UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - - -x
`APPLE INC.,
`:
`Petitioner,
`:
`: Case No. IPR 2021-00255
`v.
`: U.S. Patent No. 10,298,451
`KOSS CORPORATION,
`:
`Patent Owner.
`- - - - - - - - - - - - -x
`
`Videotaped Virtual Deposition of JEREMY COOPERSTOCK, Ph.D.
`Wednesday, July 28, 2021
`7:52 a.m. CST
`
`Job No.: 382913
`Pages: 1 - 31
`Reported by: Tiffany M. Pietrzyk, CSR RPR CRR
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - - -x
`APPLE INC.,
`:
`Petitioner,
`:
`: Case No. IPR 2021-00255
`v.
`: U.S. Patent No. 10,298,451
`KOSS CORPORATION,
`:
`Patent Owner.
`- - - - - - - - - - - - -x
`
`Videotaped Virtual Deposition of JEREMY COOPERSTOCK, Ph.D.
`Wednesday, July 28, 2021
`7:52 a.m. CST
`
`Job No.: 382913
`Pages: 1 - 31
`Reported by: Tiffany M. Pietrzyk, CSR RPR CRR
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`Transcript of Jeremy Cooperstock, Ph.D.
`Conducted on July 28, 2021
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`2
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`Videotaped virtual deposition of JEREMY
`COOPERSTOCK, Ph.D., pursuant to notice, before
`Tiffany M. Pietrzyk, a Certified Shorthand Reporter,
`Registered Professional Reporter, Certified Realtime
`Reporter, and a Notary Public in and for the State
`of Illinois.
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`Conducted on July 28, 2021
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`3
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`A P P E A R A N C E S
`ON BEHALF OF THE PETITIONER:
`JENNIE HARTJES, ESQUIRE
`GOLDMAN, ISMAIL, TOMASELLI, BRENNAN & BAUM LLP
`200 South Wacker Drive
`22nd Floor
`Chicago, Illinois 60606
`312.881.5958
`
`and
`
`RYAN CHOWDHURY, ESQUIRE
`FISH & RICHARDSON P.C.
`1000 Maine Avenue SW
`Washington, D.C. 20024
`202.638.6554
`
`ON BEHALF OF THE PATENT OWNER:
`MARK G. KNEDEISEN, ESQUIRE
`MICHELLE L. WEAVER, ESQUIRE
`K&L GATES LLP
`210 Sixth Avenue
`Pittsburgh, Pennsylvania 15222
`412.355.6342
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`4
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`A P P E A R A N C E S C O N T I N U E D
`ALSO PRESENT:
`Vane Morrison, Planet Depos Remote
`Technician
`John Parkman, Planet Depos Videographer
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`5
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`C O N T E N T S
`EXAMINATION OF JEREMY COOPERSTOCK, Ph.D.
`By Mr. Knedeisen
`
`E X H I B I T S
`(Retained by counsel.)
`DEPOSITION EXHIBITS
`Exhibit 1002
`USPTO - Issue Notification
`Exhibit 1003
`Declaration of Dr. Jeremy
`Cooperstock
`Exhibit 1003(2) Declaration of Dr. Jeremy
`Cooperstock (2)
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`Transcript of Jeremy Cooperstock, Ph.D.
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`6
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`P R O C E E D I N G S
`THE VIDEOGRAPHER: This begins the video
`recorded deposition of Dr. Jeremy Cooperstock in the
`matter of Apple Incorporated versus Koss Corporation
`in the United States Patent and Trademark Office
`before the Patent Trial and Appeal Board, Case
`Number IPR 2021-00255.
`Today's date is July 28, 2021. The time on
`the video monitor is now 7:52 a.m. Central Daylight
`Time.
`
`The videographer today is John Parkman,
`representing Planet Depos.
`This video deposition is taking place
`remotely via Zoom videoconference.
`Would counsel please voice identify
`themselves, and state whom they represent.
