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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
` _______________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _______________________
` APPLE INC.,
` Petitioner,
` v.
` OMNI MEDSCI, INC.,
` Patent Owner.
` _______________________
` U.S. Patent No. 9,651,533
` IPR Case No.: IPR2019-00916
` _______________________
` REMOTE DEPOSITION OF
` DUNCAN LEO MACFARLANE, PH.D., P.E.
`Thursday, April 16, 2020; 10:04 a.m. EST
`
`Job No.: 568049
`
`Pgs. 1 - 90
`
`Reported by: Cindy L. Sebo, RMR, CRR, RPR, CSR, CCR,
` CLR, RSA, Remote Counsel Court Reporter,
` LiveDeposition Authorized Reporter
` MAGNA LEGAL SERVICES
` (866) 624-6221
` www.MagnaLS.com
`
`Petitioner Apple Inc. - Ex. 1060, p. 1
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
` _______________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _______________________
` APPLE INC.,
` Petitioner,
` v.
` OMNI MEDSCI, INC.,
` Patent Owner.
` _______________________
` U.S. Patent No. 9,651,533
` IPR Case No.: IPR2019-00916
` _______________________
` REMOTE DEPOSITION OF
` DUNCAN LEO MACFARLANE, PH.D., P.E.
`Thursday, April 16, 2020; 10:04 a.m. EST
`
`Job No.: 568049
`
`Pgs. 1 - 90
`
`Reported by: Cindy L. Sebo, RMR, CRR, RPR, CSR, CCR,
` CLR, RSA, Remote Counsel Court Reporter,
` LiveDeposition Authorized Reporter
` MAGNA LEGAL SERVICES
` (866) 624-6221
` www.MagnaLS.com
`
`Petitioner Apple Inc. - Ex. 1060, p. 1
`
`
`
`Page 2
`
` Remote Deposition of DUNCAN LEO
`MACFARLANE, PH.D., P.E., taken by Counsel for
`Petitioner, held remotely before Cindy L. Sebo,
`Registered Merit Court Reporter, Certified Real-Time
`Reporter, Registered Professional Reporter, Certified
`Shorthand Reporter, Certified Court Reporter,
`Certified LiveNote Reporter, Real-Time Systems
`Administrator, Remote Counsel Court Reporter,
`LiveDeposition Authorized Reporter and Notary Public,
`beginning at approximately 10:04 a.m. EST, when were
`present on behalf of the respective parties:
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`Petitioner Apple Inc. - Ex. 1060, p. 2
`
`
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`Page 3
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` A P P E A R A N C E S:
` (All via video teleconference)
` Attorney for Petitioner:
` SIDLEY AUSTIN LLP
` THOMAS A. BROUGHAN III, ESQUIRE
` 1501 K Street, Northwest
` Washington, D.C. 20005
` 202.736.8314
` tbroughan@sidley.com
`
` Attorney for Patent Owner:
` BROOKS KUSHMAN P.C.
` JOHN S. LEROY, ESQUIRE
` THOMAS A. LEWRY, ESQUIRE
` 1000 Town Center, 22nd Floor
` Southfield, Michigan 48075
` 248.226.2754
` jleroy@brookskushman.com
` tlewry@brookskushman.com
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`Petitioner Apple Inc. - Ex. 1060, p. 3
`
`
`
` INDEX OF EXAMINATION
`
`Page 4
`
`DUNCAN LEO MACFARLANE
` EXAMINATION BY PAGE
` Mr. Broughan 6, 82
` Mr. LeRoy 80
`
` - - -
` INDEX TO EXHIBITS
` - - -
` (Exhibits Attached to the Original Transcript)
` MACFARLANE
` DEPOSITION
` EXHIBIT NUMBER DESCRIPTION PAGE
` 1 Declaration of Duncan L.
` MacFarlane, Ph.D., P.E.
` Bates stamped OMNI 2122 19
`
` 2 U.S. Patent Number 9,241,676 B2 46
`
` 3 U.S. Patent Application
` Publication US 2005/0049468 A1 60
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`Petitioner Apple Inc. - Ex. 1060, p. 4
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`
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` S T I P U L A T I O N S
`
`Page 5
`
` IT IS HEREBY STIPULATED AND AGREED
` by and between counsel no party to the litigation
` will object to the remote deposition on the grounds
` that the certified stenographer may not have the
` legal authority to swear in the witness.
