·1
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`Page 1
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`·2· · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`·3· · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· ·INTEL CORPORATION,
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`·5· · · · · · · · Petitioner,
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`·6· ·vs.
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`·7· ·FG SRC LLC
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`·8· · · · · · · ·Patent Owner.
`· · ·_________________________________________________
`·9
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`10· · · · · · · · ·CASE NO.:· IPR2020-01449
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`11· · · · · · · · · ·PATENT NO. 7,149,867
`
`12
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`13
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`14· · · · · · ·REMOTE VIDEOTAPED DEPOSITION OF
`
`15· · · · · · · WILLIAM MANGIONE-SMITH, PH.D.
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`16
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`17· · · · · · · ·Thursday, September 16, 2021
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`18· · · · · · · · · ·Kirkland, Washington
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`19
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`20
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`21
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`22
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`23· ·Reported by:
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`24· ·ANN FORD, RPR
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`25· ·JOB NO. 199645
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`Intel Exhibit 1044 - 1
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`
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`Page 1
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`·2· · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`·3· · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· ·INTEL CORPORATION,
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`·5· · · · · · · · Petitioner,
`
`·6· ·vs.
`
`·7· ·FG SRC LLC
`
`·8· · · · · · · ·Patent Owner.
`· · ·_________________________________________________
`·9
`
`10· · · · · · · · ·CASE NO.:· IPR2020-01449
`
`11· · · · · · · · · ·PATENT NO. 7,149,867
`
`12
`
`13
`
`14· · · · · · ·REMOTE VIDEOTAPED DEPOSITION OF
`
`15· · · · · · · WILLIAM MANGIONE-SMITH, PH.D.
`
`16
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`17· · · · · · · ·Thursday, September 16, 2021
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`18· · · · · · · · · ·Kirkland, Washington
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`19
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`20
`
`21
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`22
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`23· ·Reported by:
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`24· ·ANN FORD, RPR
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`25· ·JOB NO. 199645
`
`Intel Exhibit 1044 - 1
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`
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`Page 2
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`·1
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`·2
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`·3
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`·4· · · · · · · · · · · · ·September 16, 2021
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`·5· · · · · · · · · · · · ·8:45 a.m.
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`·6
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`·7
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`·8· · · · · · · · Remote videotaped deposition of
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`·9· ·William Mangione-Smith, Ph.D., pursuant to Notice,
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`10· ·before Ann Ford, Registered Professional Reporter,
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`11· ·and Notary Public in and for the State of Ohio.
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`21
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`24
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`25
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`Intel Exhibit 1044 - 2
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`Page 3
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`·1
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`·2· ·REMOTE APPEARANCES:
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`·3· · · · · ·BRIAN NASH, ESQ.
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`·4· · · · · ·Pillsbury Winthrop Shaw Pittman
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`·5· · · · · ·401 Congress Avenue
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`·6· · · · · ·Austin, Texas 78701
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`·7· · · · · ·On behalf of the Petitioner Intel
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`·8· · · · · ·Corporation.
`
`·9
`
`10
`
`11
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`12· · · · · ·HENNING SCHMIDT, ESQ.
`
`13· · · · · ·DiMuro Ginsberg
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`14· · · · · ·1101 King Street
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`15· · · · · ·Alexandria, Virginia 22314
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`16· · · · · ·On behalf of the Patent Owner.
`
`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Intel Exhibit 1044 - 3
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`Page 4
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`·1
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`·2· ·REMOTE APPEARANCES:
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`·3· · · · · ·DAVID HOFFMAN, ESQ.
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`·4· · · · · ·Fish & Richardson
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`·5· · · · · ·111 Congress Avenue
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`·6· · · · · ·Austin, Texas 78701
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`·7· · · · · ·On behalf of Xilinks.
`
`·8
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`·9
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`10
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`11· ·ALSO PRESENT:
`
`12· ·Matt Hindman, Esq., Pillsbury
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`13· ·Marshall Fox, Legal Videographer
`
`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Intel Exhibit 1044 - 4
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`·1
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`Page 5
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`·2· · · · · · · · · · · · I N D E X
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`·3· ·WITNESS· · · · · · · · · · · · · · · · · ·PAGE
`
`·4· ·WILLIAM MANGIONE-SMITH, PH.D.
