`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - - - - - x
`APPLE INC.,
`: Case No. IPR2021-00600
`Petitioner, : U.S. Patent No. 10,298,451
`:
`v.
`KOSS CORPORATION, :
`Patent Owner. :
`- - - - - - - - - - - x
`
`Deposition of JEREMY COOPERSTOCK, Ph.D.,
`Conducted Virtually
`Friday, November 5, 2021
`3:47 p.m. EST
`
`Job No.: 407369
`Pages: 1 - 80
`Reported by: Pamela L. Beck
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`APPLE 1025
`Apple v. Koss
`IPR2021-00255
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`Transcript of Jeremy Cooperstock, Ph.D.
`Conducted on November 5, 2021
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`2
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`Deposition of JEREMY COOPERSTOCK,
`Ph.D., Conducted Virtually:
`
`** ALL PARTIES ATTENDED REMOTELY **
`
`Pursuant to Notice, before Pamela L.
`Beck, Notary Public in and for the Commonwealth of
`Pennsylvania.
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` A P P E A R A N C E S
`ON BEHALF OF THE PETITIONER:
` SETH M. SPROUL, ESQUIRE
` FISH & RICHARDSON P.C.
` 12860 El Camino Real, Suite 400
` San Diego, California 92130
` (858) 678-5070
`
` RYAN CHOWDHURY, ESQUIRE
` JOEL HENRY, ESQUIRE
` FISH & RICHARDSON P.C.
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` (202) 638.6554
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`A P P E A R A N C E S C O N T I N U E D
` ON BEHALF OF THE PATENT OWNER:
` LAUREN MURRAY, ESQUIRE
` MARK G. KNEDEISEN, ESQUIRE
` K&L GATES LLP
` 210 Sixth Avenue
` Pittsburgh, Pennsylvania 15222
` (412) 355.6342
`
` ALSO PRESENT:
` IAN ROWE, AV Technician
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`Transcript of Jeremy Cooperstock, Ph.D.
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` C O N T E N T S
`EXAMINATION OF JEREMY COOPERSTOCK, Ph.D. PAGE
` By Ms. Murray 6
` By Mr. Sproul 74
` By Ms. Murray 76
`
` E X H I B I T S
`
`J. COOPERSTOCK DEPOSITION EXHIBIT PAGE
`Exhibit 1002 Issue Notification 20
`Exhibit 1003 Declaration of Dr. Jeremy 8
` Cooperstock
`Exhibit 1004 Pub. No.: US 2007/0033197 13
`Exhibit 1005 Pub. No.: US 201110289229 39
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` P R O C E E D I N G S
` REPORTER: Mr. Cooperstock, do you hereby
`acknowledge that your testimony will be true under
`the penalties of perjury?
` THE WITNESS: I do.
` JEREMY COOPERSTOCK, Ph.D.
` the witness herein, was examined and
` testified under penalty of perjury as follows:
` EXAMINATION
`BY MS. MURRAY:
` Q Good afternoon, Dr. Cooperstock. I'm
`Lauren Murray. How are you?
` A Good afternoon, Ms. Murray. Nice to meet
`you.
` Q Nice to meet you too. You've been
`deposed before, correct?
` A Yes, I have.
` Q Just earlier today. If there's ever a
`time you don't understand my questions or you can't
`hear my question, please let me know, I'm happy to
`rephrase it or ask it again. Is that okay?
` A Very good.
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` Q Great. Thank you. Now, how did you
`prepare for today's deposition?
` A I reviewed my declaration and went over
`the prior art references and discussed the materials
`with counsel.
` MR. SPROUL: I want to caution the
`witness not to reveal privileged communications or
`the content of those discussions.
` Q And are you still -- it looks like you're
`in the San Diego office of Fish & Richardson still?
` A Yeah. I was hoping to get back to
`Montreal over lunch, but it was --
` Q And who is with you?
` A Seth Sproul.
` Q Okay. Are you connected to the internet
`right now?
` A I am. That's how I'm videoconferencing
`with you.
` Q Is it a wired or a wireless connection?
