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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEALS BOARD
`
` -----------------------------:
`
` INTEL CORPORATION :
`
` Petitioner : Case No.
`
` vs. : IPR2020-01449
`
` FG SRC, LLC : Patent No. 7,149,867
`
` Patent Owner :
`
` -----------------------------:
`
` Remote Zoom Deposition of
`
` GORDON MACPHERSON
`
` Washington, D.C.
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` Monday, July 21, 2021
`
` 1:00 p.m.
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` Job No. PA-4669233
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` Pages 1 - 34
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` Reported by: Robert M. Jakupciak, RPR
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`Veritext Legal Solutions
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`Intel Exhibit 1040 - 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEALS BOARD
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` -----------------------------:
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` INTEL CORPORATION :
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` Petitioner : Case No.
`
` vs. : IPR2020-01449
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` FG SRC, LLC : Patent No. 7,149,867
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` Patent Owner :
`
` -----------------------------:
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` Remote Zoom Deposition of
`
` GORDON MACPHERSON
`
` Washington, D.C.
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` Monday, July 21, 2021
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` 1:00 p.m.
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` Job No. PA-4669233
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` Pages 1 - 34
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` Reported by: Robert M. Jakupciak, RPR
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`Intel Exhibit 1040 - 1
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`Page 2
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` Remote Zoom Deposition of GORDON
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` MACPHERSON, held at the offices of:
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` Veritext - Washington, D.C.
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` 1250 Eye Street, N.W.
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` Washington, D.D.
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` Pursuant to Notice, before Robert Michael
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` Jakupciak, RPR, a Notary Public in and for the
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` District of Columbia, when were present on behalf of
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` the respective parties:
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`Page 3
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` A P P E A R A N C E S
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` O n b e h a l f o f t h e P e t i t i o n e r :
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` B R I A N C . N A S H , E S Q U I R E
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` M A T T H E W W . H I N D M A N , E S Q U I R E
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` P i l l s b u r y W i n t h r o p S h a w P i t t m a n , L L P
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` 4 0 1 C o n g r e s s A v e n u e
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` S u i t e 1 7 0 0
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` A u s t i n , T e x a s 7 8 7 0 1 - 3 7 9 7
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` ( 5 1 2 ) 5 8 0 - 9 6 0 0
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` b r i a n . n a s h @ p i l l s b u r y l a w . c o m
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` O n b e h a l f o f t h e P a t e n t O w n e r :
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` H E N N I N G S C H M I D T , E S Q U I R E
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` D i m u r o G i n s b e r g , P . C .
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` 1 1 0 1 K i n g S t r e e t
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` S u i t e 6 1 0
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` A l e x a n d r i a , V i r g i n i a 2 2 3 1 4
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` A P P E A R A N C E S
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` O n b e h a l f o f t h e W i t n e s s :
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` M I C H A E L B R E Y , E S Q U I R E
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` D o r s e y & W h i t n e y , L L P
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` 5 0 S o u t h S i x t h S t r e e t
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` b r e y . m i c h a e l @ d o r s e y . c o m
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` A L S O P R E S E N T : G e m m a S u h
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` C O N T E N T S
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` THE WITNESS: GORDON MACPHERSON
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` EXAMINATION PAGE
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` By Mr. Schmidt 6
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` By Mr. Nash 18
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` By Mr. Schmidt 27
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` P R O C E E D I N G S
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` Whereupon,
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` GORDON MACPHERSON,
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` called as a witness, and having been first duly
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` sworn, was examined and testified as follows:
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` EXAMINATION BY COUNSEL FOR PATENT OWNER
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` BY MR. SCHMIDT:
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` Q Good afternoon, Mr. MacPherson. Thanks
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` for your time today. I appreciate that this is not,
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` you know, the way you probably prefer to spend your
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` time, so we will try to keep it succinct and to the
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` point.
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` A Okay.
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` Q Have you been deposed before?
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` A No.
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` Q Okay. Well, I'll give you the normal
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` rundown then just to give you an idea of what to
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` expect. This will be pretty straightforward and
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` limited to the substance of your declaration issued
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` in this case.
