UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` HYUNDAI MOTOR AMERICA, )
`
` ) CASE IPR2021-01267
`
` PETITIONER, )
`
` ) U.S. PATENT NO.
`
` VS. ) 8,166,081
`
` )
`
` STRATOSAUDIO INC., )
`
` )
`
` PATENT OWNER. )
`
` ________________________________)
`
` REMOTE PROCEEDINGS OF THE
`
` VIDEOTAPED EXPERT DEPOSITION OF TODD K. MOON, Ph.D.
`
` THURSDAY, JUNE 30, 2022
`
` JOB NO. 5287233
`
` REPORTED BY KIMBERLY EDELEN,
`
` CSR. NO. 9042, CRR, RPR.
`
` PAGES 1 - 81
`
`Veritext Legal Solutions
`866 299-5127
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`Petitioner Hyundai Ex-1029, 0001
`
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` HYUNDAI MOTOR AMERICA, )
`
` ) CASE IPR2021-01267
`
` PETITIONER, )
`
` ) U.S. PATENT NO.
`
` VS. ) 8,166,081
`
` )
`
` STRATOSAUDIO INC., )
`
` )
`
` PATENT OWNER. )
`
` ________________________________)
`
` REMOTE PROCEEDINGS OF THE
`
` VIDEOTAPED EXPERT DEPOSITION OF TODD K. MOON, Ph.D.
`
` THURSDAY, JUNE 30, 2022
`
` JOB NO. 5287233
`
` REPORTED BY KIMBERLY EDELEN,
`
` CSR. NO. 9042, CRR, RPR.
`
` PAGES 1 - 81
`
`Veritext Legal Solutions
`866 299-5127
`
`Page 1
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`Petitioner Hyundai Ex-1029, 0001
`
`
`
`REMOTE PROCEEDINGS OF THE VIDEOTAPED EXPERT
`DEPOSITION OF TODD K. MOON, Ph.D., TAKEN ON BEHALF
`OF THE PETITIONER, AT 9:02 A.M. MDT, THURSDAY,
`JUNE 30, 2022, BEFORE KIMBERLY A. EDELEN,
`CSR NO. 9042, CRR, RPR.
`
`REMOTE APPEARANCES OF COUNSEL
`
`FOR THE PETITIONER:
` O'MELVENY & MYERS LLP
` BY: CAITLIN P. HOGAN, ESQ.
` BRAD BERG, ESQ.
` 7 TIMES SQUARE
` NEW YORK, NEW YORK 10036
` 212.326.4481
` CHOGAN@OMM.COM
` BMBERG@OMM.COM
`
`FOR THE PATENT OWNER:
`
` WHITE & CASE LLP
` BY: HALLIE KIERNAN, ESQ.
` JOHN SCHEIBELER, ESQ.
` 1221 AVENUE OF THE AMERICAS
` NEW YORK, NEW YORK 10020
` 212.819.8200
` HALLIE.KIERNAN@WHITECASE.COM
` JSCHEIBELER@WHITECASE.COM
`
`ALSO PRESENT: CHRISTY CANTU, VIDEOGRAPHER
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`Page 2
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`Petitioner Hyundai Ex-1029, 0002
`
`
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` I N D E X
`
`WITNESS EXAMINATION PAGE
`TODD K. MOON, Ph.D.