`
` FURTHER STIPULATED AND AGREED that in lieu of
` the oath administered in person, the witness
` declares the testimony in this matter under the
` penalty of perjury.
`
` FURTHER STIPULATED AND AGREED that the
` certified stenographer is not physically present in
` the deposition room and will be reporting this
` deposition remotely.
`
` FURTHER STIPULATED AND AGREED all parties and
` their counsel consent to this arrangement and waive
` any objections to this manner of reporting.
`
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`Petitioner Apple Inc. - Ex. 1060, p. 5
`
`
`
` P R O C E E D I N G S
`
`Page 6
`
` Remote Deposition
` Thursday, April 16, 2020; 10:04 a.m.
`
` - - -
` DUNCAN LEO MACFARLANE, PH.D., P.E.,
` after having been first duly sworn remotely by the
` certified stenographer, was examined
` and testified as follows:
` - - -
` - - -
` EXAMINATION BY COUNSEL FOR PETITIONER
` - - -
` BY MR. BROUGHAN:
` Q. Good morning.
` Would you please state your name for
` the record?
` A. My name is Duncan Leo MacFarlane.
` Q. And, Dr. MacFarlane, you've had your
` deposition taken before?
` A. Yes.
`
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`Petitioner Apple Inc. - Ex. 1060, p. 6
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`Page 7
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` Q. Approximately how many times?
` A. Certainly over a dozen.
` Q. And what was the most recent time,
` approximately?
` A. It was the last time that we had a
` deposition in this -- in this matter.
` Q. So you're generally familiar with
` depositions, so I won't really go over the ground
` rules very much.
` I'll just say that this deposition is
` being taken by remote means, so we need to be extra
` careful not to speak over each other. And, in
` addition, if anything I say is unclear because it's
` garbled or you can't hear it or the question is
` just bad, let me know, please, and I will be happy
` to try to state it again more clearly or rephrase
` the question in a manner that's more understandable
` for you.
` Do you understand?
` A. Yes, Tom, I do.
` Your volume is just a little low, so --
` I can hear you --
`
`Petitioner Apple Inc. - Ex. 1060, p. 7
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`
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`Page 8
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` Q. Sure.
` A. -- but your volume is just a little bit
` low.
` Q. Okay. Great. Thank you for that.
` And, you know, throughout this, if that
` happens again, just let me know.
` A. Okay.
` MR. LEROY: Hey, Tom, this is
` John LeRoy.
` Before we get too far into it, would
` you mind doing a roll call, just so we know
` who's on the line?
` And -- and for Omni MedSci, it's
` myself, John LeRoy; Thomas Lewry, also
` counsel for Omni MedSci; and, of course,
` the witness, Dr. MacFarlane.
` Who is on the call from Apple's
` side, besides yourself?
` MR. BROUGHAN: For Apple, it's me,
` Tom Broughan, as well as Matthew Hopkins.
` MR. LEROY: Anybody else? I see
` there's a Magna Support.
`
`Petitioner Apple Inc. - Ex. 1060, p. 8
`
`
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`Page 9
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` CERTIFIED STENOGRAPHER: I can tell
` you that. That's the back office in case
` anything happens with the remote video or
` the streaming. They're going to assist so
` they can take care of it for you.
` MR. LEROY: Okay. Thank you.
` All set.
` BY MR. BROUGHAN:
` Q. Dr. MacFarlane, you're aware that this
` deposition concerns an IPR proceeding about
` U.S. Patent Number 9,651,533?
` A. Yes.
` Q. And if I refer to that patent as the
` "'533 patent," that would be understandable to you?
` A. Yes.
` Q. And you submitted a declaration
` concerning the '533 patent in this matter?
` A. I did.
` Q. Also, I understand that you have
` several exhibits in front of you; is that correct?
` A. I do.
` Q. And none of those have any notes in
`
`Petitioner Apple Inc. - Ex. 1060, p. 9
`
`
`
`Page 10
` them or anything that you wrote down; they're the
` original copies of the exhibits, correct?
` A. They're all clean copies, yes.
` Q. Okay. Would you mind just stating for
` the record which exhibits you have in front of you?
