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` UNITED STATES PATENT AND TRADEMARK OFFICE
` FOR THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------x
` HYUNDAI MOTOR AMERICA,
` Petitioner,
` IPR2021-01267
` -vs-
` STRATOSAUDIO, INC.
` Patent Owner.
` -----------------------------------x
` August 17, 2022
` 12:02 p.m.
`
` Remote Zoom Deposition of Dr. Kevin C.
` Almeroth, Ph.D, taken by Petitioner, pursuant
` to Notice, in the IPR 01267 action, with the
` Witness located in Santa Barbara, California,
` before William Visconti, a Shorthand Reporter
` and Notary Public within and for the State of
` New York.
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`StratosAudio Exhibit 2017
`Hyundai v StratosAudio
`IPR2021-01267
`Page 1 of 69
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` FOR THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------x
` HYUNDAI MOTOR AMERICA,
` Petitioner,
` IPR2021-01267
` -vs-
` STRATOSAUDIO, INC.
` Patent Owner.
` -----------------------------------x
` August 17, 2022
` 12:02 p.m.
`
` Remote Zoom Deposition of Dr. Kevin C.
` Almeroth, Ph.D, taken by Petitioner, pursuant
` to Notice, in the IPR 01267 action, with the
` Witness located in Santa Barbara, California,
` before William Visconti, a Shorthand Reporter
` and Notary Public within and for the State of
` New York.
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`StratosAudio Exhibit 2017
`Hyundai v StratosAudio
`IPR2021-01267
`Page 1 of 69
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` A P P E A R A N C E S:
` WHITE & CASE LLP
` Attorneys for Petitioner
` 1221 Avenue of the Americas
` New York, NY 10020
` BY: HALLIE KIERNAN, ESQ.
` hallie.kiernan@whitecase.com
` JOHN SCHEIBELER, ESQ.
` john.scheibeler@whitecase.com
` TIMOTHY KEEGAN, ESQ,
` timothy.keegan@whitecase.com
`
` O'MELVENY & MYERS LLP
` Attorneys for Patent Owner
` 610 Newport Center Drive
` Newport Beach, CA 92660
` BY: CAITLIN P. HOGAN, ESQ.
` chogan@omm.com
` BRADLEY M. BERG, ESQ.
` bmberg@omm.com
`
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` IT IS HEREBY STIPULATED AND AGREED
` by and between the attorneys for the
` respective parties herein that filing and
` sealing be and the same are hereby waived.
` IT IS FURTHER STIPULATED AND AGREED
` that all objections, except as to the form
` of the question, shall be reserved to the
` time of the trial.
` IT IS FURTHER STIPULATED AND AGREED
` that the within deposition may be signed
` and sworn to before any officer authorized
` to administer an oath with the same force and
` effect as if signed and sworn to before the
` Court.
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` K E V I N C. A L M E R O T H, P H. D,
` having been first duly sworn by the Notary Public,
` was examined and testified as follows:
` EXAMINATION CONDUCTED BY MS. KIERNAN:
` Q. Good morning Dr. Almeroth, can you
` state your full name for the record please?
` A. Kevin Christopher Almeroth.
` Q. Is there any reason that you
` cannot give full and complete testimony here
` today that you're aware of?
` A. No.
` Q. Since you were last deposed I
` believe in April of this year in the same
` matter has there been any change to your
` experience or your CV that you're aware of?
` A. There is probably -- actually, no,
` I think the last case I was deposed in was this
` one. I think I served on some additional
` program committees, so there might be some
` incremental updates to my CV.
` Q. I'm going to ask you to open in
` Exhibit Share, Exhibit 126 for the '081
` proceeding. I believe 126 is the next one. We
` could double-check it.
`
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` KEVIN C. ALMEROTH, PH.D
` (Exhibit 1026 previously marked for
` identification.)
` A. I have that open.
` Q. Just to clarify, I misspoke, it
` should be Exhibit 1026. Do you recognize this
` exhibit, Dr. Almeroth?
` A. I do.
` Q. This exhibit is the "Reply
` Declaration of Dr. Kevin C. Almeroth in Support
` of Petition for Inter Parties Review for U.S.
` Patent No. 8,166,081." Is that correct?
` A. Correct.
` Q. If I refer to the '081 patent
` throughout this deposition will you understand
` that to be patent number 8,166,081?
` A. Yes.
` Q. Can you please go to paragraph 3
` of Exhibit 1026 and let me know when you're
` there?
` A. I'm there.
` Q. Paragraph 3 provides the list of
` materials you reviewed and considered in
` forming the opinions in this reply declaration;
` is that correct?
`
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` KEVIN C. ALMEROTH, PH.D
` A. I believe that's correct.