` BY MS. HOGAN 6
`
` E X H I B I T S
`
` NO. PAGE DESCRIPTION
`EXHIBIT 1001 10 UNITED STATES PATENT,
` PATENT NO. US 8,166,081 B2,
` BATES NOS. PETITIONER
` HYUNDAI EX-1001, 0001 -
` PETITIONER HYUNDAI
` EX-1001, 0035
`
`EXHIBIT 1005 26 UNITED STATES PATENT,
` PATENT NO. 5,303,393,
` BATES NOS. PETITIONER
` HYUNDAI EX-1005, 0001 -
` PETITIONER HYUNDAI
` EX-1005, 0018
`EXHIBIT 1008 73 UNITED STATES PATENT,
` PATENT NO. 2005/0227611 A1,
` BATES NOS. PETITIONER
` HYUNDAI EX-1008, 0001 -
` PETITIONER HYUNDAI
` EX-1008, 0030
`
`EXHIBIT 2016 9 DECLARATION OF
` DR. TODD K. MOON
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`Page 3
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`Petitioner Hyundai Ex-1029, 0003
`
`
`
` REMOTE PROCEEDINGS
`
` THURSDAY, JUNE 30, 2022; 9:02 A.M. MDT
`
` THE VIDEOGRAPHER: Good morning. We are 09:02:17
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`going on the record at 9:02 a.m. Mountain Time on 09:02:18
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`June 30th, 2022. 09:02:24
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` Please note that the microphones are 09:02:28
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`sensitive and may pick up whispering, private 09:02:29
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`conversations and cellular interference. 09:02:31
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` Please turn off all cell phones or place 09:02:34
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`them away from the microphones as they can interfere 09:02:36
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`with the deposition audio. 09:02:39
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` Audio and video recording will continue to 09:02:41
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`take place unless all parties agree to go off the 09:02:44
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`record. 09:02:48
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` This is Media Unit 1 of the video-recorded 09:02:49
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`deposition of Dr. Todd K. Moon taken by counsel for 09:02:52
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`the petitioner in the matter of Hyundai Motor 09:02:57
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`America versus StratosAudio, Inc. filed in the 09:03:00
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`United States Patent and Trademark Office before the 09:03:04
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`Patent Trial and Appeal Board, Case 09:03:06
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`No. IPR2021-01267. 09:03:08
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` This deposition is being held via Zoom 09:03:15
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`video conference and all parties are at their own 09:03:17
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`Petitioner Hyundai Ex-1029, 0004
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`respective locations. 09:03:20
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` My name is Christy Cantu from the firm 09:03:21
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`Veritext Legal Solutions, and I'm the videographer. 09:03:23
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`The court reporter is Kimberly Edelen from the firm 09:03:26
`
`Veritext Legal Solutions. 09:03:30
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` I am not related to any party in this 09:03:32
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`action nor am I financially interested in the 09:03:34
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`outcome. 09:03:36
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` Counsel and all present in the room and 09:03:38
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`everyone attending remotely will now state their 09:03:40
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`appearances and affiliations for the record. 09:03:42
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` If there are any objections to proceeding, 09:03:45
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`please state them at the time of your appearance 09:03:47
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`beginning with the noticing attorney. 09:03:50
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` MS. HOGAN: Caitlin Hogan from O'Melveny & 09:03:54
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`Myers on behalf of petitioner Hyundai Motor America. 09:03:56
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`And with me is also my colleague Brad Berg from 09:04:00
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`O'Melveny & Myers on behalf of petitioner. 09:04:05
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` MS. KIERNAN: This is Hallie Kiernan of 09:04:09
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`White & Case on behalf of patent owner StratosAudio, 09:04:12
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`Incorporated. And with me on the line -- and also 09:04:16
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`the witness, Todd Moon. And with me on the line is 09:04:18
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`John Scheibeler also of White & Case and the expert 09:04:22
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`Todd Moon. 09:04:26
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` THE VIDEOGRAPHER: Will the court reporter 09:04:29
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`Page 5
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`Petitioner Hyundai Ex-1029, 0005
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`please swear in the witness. 09:04:30
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` THE REPORTER: Do the parties stipulate the 09:04:33
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`court reporter may swear in the witness remotely? 09:04:33
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` MS. HOGAN: Yes. 09:04:38
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` MS. KIERNAN: Yes. 09:04:39
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` THE REPORTER: Dr. Moon, would you raise 09:04:41
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`your right hand, please. 09:04:42
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` You do solemnly swear the testimony you're 09:04:48
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`about to give shall be the truth, the whole truth 09:04:48
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`and nothing but the truth? 09:04:48
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` THE WITNESS: Yes. 09:04:49
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` THE REPORTER: Thank you. 09:04:50
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` EXAMINATION
`
`BY MS. HOGAN:
`
` Q Hi, Dr. Moon. 09:04:55
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` Can you please state your full name for the 09:04:57
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`record. 09:04:59
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` A Todd K. Moon. 09:05:00
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` Q Do you understand that you're under oath? 09:05:01
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` A Yes. 09:05:03
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` Q Have you been deposed before? 09:05:04
`
` A Yes. 09:05:06
`
` Q How many times? 09:05:07
`
` A Probably 11 or 12, around there. 09:05:10
`
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`Page 6
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`Petitioner Hyundai Ex-1029, 0006
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` Q Okay. Have you ever done a deposition over 09:05:17
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`Zoom? 09:05:19
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` A This is my first. 09:05:20
