UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Case
`IPR2021-00720
`U.S. Patent No.
`9,355,405
`
`)
`
`))
`
`VOLKSWAGEN GROUP OF AMERICA,
`INC.,
`
`Petitioner,
`
`)
`)
`)
`)
`
`vs.
`STRATOSAUDIO, INC.,
`)
`Patent Owner.
`_____________________________ )
`
`))
`
`VIDEO-RECORDED DEPOSITION OF TODD K. MOON
`New York, New York
`Thursday, March 24, 2022
`
`Reported Stenographically By:
`PATRICIA A. BIDONDE
`Registered Professional Reporter
`Realtime Certified Reporter
`JOB#: 440971
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`VW EX1015
`VW v. StratosAudio
`IPR2021-00721
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Case
`IPR2021-00720
`U.S. Patent No.
`9,355,405
`
`)
`
`))
`
`VOLKSWAGEN GROUP OF AMERICA,
`INC.,
`
`Petitioner,
`
`)
`)
`)
`)
`
`vs.
`STRATOSAUDIO, INC.,
`)
`Patent Owner.
`_____________________________ )
`
`))
`
`VIDEO-RECORDED DEPOSITION OF TODD K. MOON
`New York, New York
`Thursday, March 24, 2022
`
`Reported Stenographically By:
`PATRICIA A. BIDONDE
`Registered Professional Reporter
`Realtime Certified Reporter
`JOB#: 440971
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`VW EX1015
`VW v. StratosAudio
`IPR2021-00721
`
`
`
`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`2
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VOLKSWAGEN GROUP OF AMERICA, )
`INC., )
` )
` Petitioner, ) Case
` ) IPR2021-00721
` vs. ) U.S. Patent No.
` ) 8,166,081
`STRATOSAUDIO, INC., )
` )
` Patent Owner. )
`_____________________________ )
`
` VIDEO-RECORDED DEPOSITION OF TODD K. MOON
` New York, New York
` Thursday, March 24, 2022
`
` Reported Stenographically By:
` PATRICIA A. BIDONDE
` Registered Professional Reporter
` Realtime Certified Reporter
` JOB#: 440971
`
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`3
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` March 24, 2022
` 9:11 a.m.
`
` Video-Recorded Deposition of TODD
`K. MOON, held at the offices of White &
`Case LLP, 1221 Avenue of the Americas,
`New York, New York, before Patricia A.
`Bidonde, Stenographer, Registered
`Professional Reporter, Realtime
`Certified Reporter, Certified eDepoze
`Court Reporter, Notary Public of the
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`4
`
` A P P E A R A N C E S
`STERNE KESSLER GOLDSTEIN & FOX PLLC
`Attorneys for Petitioner, Volkswagen Group of
`America, Inc.,
` 1100 New York Avenue Northwest
` Suite 600
` Washington, DC 20005
`BY: RYAN C. RICHARDSON, ESQ.
` 202-772-8729
` rrichardson@sternekessler.com
`BY: TIMOTHY L. TANG, ESQ.
` 202-772-8758
` ttang@sternekessler.com
`
`WHITE & CASE LLP
`Attorney for Patent Owner, StratosAudio, Inc.,
` 1221 Avenue of the Americas
` New York, New York 10020-1095
`BY: JOHN P. SCHEIBELER, ESQ.
` 212-819-8830
` jscheibeler@whitecase.com
`
`ALSO PRESENT:
`CHRISTIAN BIDONDE, Legal Video Specialist
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`5
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` - - -
` P R O C E E D I N G S
` - - -
` THE VIDEOGRAPHER: We are now on
`the record. The time is 9:11 a.m. on
`March 24, 2022. Audio and video
`recording will continue to take place
`until all parties agree to go off the
`record. Please note that microphones
`are sensitive and may pick up whispering
`and private conversations.
` This is the video recorded
`deposition of Todd Moon in the matter of
`Volkswagen Group of America, Inc.,
`versus StratosAudio, Inc. This
`deposition is being held at White &
`Case, 6th Avenue, New York, New York --
`1221.
` My name is Christian Bidonde. I
`am the legal video specialist. The
`certified stenographer is Patricia
`Bidonde on behalf of Planet Depos,
`Rockville, Maryland. I am not related
`to any party in this action nor am I
`financially interested in the outcome.
