`· By:· Morgan G. Mayne, Esq.
`· 910 Louisiana Street
`· Houston, Texas 77002-4995
`· Phone:· (713) 229-1234
`· Email:· roger.fulghum@bakerbotts.com
`· Email:· emily.felvey@bakerbotts.com
`· Email:· morgan.mayne@bakerbotts.com
`· Counsel for AT&T Defendants
`
`· ORRICK, HERRINGTON & SUTCLIFFE LLP
`· By:· Alyssa Caridis, Esq.
`· 777 South Figueroa Street, Suite 3200
`· Los Angeles, California 90017-5855
`· Phone:· (213) 629-2020
`· Email:· acaridis@orrick.com
`· Counsel for Dish
`
`Also Present:
`· Rick Christian, Videographer
`· Jacqueline Chan
`
`DISH Ex. 1068, p. 3
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`
`· · · · · · · · · · ·I N D E X
`Continued Videotaped Deposition of:· · · · · ·Page
`MILTON DIAZ PEREZ
`· ·By Mr. Fulghum· · · · · · · · · · · · · · · 206
`
`204
`
`· · · · · · · · · E X H I B I T S
`No.· · · · · · · · · · · · · · · · · · · · · ·Page
`Exhibit 14· 5/10/2021 Declaration of Milton· · 208
`· · · · · · Diaz Perez, Bates-numbered
`· · · · · · BBITV189128 through -189210
`Exhibit 15· 6/15/2015 letter from Dyer· · · · ·283
`· · · · · · Matlock to Larry D. Hunter, one
`· · · · · · page without Bates numbering
`Exhibit 16· 3/28/2016 letter from Kimberly· · ·299
`· · · · · · Chotkowski to Ronald Coslick,
`· · · · · · Bates-numbered BBITV117677
`Exhibit 17· 7/15/2004 e-mail from LKMChong· · ·327
`· · · · · · to Milton Diaz, subject "US
`· · · · · · Patent Application," without
`· · · · · · attachment, Bates-numbered
`· · · · · · BBITV189408
`Exhibit 18· Redlined document with first· · · ·336
`· · · · · · page describing "System and
`· · · · · · Method for Managing, Converting
`· · · · · · and Displaying Video Content on
`· · · · · · a Video-on-Demand Platform,
`· · · · · · Including Ads Used for
`· · · · · · Drill-Down Navigation and
`· · · · · · Consumer-Generated Classified
`· · · · · · Ads," Bates-numbered BBITV189409
`· · · · · · through -189450
`
`DISH Ex. 1068, p. 4
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`205
`
`· · · · · · · P R O C E E D I N G S
`· · · ·THE VIDEOGRAPHER:· Good morning.· We are
`now on the record.· My name is Rick Christian.
`I'm a videographer retained by Lexitas.
`· · · ·Today's date is June 3rd, 2021, and the
`video time is 10:06 a.m. Central.· This deposition
`is in the matter of Broadband iTV, Incorporated,
`versus AT&T Services, Incorporated, et al., and
`Broadband iTV, Incorporated, versus DIRECTV, LLC,
`and Broadband iTV, Incorporated, versus Dish
`Network.
`· · · ·This is Day 2 of the deposition of Milton
`Diaz Perez.
`· · · ·Would counsel state their appearance for
`the record.
`· · · ·MR. FULGHUM:· Yes.· Roger Fulghum for the
`AT&T defendants.· And with me on the line is
`Morgan Mayne and Emily Felvey, also of Baker
`Botts.
`· · · ·MS. CARIDIS:· Alyssa Caridis of Orrick,
`Herrington & Sutcliffe here on behalf of Dish.
`· · · ·MR. ALBERTI:· David Alberti for BBiTV.
`With me is Robert Kramer, Robert Xie, and Jeremiah
`Armstrong.