` A Wired power, wireless internet.
` Q Okay. Do you have Exhibit 1003?
` A I believe that's my declaration.
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` AV TECHNICIAN: Counsel, would you like
`me to put that on the screen?
` MS. MURRAY: That would be great. So
`this is for the '451 patent. It's IPR, the one
`ending in 600, Exhibit 1003.
` (There was a discussion off the record.)
` (Exhibit 1003 was marked for
`identification.)
` MR. SPROUL: Just to note, in order to
`return to Canada, Dr. Cooperstock has to have a
`negative COVID test. So the testers will be here at
`1:30, give or take, so we'll need to take hopefully
`a five-minute break around that time, whenever it is
`they show up.
` MS. MURRAY: That's fine. Just let us
`know, and we'll take a short break then.
`BY MS. MURRAY:
` Q So I'm looking at the screen now. This
`is Exhibit 1003 that I was referring to.
` Dr. Cooperstock, do you recognize Exhibit
`1003?
` A Yes, I do.
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` Q And what is this Exhibit 1003?
` A This is my declaration on the '451
`patent, the second declaration that I provided on
`the same matter.
` Q If we could look at pages 125 through 126
`of this declaration. This is a list of matters. Is
`this the list of matters where you have given expert
`testimony?
` A Partially.
` Q So it's not a complete list of your
`expert testimony experiences?
` A No. It's a list ending at October 2020,
`and it doesn't exclusively consist of my work as an
`expert witness.
` Q Okay. And in this list, does the
`testimony that you provided regarding the validity
`of U.S. patents always conclude that the claims are
`invalid?
` A In the cases that are listed here, that
`has been my experience.
` Q Why is that?
` MR. SPROUL: Objection, form.
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` A The matters that I have consulted on as
`an expert witness were ones in which the claims in
`the patents were already covered by prior art.
` Q Have you ever given sworn testimony that
`a claim of a U.S. patent is valid?
` A I don't believe so.
` MS. MURRAY: Can we look now at paragraph
`15 of that same exhibit, Exhibit 1003.
` AV TECHNICIAN: Counsel, apologies, what
`page would that be on?
` MS. MURRAY: Page 10 of the pdf I
`believe.
` AV TECHNICIAN: It should be on the
`screen now.
` Q Dr. Cooperstock, can you summarize your
`opinions in this paragraph 15.
` A To summarize, I've concluded that Claims
`1, 6, 12, 13 and 16 to 20 of the '451 patent are
`obvious over Scherzer and Subramaniam.
` And Claims 2, 7 through 10 and 21 are
`obvious over Scherzer and Subramaniam and Baxter.
` Claims 3 and 4 are obvious over Scherzer,
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`Subramaniam and Drader.
` Claim 5 is obvious over Scherzer,
`Subramaniam and Ramey.
` Claims 11 and 15 are obvious over
`Scherzer, Subramaniam and Montemurro.
` And Claim 14 is obvious over Scherzer,
`Subramaniam and Gupta.
` Q How did you determine that these claims
`are obvious?
` A I applied the analysis that's described
`in my declaration with regard to the claim language
`and the prior art references, and my understanding
`of the knowledge and motivations of a person of
`ordinary skill as of the claimed priority date.
` Q How did you identify the references that
`are listed here in paragraph 15?
` A Those were provided to me.
` Q Who provided them?
` A Attorney for Petitioner.
` Q Did you consider other references as
`well?
` A Not to the best of my knowledge.
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` Q These references that are in paragraph
`15, are they the closest prior art to the claimed
`inventions?
` MR. SPROUL: Objection, form.
` A How would you characterize degree of
`proximity?
` Q Looking at paragraph 175 of your
`declaration -- or actually, it's paragraph 172, I
`believe, and that looks like page 113 in the pdf.
` MR. SPROUL: What paragraph number are
`you referencing, Ms. Murray?
` MS. MURRAY: Paragraph 172.
` MR. SPROUL: Thank you.
` Q Is this the obviousness analysis for --
`let me rephrase that.
` In paragraph 172, you list four factors.