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`6
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` Counsel will state their
` appearances for the record, then the
` certified stenographer will swear in the
` witness.
` MR. RICHARDSON: For petitioner,
` Volkswagen Group of America, my name is
` Ryan Richardson from the law firm of
` Sterne Kessler Goldstein & Fox. also
` with me is my colleague, Tim Tang.
` MR. SCHEIBELER: For the patent
` owner, StratosAudio, Inc., this is John
` Scheibeler from White & Case.
`T O D D K. M O O N, called as a witness,
` having been duly sworn by a Notary
` Public, was examined and testified as
` follows:
`EXAMINATION BY
`MR. RICHARDSON:
` Q. How are you doing today?
` A. Fine. Thank you. Great.
` Q. Can you just please state your
`name, full name for the record.
` A. Todd K. Moon.
` Q. All right. And have you been
`deposed before?
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`7
`
` A. I have.
` Q. All right. Approximate number of
`times?
` A. Probably eight or nine.
` Q. And about how many of those were
`in the last four years?
` A. None in the last four years.
` Q. Okay. And of those eight or nine
`times, were they all patent cases?
` A. Yes.
` Q. Okay. Involving patent cases at
`the PTAB?
` A. No, they were not PTAB cases.
` Q. Okay. District court cases,
`some --
` A. Yes.
` Q. Okay. And are those eight or
`nine cases where you were deposed, are those
`all reflected in your CV?
` A. Yes, I think so. I try to be
`very careful about that.
` Q. Okay. That's fine. So just
`nothing that you're aware of that is omitted.
` A. Nothing I'm aware of.
` Q. Eight or nine times, it's been a
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`8
`
`little while, it sounds like, since your last
`deposition. We'll quickly go through just a
`couple of the deposition rules that I like to
`follow to make sure everybody's on the same
`page, so hopefully we avoid any issues. If
`that's good for you.
` We are here in person. This is
`being video recorded, and a court reporter
`here. So -- so that the record and the
`transcript is accurate, we ask that you
`provide your answers verbally and not in some
`visual or nonauditory form. Is that fine?
` A. Yes.
` Q. Okay. Typically we like to take
`a break about every hour or so. If you need
`one before that anytime, just let us know and
`we can accommodate that.
` A. Yes.
` Q. The only thing that I will ask
`is, if you do need to go on a break at any
`time, just answer the question before we go so
`that there's not a pending question during the
`break.
` A. I understand.
` Q. Okay. And so is there any reason
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`9
`
`that you won't be able to provide true and
`accurate testimony today?
` A. No.
` Q. Okay. So you understand that
`you're here to talk about declarations that
`you submitted in two separate proceedings.
`Correct?
` A. Yes.
` Q. And for the record, those
`proceedings are IPR2021-00720 and
`IPR2021-00721. Without being a memory test,
`does that sound generally correct to you?
` A. That sounds correct.
` Q. Okay. And those proceedings
`involve two different patents. Correct?
` A. Yes.
` Q. Okay. One of those patents is US
`Number -- US Patent Number 9,355,405 and the
`other being 8,166,081.
` Does that sound accurate?
` A. Yes.
` Q. And so during the deposition
`today, I'll generally refer to those patents
`using shorthand, generally the '405 patent and
`the '081 patent.
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`10
`
` Is that acceptable to you?
` A. Yes.
` Q. And if I do that, you'll
`understand that I'm referring to those longer
`numbers we just discussed?
` A. Yes.
` Q. Okay. So leading up to your
`deposition today, what did you do to prepare
`to give your testimony here?
` A. I have read the petitions, I have
`read my declarations. I've read the '081 and
`the '405 patents, and then the petitioners
`have patents that they've identified as --
`alleging that they're prior art. And so I
`have reread those as well.
` Q. Okay. Did you review any
`documents that were not cited or discussed in
`your declaration that you're aware of?
` A. No.
` Q. Do you recall when you were --
`approximately when you were first approached
`to provide declaratory testimony in this
`partic- -- or either one of these particular
`proceedings?
` A. It seems like it was around
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`11
`
`November. I'd have to go back and check, but
`that seems about the time frame.
` Q. Okay. And do you recall whether
`the proceedings had been instituted at that
`time yet, or not?
` A. I don't know.
` Q. Fair enough. That's fair. So
`thinking back between November and when you
`submitted your declaration, do you know
`approximately how long you worked on putting
`together your declaration?