` And referring to them by exhibit number is fine.
` A. Yes. Here's my notebook. I'll go
` through -- I'll go through tab by tab.
` Q. Thank you.
` A. The first tab is a copy -- a clean copy
` of my declaration.
` The second tab is a copy of the
` Lisogurski patent, Number 9,241,676 B2.
` The third tab -- well, the next tab is
` a copy of the Carlson patent -- actually, I take
` that back, please. It is a copy of the
` Carlson Patent Application Publication
` US 2005/0049468 A1, which was published on
` March 3rd, 2005.
` The next tab is the Mannheimer patent,
` Number 5,746,206.
` The next document is the Declaration of
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`Petitioner Apple Inc. - Ex. 1060, p. 10
`
`
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`Page 11
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`
` Brian Anthony, Ph.D., regarding U.S. Patent
` Number 9,651,533.
` The next document is the Patent Owner's
` Response to Petition for Inter Partes Review in the
` Matter of the U.S. Patent Number 9,651,533,
` Case Number IPR 2019-00916.
` The next document is the patent by
` Dr. Mohammed Islam, 9,651,533.
` The next one -- the next document -- it
` has a -- it has a Bates number on it; it's
` OMNI 2120. And it's an international
` application -- patent application. The
` international publication number is W0/2014/143276
` A2, for the inventor Dr. Mohammed Islam.
` The next document is the
` United States patent application publication with
` the inventor of Mohammed Islam, Publication Number
` US 2014/0236021 A1. And that -- that has -- that
` has a number OMNI 2121.
` And then the last document in my
` notebook is Paper Number 16, which is the decision
` granting of Inter Partes Review by the Patent Trial
`
`Petitioner Apple Inc. - Ex. 1060, p. 11
`
`
`
`Page 12
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` and Appeal Board for Case IPR 2019-00916.
` Q. Thank you.
` Could you turn to the '533 patent,
` please, and, in particular, Claim 5? And I would
` direct your attention to the limitation that
` appears from Lines 51 to 55.
` That limitation --
` A. The light --
` Q. -- yes, correct -- The light source
` configured to increase signal-to-noise ratio by
` increasing a light intensity from at least one of
` the plurality of semiconductor sources and by
` increasing a pulse rate of at least one of the
` plurality of semiconductor sources.
` Do you see that?
` A. Yes, I do.
` Q. Okay. I'd like to ask you a number of
` questions about this limitation.
` MR. LEROY: Hey, Tom, this is
` John LeRoy.
` MR. BROUGHAN: Yes.
` MR. LEROY: Dr. MacFarlane just has
`
`Petitioner Apple Inc. - Ex. 1060, p. 12
`
`
`
`Page 13
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` a binder with some tabs. I think you
` referred to them as "exhibits." They sort
` of are what they are.
` Did you want to mark this patent as
` Deposition Exhibit 1, just so we can keep
` track of these as we go?
` MR. BROUGHAN: Yeah. So, I mean,
` the way I've always done it in IPRs is the
` exhibits are -- they have exhibit numbers
` already. It's -- this patent is already
` Exhibit 1001. And so I would --
` MR. LEROY: That's fine with me. I
` just want to have a plan so we have a clear
` record.
` MR. BROUGHAN: I assume you're not
` going to challenge the authenticity of your
` own patent, but --
` MR. LEROY: No. I'm talking about
` for the rest of the day.
` MR. BROUGHAN: Yeah. It's a little
` bit different, so let me take a step back
` here --
`
`Petitioner Apple Inc. - Ex. 1060, p. 13
`
`
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`Page 14
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` THE WITNESS: Tom?
` BY MR. BROUGHAN:
` Q. Yes, Dr. MacFarlane?
` A. I'm sorry to break in and interrupt,
` but this particular copy of the -- this document
` that I have in front of me, the '533, has the
` exhibit number 1001 marked.
` However, if we talk about other
` exhibits, may we confirm the exhibit number?
` Q. Yes.
` If you -- just stay on this limitation
` for a second, but let me just go back and make a --
` to try to make the record clear.
` Dr. MacFarlane, you're looking at
` Exhibit 1001; is that correct?
` A. Yes, I am.
` Q. And Exhibit 1001 is the '533 patent?