`Did you consider these four factors in determining
`the obviousness in paragraph 15 of your declaration?
` MR. SPROUL: Objection, form.
` A The factors that are identified in
`paragraph 172 of my declaration constitute the
`factors that I have in mind as I carry out my
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`analysis. And with respect to the conclusions that
`I have reached as summarized in paragraph 15, the
`key factors that were apparent to me are those
`identified as 1, 2 and 3 of the obvious
`determination.
` Q With respect to No. 2, did you identify
`differences between Scherzer and Claim 1?
` MR. SPROUL: Could you read back the
`question, or repeat your question, please.
` (The record was read back by the
`Reporter.)
` Q The Scherzer reference, which is Exhibit
`1004.
` (Exhibit 1004 was marked for
`identification.)
` AV TECHNICIAN: Please stand by.
`Counsel, would you like Exhibit 1004 on the screen?
` MS. MURRAY: If that would be helpful to
`Dr. Cooperstock.
` THE WITNESS: No, that's not necessary.
` MS. MURRAY: Thank you, Ian. I don't
`think we need it at this point, then.
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` A So in brief, the answer is the '451
`patent in Scherzer are obviously different patents.
`And there are elements of the teachings of Scherzer
`that are distinct from claims in the '451 patent,
`and vice versa. And this is what motivated my
`combination of Scherzer and Subramaniam.
` Q Did you describe the differences between
`Claim 1 and Scherzer in your declaration?
` MR. SPROUL: Objection, form.
` A I'm not clear on what you consider as
`being a description of the differences.
` Q I'm referring to factor 2, which you
`identified as a key factor to your analysis, the
`differences between the prior art and the asserted
`claims.
` A Yes, but in my analysis, I considered
`combinations, not just references or prior art on
`its own or on their own. So when you're asking me
`whether I identify differences between Scherzer and
`Claim 1, I'm not sure how that is relevant to my
`analysis, given that my considerations were of prior
`art and combinations of prior art references.
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` Q You had said that factors 1, 2 and 3 were
`the key factors in your analysis. With respect to
`factor 4, did you consider any secondary
`considerations?
` A I felt that with the claim limitations of
`the '451 patent being addressed thoroughly by the
`prior art, and, thus, not being novel, and rather
`the claims were obvious, that the secondary
`considerations of commercial success were not
`something I had to further investigate. Because I
`had already established that given the first three
`factors, the claims of the '451 patent were not
`patentable.
` Q Looking back at paragraph 15 of your
`declaration. In this bulleted list, there are
`sometimes two references listed and other times
`three references listed.
` How did you decide whether to rely on two
`references or three references?
` A The process that I go through is not one
`of choosing a number, and saying for this claim, I
`want to have a specific number of references.
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`Rather, the question is, what combination makes
`sense here? What would a POSITA have considered at
`the time in meeting a need and solving the problem
`and developing a system?
` And in cases -- well, in the cases of the
`claims here, the combination of sometimes two,
`sometimes three references are the basis, or form
`the basis of how a POSITA would have thought to
`develop or design a particular system.
` Q Anything else to add there?
` A No, I'm fine with my answer.
` Q Again in paragraph 15, Scherzer is listed
`as the primary reference, the first reference, and
`Subramaniam is listed as the secondary reference.
` Why is that? Why is Scherzer listed as
`the primary reference and Subramaniam as the
`secondary reference?
` A So the distinction of primary and
`secondary references is somewhat not in my purview
`as an expert as having a strong distinction, when
`the combination of the two references is used in
`addressing, or in the analysis of each of the
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`claims. It's not as if in one situation I rely only
`on Scherzer and rarely bring in Subramaniam. I'm
`relying on the combination of the two of them to
`address each of the claim limitations.
` Q In the IPR 2021-00255 for which your
`declaration was on the screen initially, also on the
`'451 patent, the Scherzer reference was also listed
`as a grounds.
` In that declaration, Scherzer was listed
`as a secondary reference and Brown as the primary
`reference. Is there a reason?