`
`DISH Ex. 1068, p. 5
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`206
`
`· · · ·THE VIDEOGRAPHER:· All right.· The court
`reporter is Michelle Keegan and will now swear in
`the witness.
`· · · · · · · · MILTON DIAZ PEREZ,
`having been satisfactorily identified and duly
`sworn by the Notary Public, was examined and
`testified as follows:
`· · EXAMINATION BY COUNSEL FOR AT&T DEFENDANTS
`BY MR. FULGHUM:
`· · Q. Good morning, Mr. Diaz.
`· · A. Good morning.
`· · Q. This is a remote deposition.· Correct?
`· · A. It is.
`· · Q. I'm not in the same room with you.
`Correct?
`· · A. You are not.
`· · Q. Who is in the room with you?
`· · A. Attorneys from Feinberg Day.
`· · Q. And what are their names?
`· · A. David Alberti, Jeremiah Armstrong, Robert
`Xie.· Correct?
`· · · ·And, Robert, I'm blanking on your last
`name.· Kramer.· And Robert Kramer.
`· · Q. Okay.· Anybody else?
`
`DISH Ex. 1068, p. 6
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`
`· · A. No.
`· · Q. So yesterday when we left off, we were
`talking about some of the documents that you've
`identified to the Patent Office.· And one document
`we talked about was this document identified as
`Exhibit Number 13.
`· · · ·And this is what you told the Patent
`Office was your February presentation.· Is that
`correct?
`· · A. That is correct.
`· · Q. Also on the screen now is Exhibit 11.· And
`this is another document that you identified to
`the Patent Office.· And this is a document that
`you've called your April development document.· Is
`that correct?
`· · A. That is correct.
`· · Q. And another document that you've
`identified to the Patent Office is on the screen
`and labeled as Exhibit 12.· And this is what
`you've referred to in your declaration at the
`Patent Office as the March 2004 draft.· Is that
`correct?
`· · A. That is correct.
`· · Q. I've marked as the next exhibit Exhibit
`
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`
`Number 14, which I've put on the screen.
`· · · ·(Exhibit 14 marked for identification)
`· · Q. Do you recognize Exhibit Number 14 as a
`copy of your declaration?
`· · A. I have that declaration right here with me
`as well.
`· · Q. Do you have a paper copy?
`· · A. I have a paper copy.
`· · Q. What other paper copy documents do you
`have in front of you today, Mr. Diaz?
`· · A. Counsel provided copies of the patents in
`suit yesterday.· I have a copy of this
`declaration, and I have a copy of the exhibits.
`· · · ·I also have a copy of our response to the
`AT&T interrogatories, and I have a patent owner
`response in the IPR on the '026 patent.
`· · Q. Okay.
`· · A. That's the extent of it.
`· · Q. This is the second day of your deposition.
`Correct?
`· · A. That is correct.
`· · Q. What did you do after the first day to
`prepare for the second day?
`· · A. I got some rest.· But I also reviewed this
`
`DISH Ex. 1068, p. 8
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`209
`
`declaration.
`· · Q. Did you review any other documents?
`· · A. I reviewed this declaration.
`· · Q. I'm asking you, did you review any other
`documents other than the declaration?
`· · A. I looked at some of the patents in suit.
`· · Q. Anything else?
`· · A. No.
`· · Q. Did you talk to your attorneys?
`· · A. Yes, I did talk to my attorneys.
`· · Q. Did you talk to your attorneys about the
`substance of your testimony yesterday?
`· · A. We talked about procedural issues.
`· · Q. You didn't talk about the substance?
`· · A. No.
`· · Q. Let me turn your attention to Paragraph 10
`of your declaration.· And let me read into the
`record that the declaration begins at Bates Number
`BBITV189128 and concludes at Bates Number
`BBITV189210.
`· · · ·And I want to pick up with Paragraph 10.
`Do you see Paragraph 10?
`· · A. I'm also opening it up on my copy.