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` Q Okay. So just so you're familiar with the 09:05:21
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`process, I will ask questions, you'll provide 09:05:25
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`answers, and your attorney may object at times as if 09:05:27
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`we were in person in the same room. Okay? 09:05:30
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` A I understand. 09:05:34
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` Q And you're aware that I will introduce 09:05:35
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`exhibits via Veritext Exhibit Share account, which 09:05:37
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`you should have received an e-mail for before this 09:05:40
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`and set it up to be able to view the exhibits; is 09:05:43
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`that right? 09:05:46
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` A I understand, yes. 09:05:46
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` Q Okay. I assume that you're familiar with 09:05:47
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`the ground rules for a deposition? 09:05:50
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` A Yes. 09:05:56
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` Q You understand that today's deposition is 09:05:56
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`being recorded stenographically, so you should give 09:05:58
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`verbal answers rather than nodding or shaking your 09:06:01
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`head, right? 09:06:04
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` A Yes. 09:06:05
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` Q You know that your attorney may object to a 09:06:05
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`question but that you are still required to answer 09:06:07
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`the question unless your attorney instructs you not 09:06:09
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`Page 7
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`Petitioner Hyundai Ex-1029, 0007
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`to? 09:06:12
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` A Yes. 09:06:13
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` Q If at any point your answer gets cut off, 09:06:14
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`let me know and you'll have an opportunity to 09:06:17
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`complete your answer. 09:06:19
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` I will do my best not to talk over you and 09:06:21
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`I would ask likewise that you do the same for me. 09:06:23
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`That will help the court reporter keep a clear 09:06:26
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`record of who said what. 09:06:28
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` Do you understand that? 09:06:29
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` A I understand. 09:06:30
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` Q If at any point you realize that an answer 09:06:31
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`you have given was incomplete or incorrect, let me 09:06:33
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`know and you will have an opportunity to complete or 09:06:36
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`correct your answer. 09:06:39
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` Do you understand? 09:06:40
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` A I understand. 09:06:41
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` Q And I will aim to give you a break every 09:06:42
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`hour or so, but if you need a break before that at 09:06:45
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`any time, just let me know. My only request is that 09:06:47
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`if there's a question pending, that you answer the 09:06:50
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`question before we take a break. 09:06:52
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` Is that okay? 09:06:54
`
` A Yes. 09:06:55
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` Q Is there any reason that you cannot give 09:06:56
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`Page 8
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`Petitioner Hyundai Ex-1029, 0008
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`truthful and accurate testimony today? 09:06:58
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` A No. 09:07:01
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` Q And you are here to testify on behalf of 09:07:03
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`the patent owner StratosAudio, Inc. in 09:07:05
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`IPR2021-01267, correct? 09:07:09
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` A Yes. 09:07:13
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` Q Do you understand that when I refer to 09:07:15
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`IPR2021-01267 that I'm referring to the IPR relating 09:07:17
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`to the '081 patent? 09:07:22
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` A Yes. 09:07:25
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` Q And will you understand if I refer to the 09:07:26
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`patent owner as StratosAudio? 09:07:28
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` A Yes. 09:07:30
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` Q Do you have any notes or other documents 09:07:32
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`with you at your deposition today? 09:07:34
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` A No. Anything that I had is in another 09:07:35
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`room. 09:07:39
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` Q Okay. So I'm going to introduce the first 09:07:39
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`document. 09:07:44
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` (Deposition Exhibit 2016 09:07:45
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` was marked for identification.) 09:07:45
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` THE WITNESS: I have it. 09:08:23
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`BY MS. HOGAN: 09:08:23
`
` Q Okay. I just introduced a document that 09:08:24
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`has been marked as Exhibit 2016. 09:08:26
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`Page 9
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`Petitioner Hyundai Ex-1029, 0009
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` Do you recognize this document? 09:08:28
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` A Yes. 09:08:29
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` Q What is it? 09:08:29
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` A It is the -- my declaration of Dr. Todd K. 09:08:30
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`Moon in regard to this question -- this IPR. 09:08:34
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` Q Okay. Is your declaration a complete 09:08:40
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`statement of all of your opinions in this case and 09:08:42
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`the reasons for them? 09:08:45