`MR. KNEDEISEN: This is Mark Knedeisen and
`Michelle Weaver for patent owner Koss Corporation.
`MS. HARTJES: Jennie Hartjes on behalf of
`petitioner Apple, and with me today is Ryan
`Chowdhury.
`THE VIDEOGRAPHER: The court reporter today
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`Transcript of Jeremy Cooperstock, Ph.D.
`Conducted on July 28, 2021
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`7
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`is Tiffany Pietrzyk, also representing Planet Depos.
` Would the reporter please swear in the
`witness.
` (Witness sworn.)
`WHEREUPON:
` JEREMY COOPERSTOCK, Ph.D.,
`called as a witness herein, having been first duly
`sworn, was examined and testified as follows:
` EXAMINATION
`BY MR. KNEDEISEN:
` Q. Good morning, Dr. Cooperstock.
` A. Good morning, Mr. Knedeisen.
` Q. Can you hear me all right?
` A. I can.
` Q. All right. I am Mark Knedeisen.
` Do you understand you're under oath? Is
`there anything that prevents you from testifying
`truthfully today?
` A. No.
` Q. And you understand we're first going to
`depose you about the '451 patent; correct?
` A. That's what I understood.
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`8
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` Q. All right. Did you prepare for today's
`deposition?
` A. Yes, I did.
` Q. How did you prepare?
` A. I reviewed the materials in my declaration,
`the -- some of the background references, and had a
`brief skim on the POPRs.
` Q. And when did you perform this preparation?
` A. Well, there was preparation shortly after
`the signing of the declarations as I reviewed sort
`of the second pass-through and identified all errors
`that were minor -- minor -- some cases typos, or
`issues in the original patent that I had brought to
`counsel's attention.
` And over the last week, I did another
`skim-through of the materials again.
` Q. Did you say there were errors in the patent
`or errors in your declaration?
` A. There were errors in the prior art and some
`minor errors in the declaration as well.
` Q. So why don't we go through -- do you have
`what's Apple Exhibit 1003 for the 00255?
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`Transcript of Jeremy Cooperstock, Ph.D.
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`9
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` (Exhibit 1003, previously marked for
`identification, was retained by counsel.)
` A. Okay. So there are two copies of
`Exhibit 1003 in the files that I downloaded. One
`has --
` Q. Right.
` A. -- a 2 in front -- or 2 at the end, I should
`say, before the PDF. Can you identify which one I
`should be looking at?
` Q. I don't know the numbers and the names of
`the files. One of them would be your declaration
`for the '451 patent, and the other one would be your
`declaration for the '325. So ...
` A. Okay. The file names don't identify that.
`I have Exhibit 1003, Declaration of Dr. Jeremy
`Cooperstock, and Exhibit 1003, Declaration of
`Dr. Jeremy Cooperstock, with a 2.
` Q. Try the one without the 2.
` A. Okay. That's for '451.
` Q. Okay. You said there were errors in your
`declaration?
` A. Yes. If we go down to paragraph 80 and find
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`Transcript of Jeremy Cooperstock, Ph.D.
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`10
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`the page for this.
` Q. You said 80 as in eight zero?
` A. Sorry?
` Q. You said 80 as in eight zero?
` A. Eight zero, yes. So the top of page 52 in
`my numbering or 55 in the PDF.
` Q. Yeah, I'm there.
` A. So the heading number 2, combination of,
`Brown, Scherzer, and Gupta. There's a typo on
`Brown. That should not be with an E. That should
`just be B-r-o-w-n.
` And paragraph 94, fourth line from the end
`where it reads "beginning resources, but also
`consistent with Brown's teachings," I would strike
`"general wear and tear" on the first mobile
`electronic device.
` Q. Is that the only changes you have?
` A. Those are the only two for the '451. There
`are a number of additional ones for the '325.
` Q. Why would you strike "general wear and tear"
`in paragraph 94?
` A. I don't believe that having data transferred
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`Transcript of Jeremy Cooperstock, Ph.D.