` A. That's my understanding, yes.
` Q. Okay. And we will try to use this as
` an exhibit in this deposition. And it's premarked
` Exhibit 1001.
` Now, if you would, turn to Claim 5,
`
`Petitioner Apple Inc. - Ex. 1060, p. 14
`
`
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`Page 15
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` please, the light source limitation.
` A. Yes.
` Q. So for purposes of our discussion,
` would you agree with me that this limitation can
` roughly be split into two parts: one part is
` increasing the signal-to-noise ratio by increasing
` a light intensity from at least one of the
` plurality of semiconductor sources -- that's one
` part -- and the second part is increasing
` signal-to-noise ratio by increasing a pulse rate of
` at least one of the plurality of semiconductor
` sources, that's the second part?
` A. What do you mean -- do I need to worry
` about the word "roughly," Tom?
` Q. No. I wanted to be able to ask you
` questions just about the pulse rate part without
` tripping up over the first part.
` A. Okay.
` So can we -- so I think what you'd like
` to do is consider the "and" in there, and so --
` Q. Yes, sir.
` A. -- may I read -- for the purposes of
`
`Petitioner Apple Inc. - Ex. 1060, p. 15
`
`
`
`Page 16
` context, may I read what I think you want me to
` think about, which is the light source configured
` to increase signal-to-noise ratio by increasing a
` pulse rate of at least one of the plurality of
` semiconductor sources?
` Q. Yes, that is correct.
` The claim says that the light source is
` what increases the pulse rate; is that correct?
` A. The claim says, The light source
` configured to increase signal-to-noise ratio by
` increasing the pulse rate of at least one of the
` plurality of semiconductor sources.
` So the light source is configured to
` change that pulse rate.
` Q. If a processor is what instructed
` circuitry to change the pulse rate of a light
` source, would that meet the claim?
` A. Could you repeat the question, please?
` MR. LEROY: Objection to form.
` Sorry, Cindy, I had an objection to
` form.
` CERTIFIED STENOGRAPHER: Thank you.
`
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`Petitioner Apple Inc. - Ex. 1060, p. 16
`
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`Page 17
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` BY MR. BROUGHAN:
` Q. Would a processor increase the
` signal-to-noise ratio of a light source by
` increasing its pulse rate and still meet the claim?
` A. The -- that -- the -- that -- the claim
` says, The light source configured to increase
` signal-to-noise ratio by increasing a pulse rate of
` at least one of the plurality of semiconductor
` sources.
` So if you want to substitute "in a
` microprocessor configured to increase," then --
` then I don't understand that -- I don't
` understand -- I haven't considered that, and I
` don't understand that substitution.
` Q. How would a light source by itself
` increase its own pulse rate?
` MR. LEROY: Objection: form.
` THE WITNESS: The light
` source -- the light source -- the light
` source would -- if this goes to
` what -- this goes to what would be
` considered a light source.
`
`Petitioner Apple Inc. - Ex. 1060, p. 17
`
`
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`Page 18
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` So the light source itself -- the
` light source would include provisions in
` this. And the specification teaches us a
` fair amount about what is -- what else is
` going on with this light source.
` For example, in the -- in the
` background supporting material, we learn
` that the light source is an active
` illuminator -- I'm going to take out -- my
` declaration out of my notebook.
` BY MR. BROUGHAN:
` Q. Sure.
` A. So in that -- in -- in those teachings,
` the light source has provision within it to
` adjust -- to be configured to increase the
` signal-to-noise ratio by increasing the pulse rate
` of at least one of the plurality of semiconductor
` sources.
` Q. Are we looking at a particular
` paragraph of your declaration?
` A. Not yet.
` Q. Okay.
`
`Petitioner Apple Inc. - Ex. 1060, p. 18
`
`
`
`Page 19
` You, a moment ago, said you removed
` your declaration from the binder?
` A. Just to have it in front of me, yes.
` Q. Okay. Your declaration is Exhibit
` OMNI 2122?
` A. That's correct.
` Q. Okay. And we will introduce this as an
` exhibit to this deposition.
` A. I can't -- could you repeat that, Tom?
` I didn't hear -- I didn't hear you.
` Q. Yes. We'll introduce that as an
` exhibit to this deposition.