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` A Yes. 09:08:46
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` Q Does it contain all of the facts or data 09:08:48
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`considered by you in forming your opinions? 09:08:51
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` A Yes. 09:08:52
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` Q Do you have any corrections or changes to 09:08:54
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`make to it? 09:08:56
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` A No. 09:08:57
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` Q Does this declaration accurately describe 09:08:59
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`the work that you performed for this case? 09:09:01
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` A Yes. 09:09:04
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` Q I'm introducing another exhibit. 09:09:15
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` (Clarification by the Reporter.) 09:09:34
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` (Deposition Exhibit 1001 09:09:34
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` was marked for identification.) 09:09:34
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`BY MS. HOGAN: 09:09:49
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` Q I just introduced what has been marked as 09:09:50
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`Exhibit 1001. 09:09:52
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`Page 10
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`Petitioner Hyundai Ex-1029, 0010
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` Do you recognize this document? 09:09:55
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` A Yes, I have it. It's the '081 patent. 09:09:57
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` Q And have you reviewed the '081 patent? 09:10:01
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` A Yes. 09:10:03
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` Q What did you do to prepare for today's 09:10:05
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`deposition? 09:10:06
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` A I read my declaration. I read the 09:10:08
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`declaration of Dr. Almeroth. I reread the '081 and 09:10:13
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`I reread or reviewed the alleged prior art. 09:10:17
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` I also reviewed the pages that were 09:10:23
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`exhibits related to TDM. And I think that's it. I 09:10:29
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`think that's what I reviewed. 09:10:36
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` Q Okay. Did you meet with anyone to prepare 09:10:38
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`for the deposition? 09:10:41
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` A Counsel and I discussed this. 09:10:43
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` Q So you met with counsel to prepare for the 09:10:48
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`deposition? 09:10:49
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` A Yes. 09:10:50
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` Q How long did you meet? 09:10:51
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` A I'm assuming I can answer this. It was a 09:10:55
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`couple hours a day for two days -- for two or three 09:11:00
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`days, and then somewhat over an hour on another day. 09:11:05
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` Q Okay. Did you speak to anyone else to 09:11:10
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`prepare for the deposition? 09:11:12
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` A No. 09:11:13
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`Page 11
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`Petitioner Hyundai Ex-1029, 0011
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` Q Are you aware that another expert, 09:11:15
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`Dr. John C. Hart, prepared expert declarations for 09:11:16
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`IPR proceedings involving the '028 and '307 patents? 09:11:21
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` A I was not aware of that. 09:11:26
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` Q Okay. So you did not review any of his 09:11:27
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`expert declarations, correct? 09:11:30
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` A No. 09:11:31
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` Q If we could look at your declaration, 09:11:36
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`Exhibit 2016, Paragraph 11. 09:11:38
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` Just let me know when you're there. 09:11:52
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` A Okay. I'm here. 09:11:55
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` Q Paragraph 11 lists all the materials that 09:11:58
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`you reviewed in connection with this case to prepare 09:12:01
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`your declaration, correct? 09:12:03
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` A Yes. 09:12:07
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` Q Are there any documents that you considered 09:12:12
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`or relied upon in forming your opinions in this case 09:12:14
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`that are not listed in this section or cited in the 09:12:17
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`declaration? 09:12:20
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` A Not that I recall. This is the list. 09:12:20
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` Q Did you review StratosAudio's preliminary 09:12:23
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`patent owner response? 09:12:27
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` A Yes. 09:12:31
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` Q Did you review StratosAudio's patent owner 09:12:33
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`response? 09:12:37
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`Petitioner Hyundai Ex-1029, 0012
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` A I think so, yes. 09:12:40
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` Q Okay. Did you review any IPR filings from 09:12:45
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`related cases to prepare your declaration? 09:12:49
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` A So there are two IPRs involved in this, but 09:12:54
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`I didn't review the other IPR documentation in 09:12:57
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`preparation for this -- this deposition. 09:13:02
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` (Clarification by the Reporter.) 09:13:16
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`BY MS. HOGAN: 09:13:28
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` Q When you said "there are two IPRs involved 09:13:29
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`in this," do you mean there are two IPRs for the 09:13:31
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`'081 patent or what were you referring to? 09:13:34
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` A Yes, for the '081. 09:13:38