`Conducted on July 28, 2021
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`11
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`into the device and storage of information in memory
`constitutes wear and tear on an electronic device.
`I would associate wear and tear more with manual
`operations.
`Q. So why did paragraph 94 originally refer to
`general wear and tear?
`A. I believe that there were templates of text
`that were used in multiple paragraphs, and
`copy/paste, sometimes going through, I wouldn't
`notice, oh, wait a minute. This is actually not
`applicable to this particular situation. And as
`such, the language would be retained from another
`paragraph.
`Q. Are you referring to another paragraph of
`your declaration for the '451 patent?
`A. There were writing taking place on both of
`them around the same time. Things, for example,
`describing the background, the skills of the POSITA,
`my experience, and so forth. So I can't recall
`offhand whether it came from the '451 or the '325.
`Q. So when you -- your testimony just referred
`to both of them. I assume you meant your
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`Transcript of Jeremy Cooperstock, Ph.D.
`Conducted on July 28, 2021
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`12
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`declarations for the '451 patent and the declaration
`for the '325 patent?
` A. I mean that as I was preparing both
`declarations, this was taking place at roughly the
`same time, and as such, if we talk about text from
`one paragraph that may have been copied over or
`retained in another, I can't tell you right now
`whether that body of text came only from within the
`'451 declaration or it may have come from the '325.
` Q. All right. So going back to your
`preparation, did you meet with any attorneys?
` A. Yes, I did.
` Q. And who did you meet with?
` A. I met with Ms. Hartjes. I met with
`Mr. Chowdhury. There were -- at one point, Rob
`Devoto from Fish & Richardson also joined. And
`there were two other attorneys from Ms. Hartjes'
`firm.
` Q. Who were they?
` A. I can't recall the names. Short-term name
`memory is really, really poor.
` Q. And when were these meetings?
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`13
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` A. That was Monday and Tuesday.
` Q. Of this week?
` A. Yes.
` Q. When were you retained for the '451 patent?
` A. I don't recall whether -- I expect it was
`last year.
` Q. Just, I mean your declaration is signed
`November 25th.
` A. Okay. So sometime last year. I don't
`recall when.
` Q. If you look at paragraph 5 of your
`declaration, it says you're being compensated for
`your work on an hourly basis. What is your hourly
`rate for the '451 patent declaration and testimony?
` A. $450.
` Q. Is it the same for -- strike that.
` You've prepared declarations for Apple in
`several IPRs of Koss patents; correct?
` A. That's correct.
` Q. Is there a separate engagement for each IPR?
` A. No. I believe all of the work being done in
`Apple v. Koss is covered under the same engagement.
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`14
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` Q. And so your hourly rate is the same for each
`matter?
` A. With Apple-Koss, yes.
` Q. Do you have a different hourly rate for
`different matters?
` A. Yes, I do.
` Q. Is it higher or lower than 450?
` A. Both. It depends on when I was engaged and
`what the case was.
` Q. So when would your rates be higher than $450
`an hour?
` A. When I have been working with some other
`firms in the last year and a half, my rates have
`been higher. And in earlier work that I did with
`Fish & Richardson, my rates were lower.
` Q. Why are your rates higher with the other
`firms?
` A. More recent work, more experience.
` Q. Do you know how much time you've worked on
`the '451 patent?
` A. I couldn't tell you.
` Q. Do you know how many hours you've worked
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`15
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`across all the IPRs involved in the Koss patents?
` A. I'd have to go back in the history of files
`to get a sense of that. I have numerous, numerous
`files that I'm working on in parallel. But I don't
`have a sort of sense as to how much was specific to
`one particular declaration.
` Q. All right.
` If you turn to paragraph 3 of your
`declaration, which is Apple Exhibit 1003, it says --
`first sentence says "I have been asked by
`petitioner's counsel to consider whether certain
`references teach or suggest the features recited in
`claims 1 to 21 of the '451 patent."