` Q. Sitting here today, are you aware
` of any materials that are not listed in this
` paragraph or otherwise cited in Exhibit 1026
` that you reviewed and considered in forming
` your opinions?
` A. Not that come to mind.
` Q. Can you please go to paragraph 19
` of Exhibit 1026 and let me know when you're
` there?
` A. Okay, I'm there.
` Q. And if you could briefly review it
` and let me know when you're done?
` (Witness reviewing document.)
` A. Okay.
` Q. Is it fair to say that paragraph 19
` relates to a discussion of Element 9[a] of the '081
` patent lists specifically the "data enabling
` identification of a specific instance of the
` first media content"?
` A. I believe that is correct, that
` paragraph appears in the section dealing with
` Element 9[a].
` Q. In paragraph 19 you disagree with
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` KEVIN C. ALMEROTH, PH.D
` Dr. Moon's opinion that Element 9[a] requires
` distinguishing between multiple instances of
` the same media content; is that correct?
` A. There is multiple points in this
` paragraph the way it is set out I disagree with
` his claim construction position, but then
` ultimately offer the opinion that even to the
` extent that if he were correct, the limitation
` is still disclosed within Noreen and the other
` references.
` Q. Let's just focus on the first part
` where you disagree with Dr. Moon's opinion.
` You state specifically around the middle of
` this paragraph that "This plain and unambiguous
` language does not require distinguishing
` duplicate instances of the same content." Do
` you see that?
` A. I do.
` Q. I would like to understand your
` rationale a little bit.
` Do we agree that Element 9[a]
` requires data?
` A. I thought you were going to say
` more. The term data appears in the 9[a]
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` KEVIN C. ALMEROTH, PH.D
` limitation, but it's a certain type of data.
` It is described in the limitation.
` Q. My next question is that data in
` Element 9[a] must enable a certain type of
` identification; correct?
` A. It says "data enabling the
` identification of a specific instance of the
` first media content from the first broadcast
` median."
` Q. So the data is enabling
` identification of a specific instance of the
` first media content; correct?
` A. I think you're just reading the
` claim language. That is what the claim
` language says.
` Q. So if there were two instances of
` the first media content, Element 9[a] says that
` you must enable identification of a specific
` one of those instances. Isn't that a fair
` reading of the claim?
` MS. HOGAN: Objection, form.
` A. You have to be able to identify a
` specific instance of the fist media content.
` Again, to the extent that you're talking about
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` KEVIN C. ALMEROTH, PH.D
` different instances is, for example, a song
` played at two different times of day, I think
` the analysis that I include in the declaration
` shows that is what Noreen teaches. If you're
` dealing with a different scenario then you have
` to make that scenario clearer.
` Q. Let's focus on elements of the
` '081 patent. What is your understanding of the
` significance of the word specific before the
` word instance in Element 9[a].
` A. You have to identify a specific
` instance, specific modifies instance.
` Q. How does specific modify instance
` in Element 9[a]?
` A. I'm not sure what you mean by how.
` You mean if you're asking about ways in which
` the limitation could be met, ways in which you
` could identify an inspect instance, how that
` could be accomplished, I point you to the
` disclosures in Noreen as an example of how the
` claim limitation could be met. How specific
` modifies instance
` Q. Apart from examples in Noreen and
` looking just at the '081 patent, what is your
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` KEVIN C. ALMEROTH, PH.D
` understanding of how specific modifies
` instance?
` A. I'm not sure I understand the
` question. If you're asking for other ways,
` other examples in which you could identify
` specific instances, setting aside what I
` pointed to in Noreen, I guess I could give you
` some examples. If you're looking to something
` more examples. You will have to ask the
` question so I can understand it.
` Q. I'm not asking about identifying a
` specific instance. I would like to understand
` your earlier statement that specific modifies
` the word instance. How does specific modify
` the word instance in claim Element 9[a]?
` A. I think it is going to be the same
` answer. It says -- the limitation says, data
` enabling the identification of a specific
` instance. So obviously you're identifying
` something, you have a specific instance, you
` seem to be trying to break specific and
` instance apart and ask how specific modifies
` instance.
` I think the best that I can do is
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` KEVIN C. ALMEROTH, PH.D
` give you the examples that I have given in the
` context of this declaration as to examples of
` how to identify specific instances that would
` define the relationship between an instance and
` making it specific. Through examples of date
` and time, destination, address, other
` identifying kinds of information. Those would
` be the kinds of information that would describe
` how specific would modify instance.
` Q. If there were two instances of the
` same fist media content, would the data need to
` distinguish each of those instance in order to
` be data enabling identification of a specific
` instance?
` MS. HOGAN: Objection to form.