` A My understanding from counsel for
`Petitioner is that Patent Owner raised some
`arguments as to priority dates, or dates of claimed
`invention that ostensibly predated Brown. And in
`order to be sure that I was conducting an analysis
`that took full account of the prior art, I went to
`earlier references. And in this case, turned to
`Subramaniam in addressing, in combination with
`Scherzer, some of the elements that Brown was
`responsible for in the first IPR.
` Q Why was Brown listed first in the other
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`IPR for the '451 patent?
` MR. SPROUL: Objection, form.
` A Do I have a copy of -- I don't believe I
`have a copy. I can pull it up from my computer
`or --
` MS. MURRAY: It's in the Dropbox, Ian, if
`you want to bring it up on to the screen. That
`would be great.
` AV TECHNICIAN: Yes, counsel. Please
`stand by.
` MS. MURRAY: I'm dragging it over to the
`chat now.
` MR. SPROUL: Ms. Murray, can we take a
`quick break for the COVID test?
` MS. MURRAY: Of course.
` MR. SPROUL: Thank you. We'll be back
`hopefully in five minutes.
` MS. MURRAY: Okay. Thank you.
` (Whereupon, there was a recess in the
`proceedings.)
`BY MS. MURRAY:
` Q I think Ian was going to pull up the
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`exhibit that we were referring to. It's your
`declaration for the '451 patent, but in IPR
`2021-00255.
` A And can I interrupt with that?
` Q Yes.
` A Okay. So the analysis that I performed
`in the first IPR also used the combination of Brown
`and Scherzer for all of the claims that I discussed
`or that I analyzed. And the narrative in my
`analysis in the first IPR was centered around or
`began with the functionality of exchanging of
`credentials, or access credentials to network assets
`as taught by Brown as the initial functionality of
`interest. And supplemented by the functionality of
`Scherzer to provide a similar type of benefit to the
`user, which is improved networking access through
`the teachings of Scherzer.
` Whereas, in the second IPR, the narrative
`in the analysis that I went through begins with the
`desirability of the functionality of having expanded
`access to other networking assets or wireless LAN
`access rights to regions or access points that are
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`not owned by the user, as the teachings of Scherzer
`and supplemented by the additional benefits and
`complimentarity of technologies taught by
`Subramaniam of being able to exchange access
`credentials between the users' devices.
` Q Looking at -- it's Exhibit 1003 in the
`present IPR, so the 600 IPR, and paragraph 12. You
`say the applicant submitted an inventory declaration
`stating that the invention date was May 14th, 2012.
` Do you see that?
` A Yes, I do.
` Q Where did the applicant say the invention
`date for the '451 patent was May 14th, 2012?
` A I believe that was in the prosecution
`history.
` MS. MURRAY: Ian, can we open the
`prosecution history for the '451 patent. It's
`Exhibit 1002.
` AV TECHNICIAN: Please stand by. The
`exhibit should now be on the screen.
` (Exhibit 1002 was marked for
`identification.)
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` Q Dr. Cooperstock, can you identify where
`in the prosecution history the applicant declared an
`invention date of May 14th, 2012?
` A We'll see if I can find that. Can I have
`control again.
` AV TECHNICIAN: Dr. Cooperstock, I
`believe you are controlling the document.
` A There we go. No, I'm mistaken.
` Q On page 50 of that pdf, there is a
`declaration of Michael J. Koss under 37 C.F.R. ยง
`1.131.
` A Oh, yes, why wasn't it finding the 2012
`when I searched for it? It's right there.
` Q In this declaration, where does the
`applicant assert an invention date of May 14th,
`2012?
` A Yeah, so those are the dates that appear
`in the Koss declaration. Is that Exhibit A on --
`I'm having trouble with the small scale scrolling
`within the very large document. So in paragraphs 4
`and 5, and I believe a later paragraph as well, the
`earliest date that is stated in the Koss declaration
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`is May 14th, 2012.
` Q So did you interpret prior to May 14th,
`2012 as being on May 14th, 2012?