`· · Q. Okay.· That's fine.· Thank you.
`
`DISH Ex. 1068, p. 9
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`
`· · A. You're welcome.
`· · · ·Yes, I see Paragraph 10.
`· · Q. Paragraph 10 reads,
`
`210
`
`· · · ·Is that a true statement?
`· · A. That is correct.
`· · Q. The next sentence reads,
`
`· · · ·Is that a true statement?
`· · A. Exhibit 2070 is the April development doc.
`Correct?
`· · Q. Yes.
`· · A. Yes.
`· · Q. The next sentence reads,
`
`· · · ·Is that a true statement?
`· · A. Yes.
`
`DISH Ex. 1068, p. 10
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`211
`
`· · Q. In that sentence, what are the
` that you're referring to?
`· · A. I believe we are referring to the new
`promo -- well, there's the replacement promo
`product, the new promo product.· And we were, as
`we discussed yesterday, developing a commercial --
`sorry -- a consumer product.
`· · Q. Is the consumer product the same as the
`community product, as it's sometimes called?
`· · A. Yes.
`· · Q. Does the April development document
`describe your invention?
`· · A. Yes, in combination with the other
`documents put in the declaration.
`· · Q. Do you see the April development document
`on the screen?
`· · A. I do.
`· · Q. Do you have a copy of it in front of you?
`· · A. I do not.· One second, please.· I'm just
`trying to clarify.
`· · · ·We're just getting that exhibit.· One
`second, please.
`· · · ·I do have it in front of me now.
`· · Q. Do you notice that there are editing marks
`
`DISH Ex. 1068, p. 11
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`in the document that show changes to the document
`versus a previous version?
`· · A. I'm just looking for it.
`· · · ·Yes.
`· · Q. And do you refer to those editing marks as
`"track changes"?· Is that the vernacular that you
`use to describe those?
`· · A. I believe that's Microsoft's terminology
`for it.
`· · Q. What do you call it?· I just want to use
`terminology that you're familiar with.
`· · A. We can say "track changes."
`· · Q. Were you the author of the April
`development document?
`· · A. The April development document reflects my
`inventions.· And I laid out the -- I laid out the
`framework for the specification, I believe.· So
`I'm an author in that sense and I contributed to
`some of the text and writing and the design of the
`figures.
`· · Q. Would you also say that the document was
`authored at your direction?
`· · A. In part, yes.
`· · Q. Well, that's what you told the patent
`
`DISH Ex. 1068, p. 12
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`213
`
`office.· Right?
`· · A. Yes.· That's correct.
`· · Q. Okay.· So do you stand by the declaration
`that you filed with the patent office?
`· · A. I do.
`· · Q. Okay.· There's nothing in that declaration
`that you know of that is incorrect?
`· · A. That is -- yes.
`· · Q. And who was the person who actually typed
`in this information?
`· · · ·MR. ALBERTI:· Objection, vague.
`· · Q. Who is the person who prepared the
`document itself?
`· · · ·MR. ALBERTI:· Objection, vague, as to the
`document.
`· · A. Can you clarify, please?
`· · Q. Can we go to the last page of the
`document.· And I have it on the screen.· There's a
`"Revision History."· Do you see that?
`· · A. I do.
`· · Q. Is this accurate?
`· · A. Yes.
`· · Q. Does this revision history note that the
`document was created by Nicole Nestel?
`
`DISH Ex. 1068, p. 13
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`
`· · A. It does.
`· · Q. And it was modified on April 26, 2004, by
`Nicole Nestel?
`· · A. Yes.
`· · Q. Would this reflect Nicole Nestel was the
`person who prepared the document?
`· · A. Under my direction, yes.
`· · Q. Ms. Nestel is the one who actually typed
`the keys on the keyboard that resulted in this
`document being created.· Is that right?
`· · A. The revision history states that she
`created it.