`· · · · · · · · · ·Examination· · · · · · · · · ·8
`·5· · · · · · · · ·(By Mr. Nash)
`
`·6· · · · · · · · ·Examination· · · · · · · · ·126
`· · · · · · · · · ·(By Mr. Schmidt)
`·7
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`·8· · · · · · · · · · · · · - - -
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`·9
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`10· ·EXHIBITS· · · · · · · · · · · · · · · · ·MARKED
`
`11· ·Exhibit 2028· · · · · · · · · · · · · · · ·14
`· · ·(Declaration of William Mangione-Smith,
`12· ·Ph.D., in Support of FG SRC LLC's
`· · ·Response to Petition)
`13
`· · ·Exhibit 1001· · · · · · · · · · · · · · · ·32
`14· ·(US Patent 7,149,867, Bates Intel Exhibit
`· · ·1001 - 1 through Intel Exhibit 1001 - 21)
`15
`· · ·Exhibit 1003· · · · · · · · · · · · · · · ·68
`16· ·(International Conference on Computer
`· · ·Design, Bates Intel Exhibit 1003 - 1
`17· ·through Intel Exhibit 1003 - 18)
`
`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Intel Exhibit 1044 - 5
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`Page 6
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`·1· · · ·(W. Mangione-Smith - 9/16/2021)
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`·2· · · · · · ·P R O C E E D I N G S
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`·3· · · · · · · · · · ·- - -
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`·4· · · · ·THE VIDEOGRAPHER:· We're now on the
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`·5· ·record.· The time is 8:45 a.m. Pacific.
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`·6· ·This is the remote videotaped deposition
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`·7· ·of William Mangione-Smith, Ph.D., on
`
`·8· ·September 16, 2021, in the matter of Intel
`
`·9· ·Corporation versus FG SR LLC in the United
`
`10· ·States Patent and Trademark Office before
`
`11· ·the Patent Trial and Appeal Board, Case
`
`12· ·Number IPR2020-01449.
`
`13· · · · ·This deposition is being held
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`14· ·remotely over Zoom.
`
`15· · · · ·My name is Marshall Fox.· I am the
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`16· ·certified legal video specialist with
`
`17· ·TSG Reporting.· The court reporter today
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`18· ·is Ann Ford, also with TSG Reporting.
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`19· · · · ·Due to the ongoing COVID-19
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`20· ·precautions, all parties are participating
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`21· ·remotely.· I will not be in the same room
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`22· ·with the witness.· Instead, I will record
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`23· ·this deposition remotely.
`
`24· · · · ·The court reporter also will not be
`
`25· ·in the same room and will swear the
`
`Intel Exhibit 1044 - 6
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 7
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`·2· · · · witness remotely.
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`·3· · · · · · · Counsel will please state their
`
`·4· · · · appearance for the record and stipulate to
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`·5· · · · the validity of this remote video
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`·6· · · · recording and remote swearing.
`
`·7· · · · · · · MR. NASH:· I can start.
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`·8· · · · · · · This is Brian Nash for Petitioner,
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`·9· · · · Intel Corporation.· I'm joined with one of
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`10· · · · my colleagues, Matt Hindman, also of
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`11· · · · Pillsbury, Winthrop, Shaw, Pittman.
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`12· · · · · · · We are stipulating to the validity
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`13· · · · of this remote video recording and remote
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`14· · · · swearing in.
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`15· · · · · · · MR. SCHMIDT:· Henning Schmidt with
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`16· · · · DiMuroGinsberg on behalf of FG SRC, the
`
`17· · · · patent owner.
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`18· · · · · · · THE VIDEOGRAPHER:· Thank you.· All
`
`19· · · · other appearances have been noted on the
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`20· · · · written record.
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`21· · · · · · · If the Court Reporter will please
`
`22· · · · swear in the witness.
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`23· · · · · · · WILLIAM MANGIONE-SMITH, PH.D.,
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`24· ·being by me remotely first duly sworn, as hereinafter
`
`25· ·certified, testifies and says as follows:
`
`Intel Exhibit 1044 - 7
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`
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`Page 8
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`·2· · · · · · · · · · · ·EXAMINATION
`
`·3· ·BY MR. NASH:
`
`·4· ·Q.· · · · ·Good morning, Dr. Mangione-Smith.· How are
`
`·5· ·you?
`
`·6· ·A.· · · · ·Good morning, sir.· How are you?
`
`·7· ·Q.· · · · ·Good.
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`·8· · · · · · · I'm sure you understand why you're here
`
`·9· ·today; correct?
`
`10· ·A.· · · · ·Yes.
`
`11· ·Q.· · · · ·Deposition related to the IPR between
`
`12· ·Intel Corporation and FG SRC; is that right?
`
`13· ·A.· · · · ·That's my understanding.· Yes.
`
`14· ·Q.· · · · ·Yeah.· And I believe you've been deposed
`
`15· ·before.
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`16· · · · · · · It's not your first rodeo; is that
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`17· ·correct?
`
`18· ·A.· · · · ·That's correct.
`
`19· ·Q.· · · · ·Okay.· And so I think you kind of
`
`20· ·understand the general rules of a deposition.· You
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`21· ·recognize that you're under oath; correct?
`
`22· ·A.· · · · ·Yes, sir.
`
`23· ·Q.· · · · ·Same as if we're in trial at a courthouse
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`24· ·before a judge or a jury, you have to tell the truth.
`
`25· · · · · · · You understand; right?
`
`Intel Exhibit 1044 - 8
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`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 9
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`·2· ·A.· · · · ·Yes, sir.
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`·3· ·Q.· · · · ·And I'm going to ask you questions.