` - - -
` (MacFarlane Deposition Exhibit
` Number 1, Declaration of Duncan L.
` McFarland, Ph.D., P.E. Bates
` stamped OMNI 2122, marked for
` identification, as of this date.)
` - - -
` BY MR. BROUGHAN:
` Q. If you would, Dr. MacFarlane, open your
` declaration and turn to Paragraph 34, which is on
`
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`Petitioner Apple Inc. - Ex. 1060, p. 19
`
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`Page 20
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` Page 15.
` A. Thirty-four, The Board's construction
` also creates ambiguity --
` Q. Correct, that's the paragraph, yes.
` A. -- as to whether the -- do you want me
` to read it?
` Q. No, no. I just wanted to direct your
` attention to it. And I wanted to ask you a
` question about something in the paragraph, and that
` is you are drawing a distinction between whether a
` pulse rate is actively increased by the device or
` manually increased by a human.
` I wanted to know what you meant by
` having the pulse rate actively increased by the
` device itself.
` A. So if you go on to Paragraph 35 in my
` declaration, The '533 patent specification makes
` clear that the change in pulse rate is done by the
` device, not a manual adjustment. The '533
` specification discloses that the LEDs may operate
` in a pulsed mode of operation, during which a pulse
` rate is increased to increase SNR.
`
`Petitioner Apple Inc. - Ex. 1060, p. 20
`
`
`
`Page 21
` There's a citation there, Exhibit 1001,
` 5:11 to 15; 19 -- Column 19, Line 67, to Column 20,
` Line 2.
` The specification states --
` Q. Perhaps I -- oh, sorry.
` A. -- The light source is configured to
` increase signal-to-noise ratio by increasing a
` pulse rate of at least one of the plurality of
` semiconductor sources. The specification states
` that by use of an active -- by use of an active
` illuminator, a number of advantages may be
` achieved, including higher signal-to-noise ratios.
` Q. So let me just pause you one second and
` clarify my question a little bit.
` I guess -- my question is really more
` what's the difference between, like, an active
` illuminator -- sorry. Strike that.
` You said that -- you mentioned that the
` device would actively increase SNR.
` And what's the difference between a
` device actively increasing SNR versus the device
` increasing SNR?
`
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`Petitioner Apple Inc. - Ex. 1060, p. 21
`
`
`
`Page 22
` What does the "actively" part mean in
` there?
` A. I'm explaining the word "active" in
` light of the specification and -- and the -- and
` the PCT applications.
` So I'd like to continue to just read
` this paragraph, and then we can -- then we can
` explore in more detail, if necessary, which
` probably isn't.
` PCT --
` Q. The paragraph is in the record already.
` Unlike a district court proceeding, this is -- this
` paragraph is your official testimony that's in the
` record. And I just -- you know, I can read it, and
` the Board can read it. But I think what would be
` helpful for me -- and hopefully, also, the Board --
` is for you to explain how an active illuminator
` differs from an illuminator.
` A. Okay. I'd still like to get these last
` couple of lines into the record so that I can use
` them as a springboard.
` Q. Sure. They're in the record, but go
`
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`Petitioner Apple Inc. - Ex. 1060, p. 22
`
`
`
`Page 23
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`
` ahead.
` A. PCT Application Serial Number
` PCT/US2013/075767, Publication WO/2014/143276,
` which is incorporated by reference into the '533
` specification, describes the use of an active
` illuminator to achieve higher signal-to-noise
` ratios despite variations due to sunlight and the
` effects of weather, such as clouds and rain.
` This is Exhibit 101, Column 1, 33 to
` 37. That's where the cite is. And then it's an
` exhibit, 2120 at 25 to 26, Paragraph 0079.
` And this is consistent with
` U.S. Patent Application Serial Number 14/109,007,
` Publication Number 2014/0236021, also incorporated
` by reference into the '533 specification, which
` discloses that the modulation frequency of the
` light source is nonzero and can range between 0.1
` to 100 kilohertz. And this is Exhibit 1001 at 1 --
` at Column -- at Column 1, 40 to 42 -- that's the
` cite -- Exhibit 2121 at 4, Paragraph 0045.
` So did you want to repeat your
` question?
`
`Petitioner Apple Inc. - Ex. 1060, p. 23
`
`
`
`Page 24
` Q. How is an active illuminator different
` from an illuminator?