`· · Q. Let me ask you this:· Did Ms. Nestel
`actually type the keys on the keyboard to create
`the document or did you do that?
`· · · ·MR. ALBERTI:· I ask that the witness be
`allowed to finish his prior answer and then you
`can go on and answer --
`· · · ·MR. FULGHUM:· I cannot hear Mr. Alberti.
`· · · ·Can you say that again, Mr. Alberti?
`· · · ·MR. ALBERTI:· You cut off the witness.
`And I was just asking that he complete his answer
`and then answer your next question.
`· · · ·MR. FULGHUM:· Okay.· My apologies.
`
`DISH Ex. 1068, p. 14
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`215
`
`· · Q. Let me ask a fresh question so we can get
`a fresh start.
`· · · ·As between you and Ms. Nestel, who typed
`the keys on the keyboard to create this document?
`· · A. I did not directly observe Nicole Nestel
`typing into the document.
`· · Q. Did you type any keys on the keyboard to
`create this document?
`· · A. I don't recall.
`· · Q. You have no memory of doing that?
`· · A. I don't recall.
`· · Q. Do you know that someone at some point in
`the past typed keys on a keyboard to create this
`document?
`· · A. I assume, yes.
`· · Q. It got created somehow.· Right?
`· · A. It did.
`· · Q. But do you remember the circumstances of
`its creation?
`· · A. As stated in the declaration, it was
`created under my direction and supervision.
`· · Q. But you can't say who typed -- you cannot
`say who typed the keys on the keyboard that
`created this document, can you?
`
`DISH Ex. 1068, p. 15
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`216
`
`· · A. The document states that Nicole created
`the document.· That's what we have.
`· · Q. Would it be fair to say that Nicole Nestel
`is the author of the document?
`· · · ·MR. ALBERTI:· Objection to the extent that
`mischaracterizes prior testimony.
`· · A. Nicole created the document under my
`supervision and direction, reflecting my
`inventions.
`· · Q. Are you trying to minimize Ms. Nestel's
`contribution to this document?
`· · · ·MR. ALBERTI:· Objection, argumentative.
`· · Q. I'm just asking, are you trying to
`minimize Ms. Nestel's contribution to this
`document?
`· · · ·MR. ALBERTI:· Same objections.
`· · A. I'm only trying to answer your questions
`as I understand them.
`· · Q. Would it be fair to say that Ms. Nestel
`was an author of this document?
`· · · ·MR. ALBERTI:· Same objections.
`· · A. The revision history indicated that she
`created the document.
`· · Q. Would you agree that you and Ms. Nestel
`
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`
`are coauthors of this document?
`· · · ·MR. ALBERTI:· Objection, argumentative.
`· · A. Can you clarify?· What do you mean by
`"author"?
`· · Q. I want you to use the definition of
`"author" with which you are most comfortable in
`answering the question.
`· · A. This document was created by myself and my
`team, as is I believe stated in the declaration,
`and was performed under my supervision and
`direction.· And it reflects my inventions.
`· · · ·So that is the history of this document.
`· · Q. Do you believe that you invented Netflix?
`· · · ·MR. ALBERTI:· Objection, vague.
`· · A. I'm sorry.· I don't understand the
`question.
`· · Q. Do you believe that you invented the
`Netflix service?
`· · A. Netflix is a particular company.· Netflix
`uses my technology and inventions for their
`product in the market.
`· · Q. Do you believe that you invented the
`technology that Netflix uses?
`· · · ·MR. ALBERTI:· Objection, vague.
`
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`
`· · A. I believe Netflix is using my technology.
`· · Q. Do you believe that you invented the
`technology that Amazon Prime uses?
`· · A. With regards to their VOD service, I
`believe that Amazon Prime is using my technology.
`· · Q. Do you believe that you invented the
`technology that U-verse uses for its
`video-on-demand service?
`· · A. I believe that U-verse uses my technology
`as has been described in the complaint filed
`against them.