` A. It would be hard to say because
`obviously the time varies. There were times
`where I was putting in a couple of hours or so
`a day and then there'd be lapses, but several
`hours per week over several weeks
`collectively.
` Q. Okay. Would you say that you
`spent approximately the same amount of time on
`both declarations, or did you spend
`significantly more on one versus the other?
` A. It was probably about the same.
` Q. Okay. Would you say that
`collectively between the two depositions --
`excuse me, the two declarations that you
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`12
`
`worked on them for over 50 hours?
` A. I'm just trying to imagine here.
`That could be.
` Q. Okay. Would you imagine it being
`over a hundred hours?
` A. No, I don't think so.
` Q. Okay. Somewhere between 50 and
`100. So what was the process that you went
`through to put together the declarations for
`both of these proceedings?
` A. So typically I would start with
`the petition and say, "This is the position
`that they are taking."
` Then I would go to the patents
`themselves and say, "Well, here's the claim
`language. Does this claim language actually
`fit what they're saying?"
` And then I'd go to the patents
`that they were asserting, or -- that's not the
`right word. I would say, "claiming" as prior
`art, and I would say, "Do I see these elements
`that they are saying that meet these claim
`elements?"
` And so, kind of a comparison
`between those three documents. Sit and study
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`13
`
`those out and say, "Well, this says this, this
`is how I see the patent."
` And obviously I found places
`where I disagreed with what the petitioners
`had said.
` Q. And so do you then put pen to
`paper? Do you put the first draft of your
`declaration together?
` A. This was a collaborative effort.
`But there are instances where absolutely I put
`pen to paper and wrote down ideas.
` Q. Sure.
` A. Or fingers to keyboard, as the
`case may be.
` Q. Sure. Absolutely. Were there
`specific sections in your declaration that you
`yourself drafted?
` A. There were.
` Q. Do you recall what sections those
`were?
` A. I can think of some in particular
`relating to some technical issues that I'd
`actually have to have the report in front of
`me to be able to say "absolutely studied this
`very carefully."
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`Conducted on March 24, 2022
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`14
`
` Q. Okay. So you mentioned that you
`were retained, or first approached for these
`cases sometime around November. Is that
`correct?
` A. That's my recollection.
` Q. Okay. And was it also about that
`time frame when you started this process that
`you just outlined for putting together your
`declarations?
` A. Yeah, again, the time frame is
`not clear in my mind. So I'm going to say, as
`I recall, probably yes.
` Q. Okay. So during the process when
`you were helping put together the
`declarations, did you speak with anybody
`besides the counsel that you're here with
`today --
` A. No.
` Q. -- or anybody else that works
`with your counsel?
` All right. Well, let's -- we can
`grab Exhibit 1. Yeah, we can just mark it as
`Exhibit 1.
` (Exhibit 1, Declaration of Todd
` K. Moon, relating to US Patent
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`Conducted on March 24, 2022
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`15
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` 8,166,081, marked for identification, as
` of this date.)
` Q. Okay. Dr. Moon, you've been
`handed a document that's been marked as
`Exhibit 1. It is titled the "Declaration of
`Dr. Todd K. Moon."
` Do you see that?
` A. Yes.
` Q. And this particular declaration
`say's that it's relating to the '081 patent.
`Correct?
` A. Yes.
` Q. Is this a document that you
`recognize?
` A. Yes.
` Q. And if you want to take a second
`to flip through it and make everything -- make
`sure everything is all there, nothing looks
`out of place to you.
` A. (Document review.)
` Okay.
` Q. Looks pretty good?
` A. Mm-hmm.
` Q. Okay. Sitting here today, are
`you aware of any corrections that need to be
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`16
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`made to your declaration?
` A. Let me check one thing if I can.
` Q. Sure.
` A. I noticed a typo. But it might
`be in the other report cause, yeah, I'm not
`seeing the paragraph that I thought it was in.
`So ...
` Q. Okay. We can tackle that one
`when we get to the other declaration.
` A. Okay.
` Q. So then just so that we're clear,
`the declaration for the '081 patent, you're
`not aware of any corrections, as of right now,
`that need to be --
` A. Not that come to mind at the
`moment.
` Q. Okay.
` MR. RICHARDSON: And if we can
` get these two. Oops. That should
` actually go to your counsel. You'll get
` handed a different one.