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`·4· ·You're going to have to answer audibly.· You won't be
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`·5· ·able to shake your head because the Court Reporter
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`·6· ·won't be able to take that down.
`
`·7· · · · · · · You understand that; right?
`
`·8· ·A.· · · · ·Yes.
`
`·9· ·Q.· · · · ·We can take a break at any time.· Of
`
`10· ·course, if there's a question pending, I would
`
`11· ·appreciate if you answer that question first, and
`
`12· ·then we can take a break.· I'm probably going to want
`
`13· ·a number of breaks myself, so feel free to let me
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`14· ·know if you need something, you know, restroom-wise
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`15· ·or otherwise.· Okay?
`
`16· ·A.· · · · ·Will do.· Thank you.
`
`17· ·Q.· · · · ·Okay.· And have you taken any -- I guess I
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`18· ·should also note that your counsel is here today.
`
`19· ·He's going to make some objections.· But unless he
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`20· ·instructs you to not answer, you do have to answer my
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`21· ·question.
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`22· · · · · · · Do you understand that?
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`23· ·A.· · · · ·Yes.· That's consistent with my
`
`24· ·understanding and experience.
`
`25· ·Q.· · · · ·Okay.· And have you had a video deposition
`
`Intel Exhibit 1044 - 9
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`·2· ·yet?· I feel like we've all done these now with
`
`Page 10
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`·3· ·COVID.
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`·4· ·A.· · · · ·I've had several.
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`·5· ·Q.· · · · ·Okay.· You understand that like, under a
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`·6· ·normal deposition, you're not allowed to communicate
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`·7· ·with your attorney during the deposition.
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`·8· · · · · · · You understand that; right?· And I say
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`·9· ·"normal."· I mean like one we would do live or in
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`10· ·person.
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`11· ·A.· · · · ·Right.· I mean, my -- we communicate
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`12· ·often, but typically it's not about the testimony,
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`13· ·you know.· It's, "What are you doing for lunch?· How
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`14· ·is your day?"· Casual stuff.
`
`15· ·Q.· · · · ·Sure.· Of course.
`
`16· · · · · · · The substance of the testimony is what I'm
`
`17· ·referring to.· You understand that while you're sworn
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`18· ·in and under cross-examination for the deposition
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`19· ·you're not supposed to confer with your counsel;
`
`20· ·correct?
`
`21· ·A.· · · · ·Yes.· That's my understanding.
`
`22· ·Q.· · · · ·And then just because it's a video
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`23· ·deposition, I think I'd just like to confirm, you
`
`24· ·understand that you're also not supposed to be
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`25· ·communicating while the deposition is going on, you
`
`Intel Exhibit 1044 - 10
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 11
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`·2· ·know, over text or instant message or some form like
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`·3· ·that while we're in the middle of questioning?
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`·4· · · · · · · And you understand that; correct?
`
`·5· ·A.· · · · ·Yes.· That's my understanding.
`
`·6· ·Q.· · · · ·I figured you understood all that, but I
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`·7· ·just wanted to make sure we were all clear on the
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`·8· ·record.
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`·9· · · · · · · So is there any reason you can't give
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`10· ·accurate and complete testimony today?
`
`11· ·A.· · · · ·Not that I'm aware of.
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`12· ·Q.· · · · ·Okay.· And I'm going to talk about
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`13· ·U.S. Patent Number 7,149,867.· You've probably heard
`
`14· ·of that patent already.
`
`15· ·A.· · · · ·Yes, sir.
`
`16· ·Q.· · · · ·Is it okay if I call that the '867 Patent?
`
`17· ·A.· · · · ·Yes.
`
`18· ·Q.· · · · ·Okay.· And you understand that's the
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`19· ·subject matter of this IPR proceeding; correct?
`
`20· ·A.· · · · ·Yes.
`
`21· ·Q.· · · · ·And are you being compensated by FG SRC
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`22· ·for your time on this matter?
`
`23· ·A.· · · · ·Yes.
`
`24· ·Q.· · · · ·How much is that?
`
`25· ·A.· · · · ·I would have to go back and check. I
`
`Intel Exhibit 1044 - 11
`
`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 12
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`·2· ·believe -- I believe it's $650 an hour, but to be
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`·3· ·honest with you, I don't recall.· It's in a
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`·4· ·spreadsheet.
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`·5· ·Q.· · · · ·Understood.
`
`·6· · · · · · · And do you understand approximately how
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`·7· ·many hours you've put into the matter so far?
`
`·8· ·A.· · · · ·The short answer is no.· I can get the
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`·9· ·exact number.· I would say that this has not been a
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`10· ·big activity for me compared to many of my other
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`11· ·projects and clients.
`
`12· ·Q.· · · · ·How many, sort of, litigation-related
`
`13· ·expert consulting projects have you had; do you know?
`
`14· ·A.· · · · ·Going back to my time at UCLA, quite a
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`15· ·few.· At UCLA, there were probably five or six.· But
`
`16· ·since leaving Intellectual Adventures, that has been
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`17· ·most of my work.· Again, I can get you the exact
`
`18· ·answer.· But more than 20.