`· · Q. Do you believe that you invented the
`technology that DIRECTV uses for DIRECTV's
`video-on-demand service?
`· · A. I believe DIRECTV uses my technology as
`described in the complaint filed against them.
`· · Q. Do you believe that you invented the
`technology that Dish Network uses for the Dish
`video-on-demand service?
`· · A. I believe Dish uses my technology as
`described in the complaint that was filed against
`them.
`· · Q. Would the same be true of Hulu?
`· · A. I believe Hulu is using our technology.
`
`DISH Ex. 1068, p. 18
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`
`· · Q. Let me draw your attention, Mr. Diaz, to
`what is highlighted on the screen.· Do you see the
`box I've put on the screen?
`· · A. I do.
`· · Q. And do you see there's a sentence that
`reads,
`
`· Do you see that?
`
`· · A. I do.
`· · Q. Was that a true statement as of
`April 29th, 2004?
`· · A. One moment.· I would like to read the
`paragraph.
`· · · ·I'm sorry.· What was your question again?
`· · Q. Was that a true statement as of
`April 29th, 2004?
`· · A. I don't believe that Navic product -- I
`don't believe there was a Navic product live to
`the consumers on April 29th, 2004.
`· · Q. So this statement is not correct?
`· · A. Well, the statement says
`
`· · Q. That's not accurate, is it?
`
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`
`· · A. The second quarter goes until -- through
`June.
`· · Q. Is it a true statement or not?
`· · A. I don't recall.
`· · Q. You can't remember?
`· · A. I don't recall.
`· · Q. I've put your declaration back on the
`screen.· This is Exhibit 14.· And you'll notice
`we're on the 71st page of your declaration.· Do
`you see that?
`· · A. I do.
`· · Q. There's a sentence that begins,
`
` Is that true?
`
`· · A. That is true.
`· · Q. What were the products that you were
`referring to in that sentence?
`· · A. This was a consumer classified product.
`· · Q. Okay.· But it's products, plural.· Were
`you referring there to one product or more than
`one product?
`· · A. Well, it states
` We consolidated and launched the
`
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`
`consumer classified product.
`· · Q. Did you consolidate the advertiser product
`into the consumer classified product?
`· · A. They were consolidated as a project, but
`we launched the consumer classified.
`· · Q. When were they consolidated into one
`project?
`· · A. I don't recall.
`· · Q. Were they consolidated into one project on
`or before July 30th, 2004?
`· · A. I'm sorry.· What was the date again?
`· · Q. July 30th, 2004, which is the filing date
`of your 2004 application.
`· · A. I don't recall.
`· · Q. But you do recall that a single product
`was eventually launched.· Correct?
`· · A. A single system, yes.
`· · Q. And who were the customers for that
`product?
`· · A. It was for general consumers, general
`population.
`· · Q. Were any cable systems customers of that
`product?
`· · A. My apologies.· Yes.· Time Warner Cable,
`
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`
`Oceanic.
`· · Q. What did you call that consolidated
`product when it launched?
`· · A. We launched the Hawaii TV Classifieds
`product.
`· · Q. Was that the commercial name for it?
`· · A. That was.
`· · Q. And when was Hawaii TV Classifieds launch?
`· · A. I'm not sure of the exact date.
`· · Q. Can you give me a year?
`· · A. I believe it finally went live in 2005.
`· · Q. Do you recall if it went live in the first
`half of 2005 or the second half?
`· · A. I believe it was in the first half.
`· · Q. Did Hawaii TV Classifieds support
`on-demand movies?
`· · A. No.
`· · Q. Did Hawaii TV Classifieds support
`on-demand TV shows?
`· · A. No.
`· · Q. Did Hawaii TV Classifieds support a video
`content provider uploading video content in the
`form of a movie?
`· · A. That was in the form of a movie?
`
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`· · Q. Yes.
`· · A. No.