` Who asked you to consider whether certain
`references teach or suggest the features?
` A. I don't recall whether it was Ryan or Rob
`Devoto or another attorney at Fish & Richardson who
`first contacted me to look into these claim features
`of the patent, but it was somebody at Fish &
`Richardson.
` Q. And who selected the references that you
`considered?
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` A. That would have been the attorneys at Fish &
`Richardson, to the best of my knowledge.
` Q. Now, if you turn to paragraph 15 on page 6
`by your numbering, page 9 for the PDF, I believe,
`this summarizes your conclusions that the challenged
`claims are obvious; correct, paragraph 15?
` A. That's correct.
` Q. So how does your conclusion of obviousness
`in paragraph 15 relate to what you were asked to do
`in paragraph 3?
` A. By my consideration of the prior art
`references and a reading of the claim language in
`the claims noted in paragraph 15, I believe, my
`analysis applying my understanding of the knowledge
`of a person of ordinary skill as of the critical
`date for the patent in question led me to take the
`position that the claims were unpatentable at the
`time, given the prior art.
` Q. So what's the methodology that you went
`through to conclude that the claims were
`unpatentable, based on your consideration of the
`prior art?
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` A. I would be applying the knowledge of a
`person of ordinary skill at the time in considering
`the problems that were described in the '451, the
`'451 patent, and looking at the prior art to
`question whether the claims of the '451 were
`actually novel or had been covered already by
`references that were described in the -- or by the
`prior art references.
` Q. Are you familiar with the Apple HomePod
`speaker?
` A. Is that described in my declaration?
` Q. I don't think it is. It might -- I don't
`think it is.
` A. Okay. Well, if it's not in my declaration,
`then I'm not sure that I can recall
`encountering the-- you said Apple HomePod?
` Q. Correct.
` A. So to the best of my recollection, at
`present anyway, I haven't heard of the Apple
`HomePod.
` Q. I can assume -- is it correct that you've
`never used an Apple HomePod?
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` A. That is certainly correct.
` Q. Do you know if the Apple HomePod is an
`electronic device?
` A. Again --
` MS. HARTJES: Objection. Form.
` A. -- I have no knowledge of the Apple HomePod.
`I can't comment on anything to do with that.
` Q. Do you know if the Apple HomePod can connect
`to a wireless access point?
` MS. HARTJES: Objection. Outside of scope.
` A. As I responded previously, I have no
`knowledge of the Apple HomePod. Can't answer
`questions as to what it can or cannot do.
` Q. I just want to go through a couple more.
`Can a HomePod connect to a smartphone via a
`Bluetooth link?
` MS. HARTJES: Objection. Scope.
` A. Once again, I have no idea about the Apple
`HomePod can or cannot do.
` Q. Are you familiar with the Apple iCloud
`Keychain?
` MS. HARTJES: Objection. Scope.
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` A. Is that described somewhere in my
`declaration?
` Q. I don't think it is. I mean, I didn't do a
`word search, but I'm -- I don't recall seeing it.
` A. Okay. I'm familiar with Apple iCloud, and
`I'm familiar with Keychain. I'm not sure that I've
`encountered the Apple iCloud Keychain. I may have
`in my course of using an Apple MacBook, but I can't
`recall specifically.
` Q. Do you know what the Apple iCloud Keychain
`does?
` MS. HARTJES: Objection. Outside scope of
`direct.
` A. I would not be able to provide a coherent
`answer without studying that.
` Q. Do you know if the Apple iCloud Keychain
`servers store credentials for users' wifi networks?
` MS. HARTJES: Objection. Scope.
` A. Again, this is not something that I was
`asked to consider, so I can't give you an answer
`without taking time to investigate that.
` Q. So is it correct that you did not
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`investigate how the Apple HomePod works in the
`preparation of your report?
` A. As I responded earlier, I haven't considered
`anything to do with the Apple HomePod.
` Q. Is that because you weren't asked to
`consider it?