` (Exhibit 2, US Patent 8,166,081,
` marked for identification, as of this
` date.)
` Q. And Dr. Moon, you've been handed
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`17
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`a second document now, this one marked as
`Exhibit Number 2. And this having a title on
`the top, on the top right corner, US --
`"United States Patent, Patent Number
`8,166,081."
` Do you see that?
` A. Yes.
` Q. And do you recognize this
`document as the '081 patent?
` A. Yes.
` Q. Okay. And you're familiar with
`this document. Correct?
` A. Yes.
` Q. And that document is the subject
`of the declaration marked as Exhibit 1?
` A. Yes.
` Q. So your declaration, with respect
`to the '081 patent, in there you address the
`patent ability of Claims 9 through 11 and 23
`of the '081 patent. Correct?
` A. Let me double-check the numbers
`there, if I can.
` (Document review.)
` Yes.
` Q. And if you want to go to the tail
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`18
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`end of Exhibit 2 where the claims are listed,
`and particularly Claim 9. And so again, Claim
`9 is the only independent claim that is
`directly subject to analysis in your
`declaration. Correct?
` A. Yes.
` Q. Okay. And is the system that's
`implemented by Claim 9, is that represented in
`any of the figures in the '081 patent?
` A. So there is an embodiment. We've
`made discussion relative to Figure 3. And so
`properly interpreted and applied, Figure 3
`could be an embodiment of these claims.
` Q. Okay. So Figure 3 could be an
`embodiment of this system in Claim 9.
`Correct?
` A. Yes.
` Q. Okay. So if we, again, take a
`look at Claim 9, I just want to make sure that
`we are understanding your interpretation of
`Claim 9 correctly.
` So Claim 9 begins with: "A
`system for combining multiple media," and then
`comprising a number of different elements.
` Correct?
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`19
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` A. Mm-hmm.
` Q. So in Figure 3, what is this
`system that combines multiple media?
` A. So let's first of all, just, kind
`of -- I'm going to read in the title of the
`patent and talk about this. So the title of
`the patent is: "System and Method for
`Advertisement Transmission and Display."
` And so they talk about a system
`that receives broadcast and has ways of
`displaying -- or presenting that broadcast in
`conjunction with other media such as
`advertisements.
` So with that as background, in
`this, Claim 9 talks about a first receiver,
`Which could be -- they point to the antenna,
`455, but that's an antenna going into a
`receiver.
` They talk about advertisements
`which -- or additional media information which
`could include information about that. If it's
`a song it could include display information or
`cover information, and/or it could include some
`advertisements.
` And that could come, for example,
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`20
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`via a database of information via this line
`they identify as 470 into the device here.
` Q. Okay. So maybe taking one step
`back there, the beginning of Claim 9 which
`says that it's a system. Right?
` A. Mm-hmm.
` Q. A system -- let me make sure that
`I have the language correctly, "a system for
`combining multiple media."
` So is it your opinion that
`everything shown in Figure 3, is it part of
`that system, or is this system of Claim 9 a
`subset of what's in Figure 3?
` A. It's a subset.
` Q. Okay. So what are the elements
`in Figure 3 that are included in that system?
` A. I would say the receiver system
`in what they portrayed as the cell phone, and
`the computer system with its receiver and
`display, and then the ability to get the
`information between those two.
` Q. Okay. Understood. So again,
`looking at Claim 9, the first feature that is
`listed in the comprising elements is:
` "A first receiver module
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`21
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` configured to receive at least a first
` media content and data enabling the
` identification of a specific instance of
` the first media content from a first
` broadcast medium."
` A. Yes.
` Q. Do you see that portion?
` A. Mm-hmm.
` Q. Okay. And I know you mentioned
`previously something about an antenna and
`receiver, but just so we're clear, what is the
`first receiver module in Figure 3?
` A. Okay. At this point, let me
`check to make sure the way I've said it in my
`report.
` Q. Absolutely. And if at any time
`you need a document or need to refer to
`something, let us know and we can make that
`happen.
` A. Okay.
` (Document review.)
` So the first rec- -- the first
`transmitter, 3 -- I'm just reading here. This
`is on page 16: "The first transmitter 3 may
`broadcast the first media content to the
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`22
`
`primary device," which in our figure is going
`be that cell phone numbered, I want to say 4.
`But let me check. Yeah, 4.