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` We try to ask questions to clarify what is
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` in the declaration. And it's important, especially
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` virtually, that we speak one at a time and clearly
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` so that the court reporter is able to hear us and
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` take a clean record. Do you understand?
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` A Yes.
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` Q Great. And your responses, it's, you
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` know, for the same reason important that your
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` responses are verbal as opposed to nodding or
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` shaking your head, because the court reporter is
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` likely watching his typewriter.
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` A Okay.
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` Q Great. If I am not clear in a question,
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` please just let me know and I'll be happy to repeat
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` it or rephrase it, and if you have any questions, I
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` will try to be clear.
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` A Okay. Thank you.
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` Q Yeah. Okay. So could you please state
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` your name and title and organization for the record?
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` A I'm Gordon MacPherson and I work at IEEE.
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` I'm the Director of Board Governance and
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` Intellectual Property Operations in IEEE's
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` Publications Organizational Unit.
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` Q How long have you worked at the IEEE?
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` A About 13 and a half years.
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` Q So it's 2021. Approximately from 2008?
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` A From November 2007.
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` Q Okay. And that's when you very first
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` joined IEEE?
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` A Yes. I began working at IEEE in November
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` 2007.
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` Q Did you have any contact with the IEEE
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` before then as a member or something?
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` A No. Not as a member. The only contact I
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` had with IEEE prior to that was researching their
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` web properties in preparation for the job interview.
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` Q I see. So approximately also in 2007 I
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` imagine shortly before you started the job?
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` - - -
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` (Discussion off the Record.)
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` - - -
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` BY MR. SCHMIDT:
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` Q I will repeat the question. My question
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` was just so your exposure to the search engine you
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` mentioned was I guess basically also in 2007 shortly
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` before you got that job then?
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` A Can you repeat that question, Henning? I
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` missed a couple of words.
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` Q Yeah. No worries. Let me just kind of
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` start that train over. So you said you started in
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` November of 2007 at IEEE?
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` A Yes. November 19, 2007 was my first day
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` of employment there.
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` Q That's a very clear memory. Wow. Okay.
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` So I asked you if you had any exposure to IEEE or
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` the IEEE search engine before that date?
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` A Prior to that date, maybe two weeks before
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` I started working there was my last interview and I
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` the interview.
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` Q So regarding your declaration -- I'm
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` sorry. Do you have a copy of your declaration in
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` front of you?
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` A I can bring it up. I have it minimized.
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` Q That's great. So you have it available
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` electronically?
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` A Yes. I have it right in front of me now.
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` Q Great.
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` MR. SCHMIDT: Brian, I imagine you do as
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` well?
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` MR. NASH: I think for the record we
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` should identify it as Exhibit 1027.
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` MR. SCHMIDT: Okay. Yes. That's the one
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` I'm looking at.
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` MR. NASH: Is that the document you have,
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` Mr. MacPherson? It should say Exhibit 1027.
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` MR. SCHMIDT: In the bottom right.
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` MR. NASH: Bottom right.
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` THE WITNESS: Just a moment. I'm
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` scrolling down to the bottom.
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` MR. SCHMIDT: It's on the bottom of the
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` front page. Actually, bottom of every page.
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` MR. NASH: If not. We can give you an
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` official exhibit version for your reference.
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` THE WITNESS: I don't see that on my copy.
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` MR. NASH: Do you want to try and email
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` that to Mr. Brey, Henning?
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` MR. SCHMIDT: Sure. I will do that right
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` now. What is the email address?
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` MR. BREY: It's Brey dot Michael at
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` Dorsey.com.
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` - - -
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` (Discussion off the Record.)
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` MR. SCHMIDT: Okay. I just sent it. Are
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` you still waiting for it.
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` MR. BREY: Yes.
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` MR. SCHMIDT: Brian, did you get it?
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` MR. NASH: I did. Yes.
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` MR. SCHMIDT: Okay. At least I know the
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` email sent. From what you can tell, Brian, did I
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` get Michael's email correct?