` A. Yeah. I investigate items that are relevant
`to the IPR in question and to the patent in
`question. If the term didn't appear in a claim or
`raised in a prior art reference, then I likely would
`not have turned my attention to consider that.
` Q. All right. So for this deposition, could
`you also get your other declaration, which would be
`the other exhibit, Apple 1003, which I guess will
`be -- I think we're up to -- this will be Koss 2014
`for this IPR. So Apple 1003 for the '305 IPR will
`be Exhibit Koss 2014.
` A. Just to clarify, you said '305 or '325?
` Q. Well, good point. It's IPR 00305. It's for
`the '325 patent.
` A. Sorry. Where is that number on the --
` Q. There should be -- one of the files will
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`21
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`be -- it's the other Apple Exhibit 1003.
` A. Right. But the number that you said with
`the '305, where do I see that?
` Q. It won't be on there, but that declaration
`was filed for IPR 2021-00305.
` A. Okay. As you stated, I don't see that on
`the declaration, but I do have the Exhibit 1003 --
`declaration of Dr. Jeremy Cooperstock, bracket, 2,
`closed brackets, before me.
` (Exhibit 1003(2), previously marked for
`identification, was retained by counsel.)
` Q. So the -- your declaration for the '325
`patent, that is the declaration you prepared for the
`'325 patent; correct?
` A. It's the declaration that deals with the IPR
`involving the '325 patent.
` Q. And if you go to page -- well, it's your
`numbering 89, I think it's page 92 of the file.
`It's dated December 14, 2020, with your signature;
`correct?
` A. Yes.
` Q. So I want you to -- if you could turn to
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`Conducted on July 28, 2021
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`22
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`page 87 by your numbering, paragraph 139 and 140.
`And if you could compare it to paragraphs 137 to 150
`of Exhibit Apple 1003, which is your declaration for
`the '451 patent. These two sections
`outline -- strike that.
` What were you describing in paragraphs 139
`and 140 of your declaration for the '325 patent?
` A. Paragraphs 139 and 140; correct?
` Q. Correct.
` A. Yes. So I was describing the definitions
`for obviousness as per the U.S. -- 35 USC section
`103.
` Q. And if you look at paragraphs 137 to 151 of
`your declaration for the '451 patent, which is
`exhibit Apple 1003, you would agree they're
`different; correct?
` A. Yes, they are different.
` Q. When I say they are different, I mean the
`two declarations are different; correct?
` A. Yes, the two declarations are different.
` Q. Why are they different?
` A. Well, they're different because they're
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`Conducted on July 28, 2021
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`23
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`dealing with different patents in question. One is
`dealing with the '325, and the other is dealing with
`the '451.
` Q. Did you apply a different standard for
`obviousness for the two patents?
` A. No, I did not.
` Q. Going back to Exhibit Apple 1003, which is
`your declaration for the '451 patent -- and could
`you turn to paragraph 25, which is on page 13 or 16?
` A. Paragraph 28?
` Q. 25. Under section C, Interpretation of
`Claim Terms. I'm in Apple 1003, your declaration
`for the '451 patent.
` A. Oh, I'm in the wrong -- it's very confusing
`having two references at the same time that are
`pretty identical. So page 16. Okay. Paragraph --
` Q. 16 of the PDF.
` A. Yes.
` Q. Do you see the -- I guess it's the
`second-to-last sentence. Says, "because I do not
`know at what date the invention as claimed was made,
`if ever, I have used the critical date of the '451
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`24
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`patent as the point in time for claim interpretation
`references." Do you see that?
` A. I do.
` Q. And if you turn to page 4, paragraph 12, the
`second-to-last line on page 4, which is page 7 of
`the PDF, says "applicant submitting an inventor
`declaration stating that the invention date was
`May 14, 2012." Do you see that?
` A. I do.
` Q. So why, in paragraph 25, did you say that
`you don't know the invention date as claimed?