`
`19· ·Q.· · · · ·Okay.· And this is not your first case
`
`20· ·where you've been opposite Intel Corporation; right?
`
`21· ·A.· · · · ·That's correct.
`
`22· ·Q.· · · · ·Do you know approximately how many times
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`23· ·you've been on the other side of Intel in a case?
`
`24· ·A.· · · · ·In one form or another, meaning, you know,
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`25· ·maybe they were a third party brought in or -- I
`
`Intel Exhibit 1044 - 12
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`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 13
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`·2· ·would guess probably about five.· But I'm not sure.
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`·3· ·I think this is the first time I've been against
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`·4· ·Xilinx.
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`·5· ·Q.· · · · ·Okay.
`
`·6· ·A.· · · · ·Not that you asked, I'm just throwing that
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`·7· ·out there.
`
`·8· ·Q.· · · · ·No.· Understood.· They're a part of the
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`·9· ·proceeding as well.· I neglected to give -- I'm not
`
`10· ·sure if Xilinx's counsel might be on the line. I
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`11· ·don't know if they wanted to note their presence or
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`12· ·anything.
`
`13· · · · · · · So you mentioned that this matter has been
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`14· ·less than, like, a typical litigation matter for you.
`
`15· · · · · · · Do you have -- you know, I don't need
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`16· ·anything exact, but does that mean it's less than
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`17· ·20 hours so far or less than 10?
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`18· · · · · · · What does that kind of number look like?
`
`19· ·A.· · · · ·I'm sorry.· I started talking over you.
`
`20· ·Q.· · · · ·No problem.
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`21· ·A.· · · · ·I think it's more than 20.· But, again,
`
`22· ·like I said, in my work, it's not a lot of hours.
`
`23· ·But I can get you the exact number offline if you
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`24· ·want.
`
`25· ·Q.· · · · ·No problem.
`
`Intel Exhibit 1044 - 13
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`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 14
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`·2· · · · · · · And did you do anything to prepare for the
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`·3· ·deposition today?
`
`·4· ·A.· · · · ·Yes.· I went back, and I reviewed my
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`·5· ·declarations and some of the underlying materials
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`·6· ·that I cited, and there was some fairly brief
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`·7· ·discussion with counsel.
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`·8· ·Q.· · · · ·Okay.· About how long was the meeting with
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`·9· ·counsel?
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`10· ·A.· · · · ·Maybe an hour and a half.
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`11· ·Q.· · · · ·Okay.· And you submitted, I guess, at
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`12· ·least one declaration in this matter; right?
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`13· ·A.· · · · ·Yes.· I believe I've submitted two.
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`14· · · · · · · · · · -· ·-· ·-· ·-· ·-
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`15· · · · · · · (Thereupon, Exhibit 2028, Declaration of
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`16· · · · William Mangione-Smith, Ph.D., in Support of
`
`17· · · · FG SRC LLC's Response to Petition, was marked
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`18· · · · for identification.)
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`19· · · · · · · · · · -· ·-· ·-· ·-· ·-
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`20· ·BY MR. NASH:
`
`21· ·Q.· · · · ·Okay.· And are you familiar with the one
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`22· ·that I circulated to you before this started, which
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`23· ·was Exhibit 2028?
`
`24· ·A.· · · · ·Yes.· I've got it open in front of me as
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`25· ·well.
`
`Intel Exhibit 1044 - 14
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`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 15
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`·2· ·Q.· · · · ·Okay.· And you recognize that as being the
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`·3· ·declaration you submitted along with patent owner's
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`·4· ·response; correct?
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`·5· ·A.· · · · ·Yes.
`
`·6· ·Q.· · · · ·Did you prepare this document?
`
`·7· ·A.· · · · ·I did.
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`·8· ·Q.· · · · ·Okay.· And so you wrote it?
`
`·9· ·A.· · · · ·I certainly didn't write every word.
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`10· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`11· ·A.· · · · ·It expresses my opinions.· You know, bits
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`12· ·and pieces, like, for example, my understanding of
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`13· ·the law, elements of my background have been
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`14· ·accumulated over the years with input from numerous
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`15· ·sources.
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`16· · · · · · · This document does express my opinions as
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`17· ·related to this matter.
`
`18· ·Q.· · · · ·But you did copy a lot of the testimony in
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`19· ·here from another witness; isn't that right?
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`20· · · · · · · MR. SCHMIDT:· Objection.· Form.
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`21· ·A.· · · · ·I have to look at what particular passage
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`22· ·you're thinking of, but I certainly did read
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`23· ·materials prepared by another expert, whose name
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`24· ·escapes me at the moment, and was asked to consider
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`25· ·them.· And in some cases, you know, accepted -- I
`
`Intel Exhibit 1044 - 15
`
`
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`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
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`Page 16
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`·2· ·agreed with the arguments that were expressed, and I
`
`·3· ·didn't see a particular point in rewriting them.