`· · Q. Did Hawaii TV Classifieds support a video
`content provider uploading video content in the
`form of an on-demand TV show?
`· · A. No.
`· · Q. Did Hawaii TV Classifieds include a
`web-based content management system?
`· · A. Yes.
`· · Q. Did Hawaii TV Classifieds support the
`ability of a video content provider to upload
`video content to a web-based content management
`system?
`· · A. It supported the upload of images so that
`a former video -- so the user could upload images
`to the content --
`· · Q. Let me ask you, you told the patent
`office,
`
`· · A. Correct.
`· · Q. Is that correct?
`· · A. That is correct.
`· · Q. Could Hawaii TV Classifieds support the
`uploading of video by a video content provider to
`
`DISH Ex. 1068, p. 23
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`a web-based content management system?
`· · A. No.
`· · Q. Could Hawaii TV Classifieds support the
`uploading of video along with metadata to a
`web-based content management system?
`· · A. You said video with?
`· · Q. I did.
`· · · ·MR. ALBERTI:· Okay.· Can we get the
`question back, please?
`· · Q. Did Hawaii TV Classifieds support the
`uploading of video along with metadata to a
`web-based content management system?
`· · A. No.
`· · Q. Did Hawaii TV Classifieds support the
`placement of video content in a content menu
`according to metadata that was designated by a
`video content provider?
`· · A. No.
`· · Q. Did Broadband iTV ever have a successful
`test of a product that could upload video content?
`· · A. Can you clarify?
`· · Q. No, I cannot.· That question is pretty
`simple.· Can you answer it?
`· · A. I'm sorry.· Can you clarify the time
`
`DISH Ex. 1068, p. 24
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`frame?
`· · Q. Yeah.· I used the term "ever."· So let me
`ask it again.
`· · · ·Did Broadband iTV ever have a successful
`test of a product that could upload video content?
`· · A. It is possible that we had a successful
`test.
`· · Q. When was your successful test?· When did
`that occur?
`· · A. I do not recall.
`· · Q. Can you recall any successful test at
`Broadband iTV of a product that could upload video
`content?
`· · A. I cannot recall, but it is possible for a
`test.
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that could upload video
`content in the form of a movie?
`· · A. I do not recall, but it is possible.
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that could upload
`content in the form of an on-demand TV show?
`· · A. I do not recall, but it is possible.
`· · Q. Do you recall any successful test at
`
`DISH Ex. 1068, p. 25
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`Broadband iTV of a product that could upload video
`content to a web-based content management system?
`· · A. I'm sorry.· Could you repeat the question?
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that could upload video
`content to a web-based content management system?
`· · · ·MR. ALBERTI:· Objection, vague.
`· · A. I do not recall, but it is possible.
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that could upload video
`content along with metadata designated by a video
`content provider?
`· · A. I do not recall, but it is possible.
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that could place a
`video-on-demand title in a content menu according
`to metadata that was uploaded and designated by a
`video content provider?
`· · A. I do not recall, but it is possible.
`· · Q. You had problems with Navic in the second
`quarter of 2004.· Correct?
`· · A. We did.
`· · Q. What were your problems?
`· · A. They had trouble giving us the video
`
`DISH Ex. 1068, p. 26
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`capability we desired.
`· · Q. What did you understand Navic was to do
`with regard to video capability?· What were your
`expectations?
`· · A. Navic was to provide the ability to
`control the video from the consumer end.
`· · Q. Do you recall any successful test at
`Broadband iTV of a product that practiced your
`invention?
`· · · ·MR. ALBERTI:· Objection, vague.
`· · A. Yes.
`· · Q. Okay.· Tell me about that test.· When did
`it occur?
`· · A. The testing of the Hawaii TV Classifieds
`platform.
`· · Q. Did the Hawaii TV Classifieds platform
`practice your invention?
`· · A. It does.
`· · Q. And how does it practice it if it cannot
`upload video content?