` A. I can only report on what the information
`that's provided before me indicates. I don't have
`personal knowledge of when a particular patent was
`submitted or what the actual critical date is, so
`I'm stating here that I understand that the
`applicant has declared that this was the particular
`invention date, but I don't -- I can't testify to
`knowing that myself, knowing that that was in fact
`the invention date.
` Q. So did the applicant declare that May 14,
`2012, was the invention date?
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`25
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` A. As I've stated in paragraph 12, the
`applicant has submitted an inventor declaration
`stating that was the date of the invention, but I
`don't have personal knowledge of that.
` Q. You don't have knowledge of whether they
`stated it?
` A. No, I don't have personal knowledge of
`whether that was the invention date. I can state
`that that was when the applicant submitted -- or
`what the applicant submitted with regard to the
`invention date, but I don't -- I don't know that
`that was the invention date.
` Q. So why don't we turn to Exhibit 1002.
` (Exhibit 1002, previously marked for
`identification, was retained by counsel.)
` A. Okay. I'm assuming this is Exhibit 1002,
`'451 patent file history?
` Q. That's correct. I'm going to bring it up
`myself.
` So your declaration at paragraph 12 cites to
`pages 1557; is that correct?
` A. Sorry. What paragraph in my declaration?
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` Q. Paragraph 12 states "applicant submitting an
`inventor declaration stating that the invention date
`was May 14, 2012" and says Apple 1002, 50-57. So
`does 50-57 indicate pages 50 to 57 of exhibit Apple
`1002?
` A. Yes, that seems correct.
` Q. You want to look at pages 50 to 57 of
`exhibit Apple 1002 -- why you believe it says that
`applicant submitted a declaration stating that the
`invention date was May 14, 2012?
` A. I see in paragraph 3 the reference to that
`date, May 14, 2012, referred to in the section --
` (Reporter clarification.)
`BY MR. KNEDEISEN:
` Q. So, Dr. Cooperstock, I believe your answer
`referred to paragraph 3 of the declaration on
`page 50 of exhibit Apple 1002; is that correct?
` A. That's what I'm referring to, yes.
` Q. And there's a date, May 14, 2012, in
`paragraph 3; correct?
` A. That is correct.
` Q. And it refers to the date of an article by
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`27
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`Matthew Brodnick; correct?
` A. Yes, it does.
` Q. So in paragraph 3, does the applicant state
`that their invention date was May 14, 2012?
` A. The paragraph states that "the subject
`application is to show invention by the applicant."
`That's not explicitly, as you worded it, stating
`that it's the invention date, but it's showing
`invention by the applicant dated May 14, 2012.
` Q. Can you read paragraph 4 on page 50 of
`Exhibit Apple 1002?
` A. Yes.
` Q. Doesn't that state that Koss Corporation and
`its inventors conceived and reduced to practice the
`invention prior to May 14, 2012?
` A. That's what the paragraph says. That's
`Koss's declaration.
` Q. So why, in your paragraph 12 of your
`declaration, did you say that the inventors stated
`the invention date was May 14, 2012?
` A. That's the only date that was specified with
`respect to the invention. I don't see a date that
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`28
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`indicates an earlier date in the paragraphs 3 and 4
`that you referred to where another exact date was
`provided.
` Q. So did applicant submit a declaration in the
`prosecution of the '451 patent that says the
`invention date was May 14, 2012?
` A. That's the date that appears on the
`submission or the declaration by Koss. As I said, I
`don't have another date available in those sections
`of the history.
` Q. So is it your understanding that if somebody
`says they did -- they invented something prior to
`May 14, 2012, that therefore the invention date is
`May 14, 2012?
` MS. HARTJES: Objection. Form.
` A. I can't state another date because I wasn't
`provided in the materials here another earlier date,
`which is provided as May 14, 2012, on the
`declaration by Michael Koss.
` Q. But in your paragraph 12, you said applicant
`said that is the invention date. I'm just -- I
`don't understand why you would say that when the
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`Conducted on July 28, 2021
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`29
`
`declaration says it
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