`
`·4· ·Q.· · · · ·Okay.· And I think you acknowledged that
`
`·5· ·on footnote 1 at page 8.· I don't know if that helps
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`·6· ·give you a reference.
`
`·7· ·A.· · · · ·It doesn't help with the one embarrassing
`
`·8· ·aspect, which is that I don't recall the expert's
`
`·9· ·name.· But that's immaterial, really.
`
`10· ·Q.· · · · ·We've demonstrated that I have trouble --
`
`11· ·pronouncing names gives me a little trouble, but I
`
`12· ·think it's Oklobodzija.
`
`13· · · · · · · MR. SCHMIDT:· That was terrible,
`
`14· · · · Brian.· Sorry.
`
`15· · · · · · · MR. NASH:· Could you correct my
`
`16· · · · pronunciation, please.
`
`17· · · · · · · MR. SCHMIDT:· I would prefer not to,
`
`18· · · · to be honest.· I go with his first name,
`
`19· · · · Vojin.
`
`20· · · · · · · MR. NASH:· I just put it in the chat
`
`21· · · · for you, Ms. Ford.
`
`22· · · · · · · THE STENOGRAPHER:· How do you spell
`
`23· · · · the first name?
`
`24· · · · · · · MR. SCHMIDT:· V-O-J-I-N.
`
`25
`
`Intel Exhibit 1044 - 16
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 17
`
`·2· ·BY MR. NASH:
`
`·3· ·Q.· · · · ·Does that help refresh your recollection,
`
`·4· ·Dr. Mangione-Smith?
`
`·5· ·A.· · · · ·It does.· It helps in particular that I
`
`·6· ·don't recall having a personal professional
`
`·7· ·relationship with him.· So I'm a little bit less
`
`·8· ·embarrassed at not remembering his name.
`
`·9· ·Q.· · · · ·Okay.· And do you recall how much of what
`
`10· ·he had already done that you copied over into your
`
`11· ·opinion?
`
`12· ·A.· · · · ·No, I don't, because at the end of the
`
`13· ·day, I wouldn't have adopted the specific language if
`
`14· ·I didn't agree with the opinions stated and was
`
`15· ·adopting -- was not adopting the opinions.· So at
`
`16· ·that point, copying portions with the acknowledgment
`
`17· ·in footnote 1 was just a matter of expediency,
`
`18· ·really.· The opinions are mine.
`
`19· · · · · · · So, no, I don't recall how much I -- I
`
`20· ·incorporated.
`
`21· ·Q.· · · · ·You didn't check with him to see if he
`
`22· ·minded you copying him; did you?
`
`23· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`24· ·A.· · · · ·I don't think I've ever spoken to him, but
`
`25· ·I may be recalling wrong.· I don't recall ever
`
`Intel Exhibit 1044 - 17
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 18
`
`·2· ·speaking to him.
`
`·3· ·Q.· · · · ·Was there anything that you noticed when
`
`·4· ·you were reviewing his testimony that he got wrong
`
`·5· ·that you did not copy over?
`
`·6· ·A.· · · · ·Not that I recall.· I will say that there
`
`·7· ·were portions of his testimony that, on first read, I
`
`·8· ·thought seemed quite surprising to me.· But, then, in
`
`·9· ·working through, you know, the patent itself and
`
`10· ·getting a better understanding of what the arguments
`
`11· ·were around the patents, they made much more sense to
`
`12· ·me.
`
`13· ·Q.· · · · ·Okay.· Well, do you recall what those
`
`14· ·portions were?
`
`15· ·A.· · · · ·Well, as a starting point, I was a little
`
`16· ·bit surprised that the argument was being made
`
`17· ·that -- yeah, that the argument was being made
`
`18· ·that -- you know, that a general-purpose CPU for
`
`19· ·doing -- executing the algorithms at first blush
`
`20· ·would not work surprised me.
`
`21· · · · · · · Now, that was -- it mostly surprised me
`
`22· ·because -- and I still believe this -- I think that
`
`23· ·that dramatically narrows the range of devices to
`
`24· ·which one could attempt to assert the patent against.
`
`25· ·You know, but upon, you know, reading the patent
`
`Intel Exhibit 1044 - 18
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 19
`
`·2· ·again in more depth and the file history, I came to
`
`·3· ·the conclusion that that was consistent with my
`
`·4· ·understanding of what they intended for the claims.
`
`·5· ·Q.· · · · ·Was there anything else that stood out to
`
`·6· ·you that you thought, at first blush, was
`
`·7· ·surprising -- I think was your characterization?
`
`·8· ·A.· · · · ·Maybe at the time.· Nothing that I recall
`
`·9· ·sitting here.· And I certainly -- I do not recall
`
`10· ·anything that I read that I thought, huh, I disagree
`
`11· ·with that, that I still disagree with, that I think
`
`12· ·would be relevant in this matter at all.