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` MR. NASH: I don't know. Let me double
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` check. I think I put you guys in contact with an
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` email on Friday.
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` MR. SCHMIDT: You did. I just typed it in
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` because I forgot about that.
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` - - -
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` (Discussion off the Record.)
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` - - -
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` BY MR. SCHMIDT:
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` Q We can go back on the record then. So now
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`Intel Exhibit 1040 - 11
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` we are all looking at what it labeled Intel Exhibit
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` 1017; is that correct?
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` A Yes.
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` Q And this document is entitled Declaration
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` of Gordon MacPherson. Do you see that?
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` A Yes.
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` Q This is your declaration?
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` A Yes, it is.
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` Q Okay. When were you first contacted about
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` this matter?
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` A It was in mid-March.
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` Q Okay. So about a month ago round about?
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` A I don't know the exact date. I think it
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` was more than a month ago.
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` Q Okay. Early March, mid or early March?
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` A Mid-March I believe.
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` Q Okay. When you first started at the IEEE
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` in 2007, did you start in your current role as
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` Director?
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` A No. I was Manager of the Conference
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` Publishing Team.
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` Q Okay. How long did you hold that role
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` for?
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` A I was Manager of the Express Conference
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` Publishing Team until late 2010.
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` Q And what role did you switch to then?
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` A Then I became Senior Program Manager of
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` Conference Publishing and E Books.
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` Q How long did you hold that role?
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` A Until June of 2012. In June 2012 I became
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` Director of Conference Quality.
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` Q And how long did you hold that role?
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` A That was until October of 2016. In
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` October of 2016 I became Director of Board
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` Governance and Intellectual Property Operations, and
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` that's the role I've held since.
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` Q Okay. So let's take a look at the second
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` page there, paragraph nine. Do you see that? This
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` is referring to three exhibits labeled A, B and C in
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` paragraph eight?
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` A Yes.
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` Q And paragraph nine here states that you
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` obtained copies on or as they existed on March 19th,
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` 2021. Do you see that?
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` A Yes.
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` Q Okay. Did you ever obtain copies at any
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`Page 14
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` earlier date than that?
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` A No, I did not.
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` Q Paragraph 10, could you read that
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` paragraph to yourself, please?
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` A Yes. I've read it.
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` Q Okay. So this is referring to the IEEE's
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` standard practice; is that correct?
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` A That is correct.
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` Q Okay. Do you have personal knowledge
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` whether this practice was followed for the three
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` exhibits A, B and C listed in your declaration?
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` MR. NASH: Objection. Form.
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` MR. BREY: You may answer.
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` A I do not know specifically on the date
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` that those articles were processed whether or not
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` those procedures were followed. However, I can tell
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` you that the process is heavily automated and there
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` would be no reason for me to believe that the
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` standard procedure was not followed for that article
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` or those articles.
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`Intel Exhibit 1040 - 14
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`Page 15
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` Q Do you know when the automation of this
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` process was implemented?
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` A It was prior to my arrival at IEEE, so
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` sometime in the 2000 teens. I'm sorry. Sometime in
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` the 2000s, so sometime around 2005 or so.
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` Q So sometime before November 2007?
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` A Yes.
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` Q But you don't know exactly when?
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` A I don't know when, but I know that it was
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` in place when I arrived.
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` Q Okay. Do you know if it was a piecemeal
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` automation or was it all implemented, you know, from
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` one day to the next; like it was manual one day and
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` then it started being automated the following day?
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` A I don't know. I don't know the answer to
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` that.
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` Q Okay. In paragraph eleven, would you mind
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` reading that to yourself real quick, please?
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` A Okay. I've read it.
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` Q In the third line from the bottom it says:
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` "In accordance with IEEE's standard practices,
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` copies of the proceedings were made available no
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` later than the last day of the conference."
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` Do you see that?
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` A Yes.
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` Q Do you have personal knowledge that these
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` copies were indeed made available no later than the
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` last day of that specific conference?
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` A For that specific conference, no. I can
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` only speak to standard business practice of IEEE
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` conferences.