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` Q And is that the -- is that the IPR 09:13:40
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`involving Volkswagen as the petitioner? 09:13:43
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` A Yes. 09:13:46
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` Q Okay. Did you review the IPR filings, 09:13:46
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`including any of the exhibits, from that case to 09:13:49
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`prepare your declaration? 09:13:53
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` A No. This was all done based on this prior 09:13:55
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`art in this declaration. 09:13:58
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` Q So in addition to the documents that we 09:14:01
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`just discussed, are you aware of any other documents 09:14:03
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`that should have been included in this paragraph but 09:14:05
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`weren't? 09:14:08
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` A Nothing comes to mind, no. 09:14:09
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`Page 13
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`Petitioner Hyundai Ex-1029, 0013
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` Q Did you personally read all the documents 09:14:11
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`listed in Paragraph 11 or cited in the declaration 09:14:14
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`yourself? 09:14:17
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` A Let me check this. Almeroth, yes. 09:14:18
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`Petition, yes. Spec, yes. Claims... 09:14:19
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` So on the prosecution history, that was a 09:14:25
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`review. I went through the prosecution history and 09:14:28
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`reviewed it. I did not review the entire 09:14:32
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`prosecution word -- history word for word. And I've 09:14:35
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`read the PTAB's Institution Decision. 09:14:37
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` Q Okay. For the prosecution history, how did 09:14:42
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`you choose which excerpts you reviewed? 09:14:45
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` A I find it interesting to look at what was 09:14:48
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`raised by the patent reviewer and then the response 09:14:52
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`to that, so those are the things I tend to look for 09:14:57
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`when I review a prosecution history. 09:15:00
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` Q Okay. So here are you saying you would 09:15:03
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`have reviewed the office action and the office 09:15:05
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`action responses? 09:15:08
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` A Yes. That's -- that's the ones I should 09:15:09
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`have used. 09:15:11
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` Q Okay. If we can look at Paragraph 24 of 09:15:11
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`your declaration. 09:15:23
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` Let me know when you're there. 09:15:30
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` A I'm here. 09:15:32
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`Page 14
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`Petitioner Hyundai Ex-1029, 0014
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` Q Okay. The second sentence starting with 09:15:32
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`"Specifically," if you could read that sentence to 09:15:35
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`yourself and let me know when you're done. 09:15:36
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` A Okay. 09:15:42
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` Q The claims do not recite that the system 09:15:43
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`has to discretely identify each instance of the 09:15:45
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`first media content, right? 09:15:48
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` A So the claim -- let me refer to the claim 09:15:51
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`language if I can -- 09:15:54
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` Q Yeah. Sure. 09:15:56
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` A -- and describe where that wording comes 09:15:56
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`from. 09:15:58
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` Q That's Claim 9 in Exhibit 1001. 09:16:03
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` A Yeah. This -- this is where paper would be 09:16:06
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`a little bit easier rather than switching back and 09:16:09
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`forth. 09:16:12
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` (Clarification by the Reporter.) 09:16:32
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` THE WITNESS: Okay. So the language I had 09:16:33
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`in mind when I used that was the limitation that 09:16:35
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`says "a first receiver module configured to receive 09:16:38
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`at least a first media content and data enabling the 09:16:41
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`identification of a specific instance of the first 09:16:44
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`media content from a first broadcast medium." 09:16:48
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` So I had in mind this idea about this 09:16:52
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`specific instance of the first media content when I 09:16:54
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`Petitioner Hyundai Ex-1029, 0015
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`used that language. 09:16:56
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`BY MS. HOGAN: 09:16:58
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` Q Okay. But the claim doesn't recite the 09:16:58
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`exact language that you use here in this sentence, 09:17:01
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`right, that the system has to discretely identify 09:17:04
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`each instance? 09:17:07
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` A That is correct. 09:17:08
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` MS. KIERNAN: Objection to form. 09:17:09
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`BY MS. HOGAN: 09:17:12
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` Q So -- and those are your words that you 09:17:13
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`drafted and included in this declaration, right? 09:17:14
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` A Yes. 09:17:17
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` Q If you could turn to Paragraph 33. 09:17:18
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` A All right. I just downloaded this, so let 09:17:23