`
`13· · · · · · · I guess what I'm trying to say is there's
`
`14· ·nothing that I thought was, you know, the third rail
`
`15· ·that I didn't want to touch and should keep quiet
`
`16· ·about, if that makes sense.
`
`17· ·Q.· · · · ·What about paragraphs of your report that
`
`18· ·you crafted whole cloth, do you recall which ones
`
`19· ·those might have been?
`
`20· ·A.· · · · ·You know, I could make an effort.· No. I
`
`21· ·guess that's the brief answer.· As I said, these are
`
`22· ·my opinions, but, you know, in some cases, for
`
`23· ·example, if I was having discussions with -- this is
`
`24· ·my general practice -- if I'm having discussions with
`
`25· ·attorneys and they ask me my thoughts on a particular
`
`Intel Exhibit 1044 - 19
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 20
`
`·2· ·topic, and I express them and we discuss the topic
`
`·3· ·around and around, you know, then it may be the case
`
`·4· ·that they go off and -- somebody goes off and drafts
`
`·5· ·a couple of paragraphs, or I draft a couple of
`
`·6· ·paragraphs, and we go back and forth.
`
`·7· · · · · · · You know, in such a situation, I don't
`
`·8· ·know whether that would be -- whether you would think
`
`·9· ·that was me constructing it out of whole cloth in
`
`10· ·both cases or only in the case where I do the initial
`
`11· ·draft.· But in any case, I don't remember the split
`
`12· ·of how different passages were developed.
`
`13· ·Q.· · · · ·Understood.
`
`14· · · · · · · But you didn't talk with this prior expert
`
`15· ·before he had done his testimony; correct?· I mean,
`
`16· ·the situation you described where you're having a
`
`17· ·discussion with counsel and then they document what
`
`18· ·you said would be different than what happened here;
`
`19· ·isn't that true?
`
`20· · · · · · · Somewhat of a compound question.· Would
`
`21· ·you like me to restate that?
`
`22· ·A.· · · · ·Yeah, if you don't mind.
`
`23· ·Q.· · · · ·Okay.· I understood what you described,
`
`24· ·which is, you were having a discussion with counsel,
`
`25· ·and then they will document the opinions that you
`
`Intel Exhibit 1044 - 20
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 21
`
`·2· ·reflected as part of that discussion.· So maybe they
`
`·3· ·take the first draft.
`
`·4· · · · · · · That's what you were describing; correct?
`
`·5· ·A.· · · · ·Correct.
`
`·6· ·Q.· · · · ·But you didn't have a similar discussion
`
`·7· ·with this expert before he had put his testimony into
`
`·8· ·the declaration; correct?
`
`·9· ·A.· · · · ·Yeah, I think that's right.· Like I said
`
`10· ·before, I don't remember ever having a discussion
`
`11· ·with him.· To some extent, though, I think the
`
`12· ·process that I did here with his predrafting is an
`
`13· ·extension of what I just talked about.· Counsel came
`
`14· ·to me and said, "Here are some opinions of our
`
`15· ·previous expert.· Let's discuss these."
`
`16· · · · · · · And then, given that, you know, I could
`
`17· ·look at it as well, the previous expert did a first
`
`18· ·draft on these couple of paragraphs.· And he probably
`
`19· ·did it in conjunction with counsel.· But I don't
`
`20· ·recall speaking with that expert at all, let alone,
`
`21· ·before he wrote his declaration.
`
`22· ·Q.· · · · ·Understood.
`
`23· · · · · · · So when you were provided with it to take
`
`24· ·a look at, do you recall if there were significant
`
`25· ·portions in the testimony that is now reflected in
`
`Intel Exhibit 1044 - 21
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 22
`
`·2· ·Exhibit 2028 that were your contributions, things
`
`·3· ·that you specifically added that he did not
`
`·4· ·previously have in there before?
`
`·5· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`·6· ·A.· · · · ·I don't recall.· I haven't reviewed his
`
`·7· ·materials in months.· So I'm fairly confident that
`
`·8· ·this declaration is different in a number of material
`
`·9· ·ways from his, but I don't recall details of his.· So
`
`10· ·I couldn't point you to anything as I sit here.
`
`11· ·Q.· · · · ·Okay.· So as you sit here now, you don't
`
`12· ·have a recollection as to what would be new in your
`
`13· ·declaration versus what was in his; is that fair?
`
`14· ·A.· · · · ·You know, to some extent, in terms of
`
`15· ·sitting down and literally writing the paragraphs, I
`
`16· ·guess I would say yes.· But I would say that the
`
`17· ·expressed opinions in here are all new from the point
`
`18· ·of view that they're all opinions that I believe in
`
`19· ·and am putting forth.
`
`20· · · · · · · He may have put them forth previously as
`
`21· ·well, but these are all my opinions as I sit here and
`
`22· ·as I filed the declaration.· So they're new as
`
`23· ·expressed by me.