` A. So there's a -- to -- to a person of
` ordinary skill in the art in this matter, there's
` the word "active" and then the core of the -- the
` reflection of that, or the opposite of that, or the
` distinction of that is the word "passive."
` So by calling -- by -- by having the
` specification call into play an active illuminator,
` someone of ordinary skill would know that it's not
` a passive illuminator, that there would be some
` active elements associated with this -- with this
` illuminator.
` Q. How does that differ from a passive
` illuminator?
` A. So a passive illuminator would merely
` send out light in a predescribed manner with
` predescribed characteristics associated with it.
` The light in a room -- the light in a room, for
` example -- you buy a light; you put it in place;
` you throw the switch; the light comes on. You
` might determine, to some extent, the color, the
`
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`Petitioner Apple Inc. - Ex. 1060, p. 24
`
`
`
`Page 25
`
` size of the light bulb, and so on, but that's
` basically the -- the -- the -- the illumination.
` Active illumination and -- active
` illumination means there's usually -- well, there
` are parameters that are controlled in the
` illuminator. In the particular part of the claim
` element that we're talking about, it's the pulse
` rate. And that's controlled in response to the
` scene or the device under test or the -- or the
` sample under test.
` So there's a feedback loop involved
` that makes a measurement, makes a decision and --
` and will adjust characteristics of the -- of the
` illumination responsive to, in this particular
` case, the signal-to-noise ratio.
` Q. Okay. An active illuminator would vary
` how it provides illumination based on some
` parameter of the environment; is that correct?
` MR. LEROY: Objection.
` THE WITNESS: I caught almost all of
` that question. It's still low volume.
`
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`Petitioner Apple Inc. - Ex. 1060, p. 25
`
`
`
`Page 26
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` BY MR. BROUGHAN:
` Q. The stupid phone. My fault.
` A. I have my volume all the way up, Tom.
` Q. It's probably the cell phone. One
` second.
` An active illuminator would vary how it
` provides illumination based on some parameter of
` the environment that it is in; is that accurate?
` A. Would --
` THE WITNESS: Could -- Cindy, could
` you repeat back my answer?
` - - -
` (Whereupon, the certified
` stenographer read back the
` pertinent part of the record.)
` - - -
` THE WITNESS: Thank you.
` Tom, what was your question again,
` and how was it different from the answer
` that I just gave?
` BY MR. BROUGHAN:
` Q. My question is, An active illuminator
`
`Petitioner Apple Inc. - Ex. 1060, p. 26
`
`
`
`Page 27
` would vary how it provides illumination based on
` some parameter of the environment that it is in; is
` that correct?
` A. At this instant, I don't see anything
` wrong with that.
` Q. I want to turn to passive illuminator.
` A. To where?
` Q. "Passive illuminator."
` A. Okay.
` Q. A passive illuminator would provide
` illumination at a set -- or sorry. Strike that.
` A passive illuminator provides
` illumination based on its own set parameters, and
` it does not respond to changes in the environment
` that it is in.
` Would that be accurate?
` A. Repeat the question, please, one more
` time.
` Q. Yes, sir.
` A passive illuminator provides
` illumination based on its own preset parameters,
` and it does not respond to changes in the
`
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`Petitioner Apple Inc. - Ex. 1060, p. 27
`
`
`
`Page 28
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`
` environment that it is in.
` Is that accurate?
` MR. LEROY: Objection to the form of
` the question: incomplete hypothetical.
` THE WITNESS: A passive illuminator
` is not configured to respond to changes in
` the environment, for example.
` BY MR. BROUGHAN:
` Q. Okay. You mentioned the example of
` just a light in a room, that you turn it on, it's
` on; and then, later, you can turn it off, and it
` doesn't kind of change how it works based on that?
` A. That was an example that I gave in
` that -- to that particular question -- in answer to
` that particular question, yes.
` Q. Would it -- let me give you another
` example.
` A strobe light that -- you turn it on,
` and it just pulses at a fixed frequency and fixed
` intensity; and then it'll keep going until you turn
` it off.
` Would that also be an example of a
`
`Petitioner Apple Inc. - Ex. 1060, p. 28
`
`
`
`Page 29
`
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`
` passive illuminator?