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`me go back to the documents here. Paragraph 33... 09:17:25
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` Okay. I'm here. 09:17:45
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` Q Okay. Can you read this paragraph to 09:17:46
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`yourself and let me know when you're done. 09:17:48
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` A Okay. 09:18:02
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` Q So the unique identifier can be used to 09:18:02
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`determine any of these things that are listed, 09:18:06
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`right? 09:18:08
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` MS. KIERNAN: Objection. Form. 09:18:10
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` THE WITNESS: By "any of these things that 09:18:15
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`you listed," you're referring to what exactly? 09:18:17
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`Petitioner Hyundai Ex-1029, 0016
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`BY MS. HOGAN: 09:18:21
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` Q I'm referring to where it says "location, 09:18:21
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`user device, time of transmittal, program and/or 09:18:23
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`media content in the first media signal, available 09:18:27
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`options for response to the user of the device, 09:18:30
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`and/or other identifying characteristic 09:18:31
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`information." 09:18:34
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` Do you see that? 09:18:37
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` A Yes. 09:18:38
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` Q So my question was: The unique identifier 09:18:38
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`can be used to determine any of these things, right? 09:18:41
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` A Well, what the language says is "to conduct 09:18:46
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`a search or lookup of the information identified," 09:18:49
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`so it may be -- so ask the question again in light 09:18:52
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`of what the language here says, if you could, 09:18:57
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`please. 09:18:59
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` Q Okay. Sure. 09:19:00
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` So my question is: The unique identifier 09:19:02
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`can be used to determine the location, the user 09:19:04
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`device, the time of transmittal, the program and/or 09:19:09
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`media content in the first media signal, the 09:19:11
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`available options for response to the user of the 09:19:14
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`device, and/or other identifying characteristic 09:19:16
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`information, right? 09:19:19
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` A Yes. The unique identifier can be using -- 09:19:21
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`Petitioner Hyundai Ex-1029, 0017
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`can be used to determine from among those things. 09:19:22
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` Q Okay. If you could go to Paragraph 36 and 09:19:27
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`read the first sentence to yourself. 09:19:42
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` A Okay. I've read it. 09:19:50
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` Q Now, you include examples in this paragraph 09:19:51
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`after the sentence from the specification that 09:19:54
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`discussed presenting on the primary and/or ancillary 09:19:56
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`device, correct? 09:20:00
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` A Yes. 09:20:01
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` Q You cite to Column 14, Lines 5 to 13 and 09:20:02
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`Column 14, Lines 27 to 31 of the patent? 09:20:06
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` A I do cite to those, yes. 09:20:11
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` Q Both of those examples use the phrase 09:20:14
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`"and/or" when discussing presentation on the primary 09:20:15
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`and ancillary device, correct? 09:20:19
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` A Yes. 09:20:21
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` Q If you can read the next two sentences to 09:20:23
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`yourself and let me know when you're done. 09:20:26
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` A Starting...? 09:20:29
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` Q Starting after the parenthetical for the 09:20:30
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`citations. 09:20:33
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` A Okay. So "When discussing"? 09:20:34
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` Q Yes. Correct. 09:20:36
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` A Okay. 09:20:37
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` Okay. 09:20:53
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`Petitioner Hyundai Ex-1029, 0018
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` Q But the examples that you provide here 09:20:56
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`again only use the "and/or" phrase, correct? 09:20:58
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` A The examples here using -- well, the one 09:21:02
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`sentence says -- I'll just read the sentence here, 09:21:05
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`"While the specification contemplates that the first 09:21:08
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`and second media content may be presented separately 09:21:12
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`or together on the primary device and/or the 09:21:14
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`ancillary device, claim element 9[c] requires 09:21:19
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`concurrently presenting the 'first media content' 09:21:22
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`and 'second media content' together on 'an 09:21:25
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`output'" -- "an output of the first receiver module 09:21:28
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`or the second receiver module.'" 09:21:32
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` I believe that word should be "receiver," 09:21:35
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`not "receive." Typo there. 09:21:37
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` Q Okay. So my question is: The only 09:21:39
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`examples that you provide from the
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