`
`24· ·Q.· · · · ·Okay.· That's kind of like a used car
`
`25· ·that's new to me.· But I'm trying to ask you a
`
`Intel Exhibit 1044 - 22
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 23
`
`·2· ·question relative to his testimony versus yours.
`
`·3· · · · · · · As you sit here now, you can't identify
`
`·4· ·anything that you have provided in your testimony
`
`·5· ·that is new or in addition to what he provided at his
`
`·6· ·testimony; isn't that fair?
`
`·7· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`·8· ·A.· · · · ·Not that I recall as I sit here, but I
`
`·9· ·never endeavored to determine that.· I imagine I
`
`10· ·could, given enough time.
`
`11· ·Q.· · · · ·Okay.· Well, let's take a look at the
`
`12· ·declaration itself if you don't mind.
`
`13· · · · · · · Do you have that open still?
`
`14· ·A.· · · · ·I do.
`
`15· ·Q.· · · · ·Okay.· And I would like to take a look
`
`16· ·at -- let's take a look at section 4.
`
`17· ·A.· · · · ·All right.
`
`18· ·Q.· · · · ·It starts on page 9.· Let me know when
`
`19· ·you're there.
`
`20· ·A.· · · · ·I'm there.
`
`21· ·Q.· · · · ·What is this section about?
`
`22· ·A.· · · · ·So this is titled "Legal Framework."· It
`
`23· ·is expressing my understanding of the law as it's
`
`24· ·been explained to me over the years and as it relates
`
`25· ·to my analysis as presented here.
`
`Intel Exhibit 1044 - 23
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 24
`
`·2· ·Q.· · · · ·Okay.· So it's your understanding of the
`
`·3· ·legal principles that you were going to apply as part
`
`·4· ·of your opinion; is that fair?
`
`·5· ·A.· · · · ·That's right.· Given that I'm not a lawyer
`
`·6· ·and have no legal training of any sort, this is what
`
`·7· ·I have learned over the years in these efforts.· This
`
`·8· ·is my understanding that I'm attempting to apply.
`
`·9· ·Q.· · · · ·And so, for example, this would reflect
`
`10· ·your understanding of the obviousness analysis that
`
`11· ·the law would require for an expert to provide an
`
`12· ·opinion; is that fair?
`
`13· ·A.· · · · ·Yes, I assume.· I haven't reviewed this
`
`14· ·portion.· I was focusing on the technical content in
`
`15· ·my review.· But, yeah, there must be a discussion of
`
`16· ·my understanding of obviousness in there -- in here,
`
`17· ·I would assume.
`
`18· ·Q.· · · · ·Well, can I assume, then, if you had a
`
`19· ·legal principle that you were going to use as part of
`
`20· ·your opinion, you would have discussed it in this
`
`21· ·section?· Is that true?
`
`22· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`23· ·A.· · · · ·It was certainly my intent to express it.
`
`24· ·Yes.· You know, whether there was something that
`
`25· ·maybe I had run across so often and seen
`
`Intel Exhibit 1044 - 24
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 25
`
`·2· ·uncontroversial that I relied upon and didn't discuss
`
`·3· ·here, I guess that's possible.· But this is a fairly
`
`·4· ·long version of discussing my understanding of the
`
`·5· ·law.
`
`·6· · · · · · · And so, yeah, I would expect that
`
`·7· ·everything I relied upon, I was trying to put in
`
`·8· ·here.
`
`·9· ·Q.· · · · ·And you didn't, like, for example, put
`
`10· ·legal principles in some later section; right?
`
`11· · · · · · · This is where the legal principles would
`
`12· ·go if you discussed them; is that fair?
`
`13· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`14· ·A.· · · · ·That's what I intended, to get them all in
`
`15· ·one place.· You know, it's possible that I referred
`
`16· ·to some legal principle later on that wasn't
`
`17· ·specifically mentioned here.· But I would not
`
`18· ·normally have intended to do that.
`
`19· ·Q.· · · · ·And I think if you wanted a couple of
`
`20· ·examples, paragraph 21, 22, 23, 24, 27, these are
`
`21· ·talking about, like, an obviousness analysis; is that
`
`22· ·true?· And feel free to take a look at that.
`
`23· ·A.· · · · ·Yeah.· On quick review, yes, it's
`
`24· ·discussing at least obviousness; right.
`
`25· ·Q.· · · · ·And you've done this a lot, so I assume
`
`Intel Exhibit 1044 - 25
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 26
`
`·2· ·that these are the principles you're applying when
`
`·3· ·you're doing your obviousness analysis; is that fair?
`
`·4· ·A.· · · · ·Yeah.· I think that's fair.
`
`·5· ·Q.· · · · ·Okay.· And let's take a look at the --
`
`·6· · · · · · · MR. SCHMIDT:· Objection to form to
`
`·7· · · · that last question.· Sorry.
`
`·8· ·BY MR. NASH:
`
`·9· ·Q.· · · · ·Let's take a look at paragraph 31.