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` Q Okay. In the Paragraph 12 you have the
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` same sentence regarding the Gupta reference, so I
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` would like to ask the same question, whether you
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` have personal knowledge that these copies were
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` indeed made available no later than the last day of
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` the conference?
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` A Again I have to say I can only speak to
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` IEEE's standard business practice, not for that
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` particular conference.
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` Q Okay. And the same question for the
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` references referred to in Paragraph 13, Chien and
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` Gupta? The reference, sorry, singular.
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` A Yes. Again, I can speak to IEEE's
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` standard business practices, but not to what
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` happened at that particular conference.
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` Q Okay. Are you familiar at all with the
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` manual process of entering this information before
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` the process was automated?
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` A No. It predated my time at IEEE and I
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` don't know how the metadata mining was done at that
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` time.
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` Q Okay. Do you have any idea as to the
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` error rate of the metadata mining before that time,
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` before the automation?
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` A I don't know that.
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` Q Okay.
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` MR. SCHMIDT: I have no further questions.
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` Brian, do you have any questions?
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` MR. NASH: Yes. Can you give me, maybe we
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` can go off the record for about five minutes here
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` and I might have just a handful of follow-up
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` questions?
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` MR. SCHMIDT: Sure.
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` (Recessed at 1:32 p.m.)
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` (Reconvened at 1:43 p.m.)
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` BY MR. NASH:
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` Q Mr. MacPherson, are you ready?
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` A Yes.
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` Q I don't think we are going to be a lot
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` longer here. I just have a couple very short
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` questions for you.
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` So I wanted to first I believe counsel for
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` FG SRC asked you questions about Paragraph 10, so if
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` you could turn to that, I have just some follow-ups
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` to that line of questioning, if that's okay. Let me
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` know when you are there.
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` A Okay. Yes. I have it in front of me.
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` Q So in Paragraph 10 you state that the
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` articles and abstracts from IEEE Xplore shows the
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` date of publication as well as additional
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` publication information. Do you see that?
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` A Yes.
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` Q And can you testify as to what your basis
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` is for making that statement?
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` A Okay. I'm going to scan down to the
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` article as downloaded so I can answer you
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` specifically. So there are various pieces of
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` metadata. Let me tell you where I am. I'm on row
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` two of the first exhibit, which is Architectural
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` Adaptation for Application-Specific Locality
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` Optimizations. I think it's the first article,
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` Exhibit A.
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` Q Yes. Do you see a page number at the
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` bottom of the page? Would that be page Exhibit
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` 1027-5? 1027-5 just to make sure we are on the same
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` page?
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` A My -- I'm -- let me make sure I have the
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` copy that Mr. Schmidt sent me.
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` Q If it would help, I could also share
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` screen and allow you to see the version I have up to
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` see if we are on the same page.
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` A That would be easier.
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` Q Would that be easier?
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` A I think that would be easier.
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` Q Hold on one second. I'll see if I can get
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` that set up. I assume this is similar to setting up
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` any other Zoom in term of setting up the share
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` screen. Can you see the Exhibit? I'll just go to
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` the first page of that.
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` A Yes.
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` Q Does that match the exhibit you have in
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` front of you, Mr. MacPherson?
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` A Yes. This I can see. You can -- if you
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` could go to paragraph ten and then we will go down
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` to the article itself?
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` Q Yes, sir. Is that the Paragraph 10 you
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` were referencing here? And I'm using the bottom for
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` pagination purposes. So if you see where I'm
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` highlighting, Intel Exhibit 1027-2?
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` A Yes.
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` Q Okay. That will just help for the record
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` purposes so we can keep track of what page we are
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` on.
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` A Okay. I guess if you want to scan down to
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` the first, to Exhibit A? And then go down one more
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` page.
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` Q Yes. I'm on page 1027-5 right now. I
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` will turn to the next page, which is 1027-6.
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` A Okay.
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` Q Is this the page you were referencing?
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` A Yes. So on this page you can see near the
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`Intel Exhibit 1040 - 20
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` top of the page there are points of what we refer to
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` as article metadata.