`· · A. I believe the specification does not limit
`it to video.
`· · Q. Are you drawing a distinction between
`video and images?
`
`DISH Ex. 1068, p. 27
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`· · A. I believe the specification says you can
`upload video, images, text, audio.· There may be
`others, other types of content.
`· · Q. Let me narrow this down to the asserted
`patents.· Are you familiar with the asserted
`patents in this case?
`· · A. I am.
`· · Q. Did Broadband iTV ever have a successful
`test of a product that embodied the inventions of
`the asserted patents?
`· · A. We were unable to launch a video-based
`product.
`· · Q. I understand that.· That wasn't my
`question.· Let me ask it again.
`· · · ·Did Broadband iTV ever have a successful
`test of a product that embodied the inventions of
`the asserted patents?
`· · A. Could you repeat your question?
`· · Q. Did Broadband iTV ever have a successful
`test of a product that embodied the inventions of
`the asserted patents?
`· · · ·MR. ALBERTI:· Objection to form.
`· · A. The specifications in the asserted patents
`support the upload of video, image, audio, text.
`
`DISH Ex. 1068, p. 28
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`
`They're based on the same invention.
`· · Q. So let me stop you there.· I'm not talking
`about specifications.· You understand the claims
`and the specification are different things?· Do
`you understand that?
`· · A. The claims are derived from the
`specifications.
`· · Q. So I'm asking you about the claimed
`inventions.· And when I say "claimed inventions,"
`I mean the claims of the asserted patents.· Do you
`understand that?
`· · A. Yes.
`· · Q. Did Broadband iTV ever have a successful
`test of a product that practiced any of the
`claimed inventions of the asserted patents?
`· · · ·MR. ALBERTI:· Objection to form.
`· · A. May I take a look at one of the claims?
`· · Q. Of course.
`· · A. I just want to check, please.· I've closed
`my declaration.
`· · · ·If you could repeat your question.
`· · Q. Did Broadband iTV ever have a successful
`test of a product that practiced any of the
`claimed inventions of the asserted patents?
`
`DISH Ex. 1068, p. 29
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`
`· · A. The claims, they call for generally video
`content.· So we supported the upload of images in
`the product that went live and text.
`· · Q. So let me ask the question again.· I don't
`think you answered it.
`· · · ·Did Broadband iTV ever have a successful
`test of a product that practiced any of the
`claimed inventions of the asserted patents?
`· · A. I do not recall, but it is possible.
`· · Q. What did Navic tell you that Navic would
`provide?· Strike that.
`· · · ·What did you expect Navic to provide?
`· · A. Generally, Navic provided a platform to be
`able to create applications that ran in the
`set-top box.· And their commitment was that those
`applications would support video controls.
`· · Q. And what happened?
`· · A. They provided the other functionalities
`that they had committed to, but they kept
`promising the delivery of the video-on-demand
`controls and they never delivered them.
`· · Q. What video-on-demand controls are you
`referring to in your answer?
`· · A. The ability to pause, play, rewind,
`
`DISH Ex. 1068, p. 30
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`
`fast-forward.
`· · Q. Navic never delivered a product that
`allowed for the play of a video-on-demand title?
`· · A. They never delivered to us those
`capabilities.
`· · · ·I'm going to correct one thing.· I'm not
`certain about the play.· The rewind, the
`fast-forward, and the pause are known as "trick
`modes."· And they didn't deliver the trick modes.
`I'm not certain about the play.
`· · Q. It's possible that Navic delivered play.
`Is that true?
`· · A. I don't recall.
`· · Q. Was Navic responsible for video delivery?
`· · A. Could you clarify that question, please?
`· · Q. Are you looking at the screen?· This is
`your declaration.
`· · A. Right.
`· · Q. You wrote "video delivery capability."· Do
`you see that?
`· · A. I do.