` A I have no knowledge of what the actual
`date that the applicant Koss Corporation and its
`inventors claimed to have been the date of the
`purported invention. So all I can go by here is the
`date -- the earliest date that is listed in the
`declaration.
` Q So your assessment of the invention date
`is based on the earliest date listed in this
`declaration?
` A Because I neither worked for Koss nor was
`present at the time that Koss made the declaration,
`nor the time that Koss and its inventors were
`working on the claimed invention, I have no ability
`to assess or make even an educated guess as to what
`date their claimed invention would be, other than
`the earliest listed date on the declaration.
` Q Looking now at paragraph 22 of Exhibit
`1003. That's page 15, pages 14 to 15 of the pdf.
`Why did you mention the preliminary amendment in
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`your declaration?
` A This is a summary of the prosecution
`history of the '451 patent, and that preliminary
`amendment that Patent Owner filed is part of that
`prosecution history.
` Q The prosecution history includes two
`preliminary amendments. Is there a reason the
`declaration only mentions one of them?
` A I'll have to spend some time reading the
`prosecution history to be able to form an answer to
`that.
` Q Let's look at paragraph 26 of Exhibit
`1003. Does this paragraph accurately state your
`view as to the skill level of a POSITA for the '451
`patent?
` A Yes, it does.
` Q Did you apply this standard in forming
`your opinions and conclusions in paragraph 15 of
`your declaration?
` A That is correct.
` Q Does a person with a Bachelor's degree in
`computer science and two years of experience in
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`local area networks qualify as a POSITA for the '451
`patent?
` A That would depend very much on what
`specific areas of computer science they studied, and
`what sort of experience in wireless
`communications -- sorry, two years of experience in
`wireless communications across short distance or
`local area networks is fine. The computer science
`element really is the piece where it would depend on
`what areas they specialized on in their studies.
` Q How does your experience compare to the
`skill level of a POSITA?
` A I would say that I meet or exceed that
`standard.
` Q In paragraph 43 of your declaration, the
`first sentence describes a Scherzer reference, which
`is Exhibit 1004. Paragraph 43 starts on page 30 of
`the pdf.
` Does this first sentence accurately
`reflect your understanding of Scherzer?
` A Yes, this is a good summary of the
`teachings of Scherzer.
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` Q And the second sentence, does this
`accurately reflect your understanding of Scherzer?
` MR. SPROUL: Objection, form.
` A Yes, given that I've qualified here that
`this requires a device to be registered with
`Scherzer's service. So using a software client that
`allows communication with an application server,
`this is consistent with Scherzer that would require
`a user to register a device in order to make use of
`the facilities or the functionality taught by
`Scherzer.
` Q Paragraph 43 of your declaration uses the
`term registered users. What is a registered user?
` A A registered user, based on Scherzer's
`description, would be a user who has provided
`registration information to the server.
` Q Can you provide an example of a
`registered user in this context.
` A Well, a user who provides their access
`point information to the server would be a
`registered user.
` Q In saying a user who, do you mean a user
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`is a person?
` A Ultimately I think that makes sense. I
`think you -- even if you considered a company as
`being an entity that wants to benefit from the
`teachings of Scherzer, that company would ultimately
`have to share access credentials or access point
`information via a user of the system. And that user
`of the system would be a human being.
` Q How does a user become a registered user
`in Scherzer?
` A In paragraph 44 of my declaration, I
`explain how Scherzer describes two techniques of
`obtaining the software client on a new device. And
`this is a prerequisite to the user becoming a
`registered user, because registration requires
`providing information to the server regarding the
`user's access point that they wish to make available
`to other users. And, thus, that is the first step
`in how a user becomes a registered user, is by
`obtaining the software client.
` Q What are the additional steps, if any?
` A Well, the next step would be to make use
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`of -- well, install the software client that's being
`obtained via hard media, like a CD sent through the
`mail. It would have to be installed on the
`user's -- on one of the users' devices. And then
`making use of that software to provide the -- to
`provide the access information to the server.