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` So first is the date of the conference;
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` October 12 through October 15th, 1997. And just
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` beneath that is the date added to IEEE Xplore, and I
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` believe that's August 6, 2002.
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` So in our definition, our IEEE definition
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` of published means that something was made available
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` to an interested audience. That's the simplest way
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` I would define publishing.
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` We recognize the last day of the
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` conference as the publication date for our
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` conference article, and in very real world terms in
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` 1997 what that meant was on October 15th conference
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` organizers distributed CD-ROM or a book, something
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` like that to the attendees, and we recognize that as
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` the day that the entire proceedings of the
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` conference were made available to an interested
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` audience.
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` Now, the date added to IEEE Xplore, that's
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` the date at which they were displayed to a much
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` wider audience. So it gets two different ways of
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`Intel Exhibit 1040 - 21
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` recognizing a date of publication. We recognize
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` officially, and this is a long-term practice for
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` IEEE, recognize the last day of the conference as
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` the date that the content was first made available
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` to a public audience.
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` Q I see. And you referenced the date added
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` to IEEE Xplore as being available to a much wider
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` audience. Could you explain what you mean by that?
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` A IEEE Xplore is used by virtually every top
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` engineering schools' library as a research database,
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` so it's much wider than the audience at that
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` conference, which could have been several hundred
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` people.
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` Q I see. And would that have been, can you
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` tell me a little bit more about how it's available
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` in that context? Is it something that's searchable?
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` Is it indexed or categorized in any meaningful way?
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` A Yes. It's searchable. Depending on how
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` you, depending on how you are viewing it, I believe
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` that IEEE Xplore, the web version of IEEE Xplore
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` went live in 1999. So anything, if you were looking
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` at IEEE Xplore in the 1990s, you would be looking
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`Intel Exhibit 1040 - 22
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` via a CD-ROM juke box.
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` Q And with the web version, what would you
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` see with that interface?
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` A What you see in front of you. And that's,
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` this was just a month and a half ago or so that I
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` downloaded the article. This is what you would see
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` today, this type of metadata display before you went
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` on to read the article.
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` Q Then in 2000 and -- I guess going to this
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` date that you mentioned, August 6th of 2002, how is
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` that information populated here on this abstract
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` page?
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` A That's recorded directly out of our
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` database or out of our content management system,
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` which we can refer to as our database. That's the
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` day that it was uploaded to IEEE Xplore. And that
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` means it was extracted from our content management
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` system, the website was refreshed, and the article
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` became visible to viewers on the web application.
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` Q And by viewers, do you mean the general
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` public that had access to the IEEE database?
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` A Subscribers, yes.
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`Intel Exhibit 1040 - 23
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` Q And is the date associated with that
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` information that would have been kept in the
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` ordinary course of business for IEEE?
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` A Yes. We keep -- ever since Xplore began
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` we could go back and check the date any article was
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` added, was added to the live version of IEEE Xplore.
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` So it means when it was uploaded, it became
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` available for outside view.
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` Q And as the custodian of records for IEEE,
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` do you have any basis to doubt the veracity or
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` authenticity of that date as reflected here on page
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` 1027-6?
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` A I don't have any reason to doubt it
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` specifically.
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` Q Okay. If I may, can I direct you to
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` another page that has similar information?
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` A Yes.
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` Q If you could turn to page 1027-15, and I
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` will turn there on this PDF document that I'm
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` currently sharing.
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` So page 1027-15. Let me know when you are
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` there.
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`Intel Exhibit 1040 - 24
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` A Yes. I can see it on the screen.
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` Q This is the start of what was referred to
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` as Exhibit E in your declaration, an article titled
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` Architectural Adaptation in AMRM Machines; correct?
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` A Yes.
`
` Q And then I would like to turn to the next
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` page. And we see there, this is a carryover from
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` the preceding page -- we are now on page 1027-16 --
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` another similar field saying date added to IEEE
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` Xplore. Do you see that?
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` A Yes.
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` Q And can you tell me the date on that?