`· · Q. When you told the Patent Office about
`video delivery capability, what were you referring
`to?
`
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`· · A. I'm sorry.· Let me reread the sentence.
`· · · ·So I meant that video delivery to the
`consumer.
`· · Q. Was Navic responsible for the
`functionality for video delivery to the consumer?
`· · A. They were responsible for being able to
`use that -- being able to control that video at
`the consumer.
`· · Q. Did Navic provide the video delivery
`capability you expected?
`· · A. They were not responsible for video
`delivery.
`· · Q. Who was responsible for video delivery?
`· · A. That would have been the video-on-
`demand -- the video servers.
`· · Q. And who designed the video servers?
`· · A. I don't recall.
`· · Q. So to summarize, Navic was responsible for
`the applications that ran on the set-top box.· Is
`that correct?
`· · A. That is correct.
`· · Q. There was another third party that was
`responsible for video delivery to the set-top
`boxes.· Correct?
`
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`· · A. This is a capability, yes.
`· · Q. Who was that?
`· · A. I don't recall.
`· · Q. Was that In Demand?
`· · A. No.
`· · Q. Did In Demand have a role in the products
`that you were developing in the second quarter of
`2004?
`· · A. No.
`· · Q. Who was responsible for the video
`uploading functionality?
`· · A. I think your video has frozen.
`· · Q. Even so, who was responsible for the video
`uploading functionality?
`· · A. In which product?
`· · Q. The product that you were developing in
`the second quarter of 2004 that you state embodied
`your inventions.
`· · A. We were unable to launch that capability.
`· · Q. Who was responsible for it?· Who was
`responsible for developing it?· I know that you
`were unable to launch it.· I know it didn't work.
`Who was responsible for it?
`· · · ·MR. ALBERTI:· Objection to form.
`
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`· · A. I'm sorry.· I'm still not clear what
`you're asking.
`· · Q. Who was responsible for developing the
`video uploading functionality?
`· · A. There are two ends to uploading.· I'm not
`clear what end you're asking me to describe.
`· · Q. What are the two ends?· What are the two
`ends, Mr. Diaz?
`· · A. There's a source and there's a receiver.
`· · Q. Who was responsible for developing -- I'm
`sorry.· Were you finished?
`· · A. I am now.
`· · Q. My apologies.· Who was responsible for
`developing the source side of the upload
`functionality?
`· · A. This was a consumer-based product.· So
`actually, that capability would have been part of
`our web CMS.
`· · Q. And who was responsible for developing
`that?
`· · A. BBiTV was.
`· · Q. Did you engage Imageteq to perform the
`coding work on that project?
`· · A. We did.
`
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`· · Q. Who was responsible for the functionality
`on the receiver side of the video upload
`functionality?
`· · A. That also would be part of the web CMS.
`· · Q. And who was responsible?· I know it's part
`of the web CMS.· Who was responsible?
`· · A. BBiTV would have been responsible for
`that.
`· · Q. And did you engage Imageteq to perform the
`coding for that functionality?
`· · A. Imageteq built the web CMS.· Yes.
`· · Q. So can I summarize the different pieces of
`the system and who was involved in each?· And just
`tell me if I've got it wrong.· Okay?
`· · A. Very good.
`· · Q. Broadband iTV was responsible for the
`video upload functionality for both the source
`side and the receiver side.· Correct?
`· · A. For this platform.
`· · Q. And by "this platform," we're talking
`about the platforms that were being developed in
`the second quarter of 2004.· Is that fair?
`· · A. Yes.
`· · Q. For the platforms that were being
`
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`developed in the second quarter of 2004,
`Broadband iTV was responsible for the source side
`and the receiver side functionality for the video
`upload functionality.· Is that correct?
`· · A. I need to check one thing, please, in
`my -- with regards to Imageteq in my declaration,
`if I could.· Thank you.
`· · · ·Thank you.· I wanted to check dates.
`· · Q. So let
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