`
`10· · · · · · · And do you see that first sentence, "I
`
`11· ·understand that the obviousness analysis requires a
`
`12· ·comparison of the properly construed claim language
`
`13· ·to the prior art on a limitation-by-limitation
`
`14· ·basis"?
`
`15· · · · · · · Do you see that?
`
`16· ·A.· · · · ·Yes, I do.
`
`17· ·Q.· · · · ·Okay.· And you applied that understanding
`
`18· ·in this case as well?
`
`19· ·A.· · · · ·That's what I endeavored to apply.· Yeah.
`
`20· ·It's -- I guess, from a practical point of view, you
`
`21· ·know, this is usually in the context of post-Markman.
`
`22· ·So whether there actually is an agreed claim
`
`23· ·construction or not is a separate issue.
`
`24· ·Q.· · · · ·Okay.· So you understand -- that was kind
`
`25· ·of my next question is, you understand what a
`
`Intel Exhibit 1044 - 26
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`·2· ·construed claim would be; right?
`
`Page 27
`
`·3· ·A.· · · · ·Well, I think it's more of a question of
`
`·4· ·properly construed from the point of view of -- I
`
`·5· ·think claim language is always going to be construed.
`
`·6· ·It's a question of whether it's been construed by an
`
`·7· ·authority, which is probably what you're getting at.
`
`·8· · · · · · · You and I read a claim, and there's going
`
`·9· ·to be a construction in our heads, but, you know,
`
`10· ·ultimately, if there are terms that are argued over,
`
`11· ·I guess what I meant by "properly construed" is where
`
`12· ·an authority has resolved any disagreements.
`
`13· ·Q.· · · · ·Sure.· And I think when you're saying
`
`14· ·we've got a construction in our head, what we would
`
`15· ·typically use is a, like, ordinary understanding of
`
`16· ·the words as we see them; is that fair?
`
`17· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`18· ·A.· · · · ·You know, that's certainly the starting
`
`19· ·point.· But as an engineer, you know, a lot of times
`
`20· ·there are words that don't have their normal meanings
`
`21· ·or are defined in the patent, et cetera.
`
`22· · · · · · · So having read the specification and then
`
`23· ·read the terms, I certainly -- I start by assuming
`
`24· ·plain and ordinary meaning unless there's something
`
`25· ·about the context that pushes me in a different
`
`Intel Exhibit 1044 - 27
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 28
`
`·2· ·direction.
`
`·3· ·Q.· · · · ·Okay.· Well, I'm trying to make sure I
`
`·4· ·understand which meanings you've applied here.
`
`·5· · · · · · · So if you used a construction in analyzing
`
`·6· ·the claims, would you have reflected it in this
`
`·7· ·declaration that you provided?
`
`·8· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`·9· ·A.· · · · ·Give me just a moment, please.· I think
`
`10· ·that I -- my recollection is that the PTAB hasn't
`
`11· ·issued a construction or -- of any of these terms. I
`
`12· ·apologize -- I'm embarrassed if they have -- if they
`
`13· ·have, I expect that I've relied upon it.· I don't
`
`14· ·recall doing that.
`
`15· · · · · · · In which case, it would have been my
`
`16· ·understanding as a person of ordinary skill in the
`
`17· ·art understood the terms to be constructed.
`
`18· ·Q.· · · · ·Okay.· Because you don't have a section in
`
`19· ·here called "claim construction" for example; right?
`
`20· ·I just want to make sure I didn't miss it.
`
`21· ·A.· · · · ·Yes.· Typically, in my experience, there
`
`22· ·would be a section on claim construction if the two
`
`23· ·parties had gone through the process of proposing
`
`24· ·terms that should be construed and figured out where
`
`25· ·the overlap is and where the agreement is.
`
`Intel Exhibit 1044 - 28
`
`
`
`·1· · · · · · (W. Mangione-Smith - 9/16/2021)
`
`Page 29
`
`·2· · · · · · · In these proceedings, I have not seen that
`
`·3· ·take place.· So, yeah, I do not have a section called
`
`·4· ·"claim construction" that analyzes a competing set of
`
`·5· ·arguments.
`
`·6· ·Q.· · · · ·Right.
`
`·7· · · · · · · And if you had been using some particular
`
`·8· ·construction from a party or from the PTAB, you would
`
`·9· ·have identified that up front; is that fair?
`
`10· · · · · · · MR. SCHMIDT:· Objection.· Form.
`
`11· ·A.· · · · ·Maybe.· I guess it depends on what the
`
`12· ·construction was.· For example, if it was -- if it
`
`13· ·was a term where I thought both parties were using
`
`14· ·plain and ordinary meaning as I understood it and I
`
`15· ·thought that was the right construction, I very well
`
`16· ·may not mention it -- may not have mentioned it.
`
`17· · · · · · · I can't think of anyplace where I
`
`18· ·adopted -- where I was given a construction that was
`
`19· ·part of, you know, the negotiations, the arguments
`
`20· ·over terms and applied it but didn't mention that,
`
`21· ·which, I guess, to further
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