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` A 6 August 2002.
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` Q And is that date populated in the same way
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` that we discussed with respect to Exhibit A to your
`
` declaration just moments ago?
`
` A I believe it was. Yes.
`
` Q So this would be populated through
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` metadata or data from your database reflecting when
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` this article was first made available for public
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` viewing on IEEE Xplore; correct?
`
` A Yes.
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`Intel Exhibit 1040 - 25
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` Q And I'm going to turn now a few more
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` pages, so if you will bear with me. Now I'm on page
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` 1027-23. Let me know when you are there. I have
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` pulled it up on the screen as well.
`
` A I can see it.
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` Q I believe this is the third article that
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` was attached to your declaration as Exhibit C
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` titled, "MORPH: A system architecture for robust
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` high performance using customization (an NSF 100
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` TeraOps point design study)." Do you see that?
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` A Yes.
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` Q I'm going to turn to the next page, which
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` is page 1027-24. Let me know when you are there.
`
` A Yes. I can see it.
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` Q And that also has a similar field as part
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` of the abstract information referring to the date
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` added to IEEE Xplore; correct?
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` A Yes, it does.
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` Q And can you read the date for that as
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` well?
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` A 6 August 2002.
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` Q Okay. Thank you. And is the testimony,
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`Intel Exhibit 1040 - 26
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` is your testimony the same for this field and data
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` as it would have been for the last two articles we
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` discussed; namely, that this is populated from
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` metadata that's kept in the ordinary course of
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` business reflecting the date by which it was first
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` made publicly accessible on IEEE Xplore?
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` A Yes.
`
` Q Hold on one second.
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` MR. NASH: I have no further questions. I
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` pass the witness.
`
` BY MR. SCHMIDT:
`
` Q So staying on the page we were just
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` looking at here, you see the date of conference is
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` in '96 and the date added to Xplore is in 2002. Do
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` you see that?
`
` A Yes, I do.
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` Q Do you have any explanation for that
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` six-year delay?
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` A The best explanation I can give you is
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` that there was a delay, a substantial delay in
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` between the time the conference closed and the time
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` the proceedings were delivered to IEEE for posting
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`Intel Exhibit 1040 - 27
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` in Xplore. That would be my educated guess because
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` I used to produce conference proceedings, and one of
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` the difficulties we faced in terms of timeliness was
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` actually getting the proceedings from the conference
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` organizers because the conference organizers went
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` back to their normal lives after they ran the
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` conferences.
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` Q And it does not -- does it strike you as
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` odd or as not unexpected that this delay would have
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` been up to six years in this case?
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` A It seems like a long time, but it's not
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` unheard of.
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` Q Okay. The other references have similar
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` gaps. Although, the one thing that strikes me as
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` interesting is that the date added to IEEE Xplore is
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` August 6 of 2002 for all of them. Do you recall
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` that or do you want to look at these pages to be
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` certain?
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` A I recall that I saw that, I saw that as
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` well.
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` Q Okay. The interesting thing here is that
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` each of -- the conferences are on three different
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`Intel Exhibit 1040 - 28
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`Page 29
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` dates; one in '96, one in 2002 -- no. Sorry. When
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` is this one? One in 2000 and one in '97. So you
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` have '96, '97 and 2000, yet all three of them ended
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` up being made available on August 6, 2002. It just
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` seems odd. Do you have an explanation of why they
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` would all coincide like that?
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` A The most reasonable explanation would be
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` that the three, these three conference proceedings
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` in which these three articles appear were part of
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` the same batch of old conference proceedings that
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` were received and processed by IEEE. That's what I
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` would guess.
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` Q And the date -- so literally the
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` description here says date added to IEEE Xplore;
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` right?
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` A Yes.
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` Q And does that mean when it was added to
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` the IEEE Xplore database?
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` A No. That's the date that it, that's the
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` date that it went, quote/unquote, went live in IEEE
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` Xplore such that it would be able to view it on the
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` website, on the Xplore website.
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`Intel Exhibit 1040 - 29
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` Q
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