` Okay. So the first transmitter 3
`can send a first media signal to the primary
`device. And did -- did that answer your
`question?
` Q. Not quite.
` A. Okay.
` Q. So I'll just ask it again.
` Claim 9 begins by reciting a
`first receiver module. What specifically in
`Figure 3 is the first receiver module?
` A. So again, the patent points to
`455 as the first receiver module. But it's --
`that's representing the antenna and the
`receiver associated with it.
` Q. Okay. So if I understand
`correctly then, the first receiver module
`would include the physical antenna plus some
`sort of processing functionality within device
`4.
` A. Yes.
` Q. Is that correct?
` And the combination of that
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`23
`
`hardware antenna and the processing
`functionality would be the first receiver?
` A. Right.
` Q. Okay. So then similar question
`for Claim 9, the second element is:
` "A second receiver module
` configured to receive at least a second
` media content and uniquely identifying
` data specific to at least the second
` media content."
` Do you see that portion?
` A. Yes.
` Q. So again, in Figure 3, what is
`the second receiver module?
` A. We would point to the computer 5
`here as the second receiver module.
` Q. Okay. And is -- so is it your
`opinion that the entirety of computer 5 is the
`second receiver module?
` A. We need to have sufficient
`capability in that to receive, and also as the
`claim indicates, to also have an output.
` Q. Okay.
` A. So sufficient in that to include
`that functionality, which means probably an
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
`
`24
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`operating computer.
` Q. Probably not --
` A. Meaning if the computer is not
`operating, we couldn't perform those
`functions, the receiving module and the
`output.
` Q. Sure. I'm just trying to
`clarify. So when we were talking about the
`first receiver module, you indicated that it
`was the antenna plus some processing function,
`but you didn't necessarily say that it was
`primary device 4 in its entirety.
` So now looking at the second
`receiver module, is that a similar
`characteristic? Would you have an interface
`plus processing capability, or is it the
`entire computer?
` A. So I'm trying to address the
`questions as they're coming. So I'll point
`out that the receiver module, this device,
`actually does have a display associated with
`it. And so it's -- you know, we have the
`receiver -- well, let me go to the claim
`language.
` So as you just read, "first
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`25
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`receiver module configured to receive at
`least," and then jumping down, "an output
`system" -- so this is element (a),(b),(c), if
`we agree on the lettering here -- "an output
`system configured to present concurrently the
`first media content and second media content
`on an output of the first receiver."
` So clearly the output that's
`shown here, this screen, I think they indicate
`that as Number 450, that would be considered
`part of the first receiver module in that
`sense.
` Similarly, for the ancillary
`device here, Number 5, it has to have the
`ability to receive the media, as described
`here, configured to receive at least data
`specific to at least a second media content,
`and also the ability to display the first and
`second media content on an output of that
`second receiver module.
` Q. Okay. Understood. And we'll
`walk through the rest of the claim just so
`that I make sure what we're mapping to.
` But if I understand correctly
`then, again, looking at the first receiver
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`26
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`module, it's your opinion that that would
`include the antenna, processing functionality
`for performing the functions we cited in the
`claim, and the output. Is that correct?
` A. Again, I'm going to --
` Q. The display.
` A. Yeah, because it says "on an
`output of the first receiver module," which
`indicates that that is part of that receiver
`module.
` Q. Okay. So then similar then for
`the second receiver module, your opinion is
`that it includes an interface of the computer,
`it includes the processing functionality that
`would perform the recited functionality, plus
`some sort of display to output media.
`Correct?
` A. I'm going to mod- -- yes,
`generally, but I'm going to modify just one
`thing that you said there, if I can.
` It talks about an output system.
`So that may comprise a display or other ways
`of doing the output.
` Q. Okay. Just some sort of output
`that gives a auditory, visual -- some sort of
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`Transcript of Todd K. Moon, Ph.D.
`Conducted on March 24, 2022
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`27
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`sensory --
` A. Yeah, capable of doing that for
`both the first and second media.
` Q. Okay. So looking at, again,
`Figure 3, and we have primary device 4, which
`is that cell phone. Correct?
` A. Mm-hmm.
` Q. And you indicated that a portion
`of that cell phone is the first receiver
`module. Correct?
` Is there an additional receiver
`module in that cell phone?
` A. There may be -- that is, the --
`you could have more than one receiver module,
`but they don't necessarily all have all the
`capabilities th
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