` I just want to check to see whether, in
`fact, the software client is necessary for
`registration. I take that back. I don't see
`Scherzer explicitly stating that the use of the
`software is necessary for registration. Scherzer
`only describes the provision of registration
`information to the server. Presumably that could be
`through the software, but it might not necessitate
`the use of the software in order to register.
` Q What is the user registering -- what is
`the purpose of registration?
` A Well, Scherzer's system relies on having
`a server with access point information to devices
`that are -- or access points, rather, that are to be
`shared by the community of users.
` Q And is it your opinion that a user could
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`register with Scherzer's service without downloading
`the Scherzer software?
` MR. SPROUL: Objection, form.
` A So Scherzer does not seem to explicitly
`require that registration go through the software.
`It would seem to be a natural and obvious choice of
`implementation, but it seems that Scherzer would
`allow for either registration -- or either an
`implementation in which registration requires the
`use of the software, or potentially without using
`the software to register, to provide one's access
`point information to the server.
` Q Looking back at the second sentence in
`paragraph 3, which states: This requires a device
`to be registered with Scherzer's service using a
`software client -- paragraph 43.
` A 43, yes, I see that. And on rereading
`Scherzer here, it's obvious that Scherzer requires
`that the user have the software in order to make use
`of the Scherzer system, in order to gain access
`information or the table of all of the different
`access points to which a user might wish to connect.
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`That's provided through the Scherzer software.
` But in order to register, I don't see an
`explicit statement in Scherzer that requires that
`registration take place only through the software.
` Q So connecting to the access points of
`other registered users requires the Scherzer
`software, however, the Scherzer software is not
`required to register.
` Is that an accurate statement?
` A No, no, that's not what I said. In order
`to gain access to all of the access points that are
`registered with the Scherzer system, or on the
`Scherzer application server -- is it the application
`server or just server? I just want to be clear in
`my terminology. Yes, the application server. So in
`order to acquire access information for network
`access points that are made available, the client
`software is installed.
` So to benefit from the full services of
`the Scherzer system, which provides for access to
`all of the access points of the user community of
`Scherzer system, the user would have to download the
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`Scherzer software.
` Q Could a device without the Scherzer
`software get access to the access points of other
`registered users in Scherzer's system?
` A I would just ask you to repeat the
`question.
` Q Could a device without the Scherzer
`software get access to the access points of other
`registered users in Scherzer's system?
` A When you end your sentence with in
`Scherzer's system, do you mean using Scherzer's
`software, or do you mean accessing access points of
`users who are part of the user community that is
`using Scherzer's system?
` Q Accessing access points of other users
`who are part of the community.
` A In that case, yes, Scherzer is explicit
`in describing how users who are not yet registered
`can gain access to the network resources.
` Q Where does Scherzer describe that?
` A Yes, in paragraph 16, the second sentence
`of Scherzer, in some embodiments, a temporary user
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`contribution account is established, for example,
`for a trial period. So I read that as considering
`the possibility that a user who has not yet
`registered with the system can gain access to one of
`the access points in the Scherzer system. This may
`be a way of encouraging users to join the community.
` Q How does a user acquire a temporary user
`contribution account?
` A It could be by their MAC address, for
`example.
` Q You mentioned a user contribution
`account. What is a user contribution account?
` A I don't believe I provided a definition
`in my declaration for a user contribution account.
`And Scherzer does not seem to provide a definition
`either, only describing it as -- by examples of
`various embodiments of things that the user
`contribution account may involve with respect to
`things like accessibility, or what is added to the
`contribution account balance, for example.
` Q Paragraph 29 of your declaration mentions
`a user contribution account.
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` MR. SPROUL: Is there a question pending?
` Q In paragraph 29, the user contribution
`account that you reference, what is the purpose of
`the user contribution account in paragraph 29 of
`your declaration?
` MR. SPROUL: Objection, form.
` A As I don't have a definition for the user
`contribution account, I'm left with the examples
`provided by Scherzer and that are described in some
`embodiments. So they can -- for example, in
`paragraph 17 of Scherzer, the user contribution
`account tracks the balance of bandwidth provided by
`a user, by the user's access point to other users.
`And in some embodiments, user contribution accou