` A. There were two words that --
` that -- that faded out, Tom.
` Q. Yes.
` Okay. Would a strobe light that you
` turn on -- and it pulses at a fixed frequency and
` fixed intensity until you turn it off -- would that
` also be an example of a passive illuminator?
` A. Without any further details of knowing
` the strobe light, without any sort of things that
` are wrinkled in there, without considering it in
` any great detail, if -- if -- if -- if it's
` manually driven by a human, then, yes, I would -- I
` would -- I would characterize -- as I understand
` that strobe light to be -- a passive illuminator.
` If you have a different opinion --
` understanding of what you're describing than I do,
` then I apologize for that. And -- and -- and I --
` I worry about the efficacy of my answer in that
` context -- in that statement.
` Q. Have you described the term "active
` illuminator" -- have you relied on any lexicography
`
`Petitioner Apple Inc. - Ex. 1060, p. 29
`
`
`
`Page 30
` or explicit definition in the Omni patent, the '533
` patent, or are you relying on some other
` understanding for the meaning of that term?
` MR. LEROY: Objection to the form of
` the question.
` THE WITNESS: The first place --
` when trying to understand a term, the first
` place I -- I would go would be to the
` patent -- to the teachings of the patent.
` There is -- however, I would also
` read that in the context of a person of
` ordinary skill in the art. I was at least
` of ordinary skill in the art at the time of
` this -- of this matter.
` And so what I read in the patent
` application, the -- the
` specification -- the -- the three exhibits
` that we've talked -- that I talked about
` earlier was consistent with what I know as
` a -- as a person of ordinary skill in the
` art at the time for what an active
` illuminator would be.
`
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`Petitioner Apple Inc. - Ex. 1060, p. 30
`
`
`
`Page 31
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`
` BY MR. BROUGHAN:
` Q. Let me go back to the strobe light
` example.
` If I had a strobe light that could
` pulse at two different frequencies, let's say
` 2 hertz and 4 hertz, and a human turned on the
` pulse -- sorry -- the human turned on the strobe
` lights at 2 hertz, the human then observed how the
` room looked and decided that it would be better to
` light pulse the 4 hertz and push the button on the
` strobe light to make it change to 4 hertz.
` Would that be an active illuminator?
` MR. LEROY: Objection to form.
` THE WITNESS: Not as I -- as I
` understand your example, which, again,
` I'm -- I'm -- I haven't considered in any
` deep manner or any -- or any -- I have not
` considered your example very carefully.
` Because of the human interaction
` involved, I would not necessarily -- I
` would not necessarily think that to be a --
` an active illuminator.
`
`Petitioner Apple Inc. - Ex. 1060, p. 31
`
`
`
`Page 32
`
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` BY MR. BROUGHAN:
` Q. If a human pushed a button on the
` device to change its pulse rate, that would be an
` example of more of a passive illuminator scenario?
` MR. LEROY: Objection to form.
` THE WITNESS: As I understand your
` example, yes.
` BY MR. BROUGHAN:
` Q. So in your declaration, you describe --
` A. Tom, I'm sorry. Could you -- I'm
` sorry. I'm sorry. Could you repeat the question,
` please?
` Q. Which question, the one I'm about to
` ask or the one -- the one I was asking or the prior
` one?
` A. The very last one.
` Q. If a human pushed a button on a device
` to change its pulse rate, for example, from 2 hertz
` to 4 hertz, that would be an example of a passive
` illuminator scenario, correct?
` A. As I understand your example, yes.
` MR. LEROY: The same objection to
`
`Petitioner Apple Inc. - Ex. 1060, p. 32
`
`
`
`Page 33
`
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`
` form.
` BY MR. BROUGHAN:
` Q. And continuing on this active
` illuminator topic -- I'm looking now at
` Paragraph 36 of your declaration -- you mentioned
` that the active illuminator is used to achieve
` higher SNR despite variations due to sunlight and
` the effects of weather, such as clouds and rain.
` And my question is, Why would you need
` an active illuminator to deal with variations due
` to sunlight and the effects of weather, such as
` clouds or rain?
` A. Repeat the question, please.
` Q. Yes.
` Why would you need to use an active
` illuminator to achieve higher SNR in the prese
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