` A. So this goes to I think the point
` of paragraph 19 and the criticism I have of
` Dr. Moon. He seems to be adding additional
` requirements to the claim language. The claim
` doesn't say that you have to be able to
` distinguish. Again, even if that were a
` requirement, the information that I pointed to
` in Noreen would distinguish between different
` instances. But I mean, the claim language is
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` KEVIN C. ALMEROTH, PH.D
` pretty clear that you have to be able to
` identify a specific instance.
` Q. In your opinion if the data for
` two instances of same media content was also
` the same, would that data meet the claim
` Element 9[a] data enabling the identification
` of a specific instance of the fist media
` content?
` A. I don't understand your
` hypothetical.
` Q. Let's say that there is two
` instances of the same song and with each of
` those instances identical data is provided. Is
` it your opinion that that data is sufficient to
` be data enabling the identification of a
` specific instance of the fist media content?
` A. You're hypothetical is still
` somewhat incomplete. Ultimately I think Noreen
` describes where the information would be
` different for different instances that would
` allow you to identify a specific instance. I
` think it will allow you to distinguish between
` those two instances.
` As to what the scenario would look
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` KEVIN C. ALMEROTH, PH.D
` like if whatever data you were relying on would
` be the same, and that's not what Noreen
` teaches, kind of the focus of this part of the
` declaration. So I'm not really sure what
` you're hypothetical means.
` Q. I'm talking more generally than
` with relationship to Noreen. Setting aside
` Noreen. If we were to take a hypothetical
` where there are two instances of the same song
` and each of those instances has identical data
` provide with it, is it your opinion that that
` data would meet that Element 9[a]?
` MS. HOGAN: Objection, form.
` A. I mean the hypothetical is
` incomplete, so it is hard to answer that
` question. I mean two different instances, do
` you mean like a song played at two different
` times a day? The data that you have available
` doesn't include any protocol sequence numbers
` or date and timestamps?
` So literally the scope of your
` question there is there's no difference between
` though two things. Then the first thing that I
` would observe is, that's pretty far outside the
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` KEVIN C. ALMEROTH, PH.D
` scope of declaration. That is what are Noreen
` teaches.
` So setting aside that distinction,
` I think ultimately it would depend. I mean if
` your hypothetical is to assume that there is no
` data sufficient to identify a specific instance, then
` it becomes circular in the sense if it's clear
` if that is the assumption, the limitation is
` not met.
` Q. So I want to understand, are you
` saying that there would be need to be some type
` of difference between the data that is provided
` for each instance in order to be data enabling
` identification of a specific instance?
` MS. HOGAN: Objection, form.
` A. No, I'm not trying to define some
` example of what would be necessary for the
` claims. Again, if you go back to what I'm
` expressing in the declaration, I've identified
` the examples as disclose in Noreen. And there
` is the other grounds as well.
` My sense it a person of skill in
` the art reading Noreen would understand based
` on information that is referenced, the
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` KEVIN C. ALMEROTH, PH.D
` objective of what the system is trying to
` accomplish, that the information would be
` different in each instance. Basically that
` would be sufficient to demonstrate that Noreen
` teaches the limitation.
` But whether or not there is some
` other hypothetical for a system other than
` Noreen that could still meet the limitation in
` the claim, that was not my focus, especially in
` paragraph 19.
` Q. I'm trying to understand why you
` disagree that data enabling identification of a
` specific instance of the first media content
` would not require the ability to distinguish
` between multiple instances of the same content.
` A. Okay.
` Q. With that in mind, if the data for
` each instance is identical, a hundred percent
` identical, would that data in your opinion meet
` this limitation, Element 9[a]?
` A. To the first part of your
` question, if you're trying to understand why I
` said what I said in 19 where it says the claim
` in plain and unambiguous language does not
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` KEVIN C. ALMEROTH, PH.D
` require a distinguishing duplicate instance of
` the same content, the answer is because that is
` not the claim language. So you're substituting
` words and creating additional requirements.
` Now, whether or not it seems to be
` the case where you could have a system like
` Noreen that does both, whether or not there is
` some system where you could have data that
` enables identification of a specific instance
` but doesn't have to distinguish between the
` same content, either the same content is not
` there or there is some other information that
` is available.
` There could be an instance, I
` can't really think of one off the top of my
` head, where there is differences in that claim
` language. But when you start substituting in
` words into the claim that have the potential to
` created additional meaning, that's not what the
` claim language says.
` I think Dr. Moon in offering this
` claim construction in his scenario that talks
` about retransmissions, first of all is
` disclosed within Noreen. And second of all is
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` KEVIN C. ALMEROTH, PH.D
` modifying the claim in some way.
` Q. How is the need to distinguish
` between multiple instances of the same content
` modifying Element 9[a]?
` A. Sorry, could you repeat the
` question?
` Q. How is the need to distinguish
` between multiple instances of the same content
` modifying Element 9[a]?
` A. Because that is not the language
` of the claim. You're literally creating a
` claim requirement that is not in the words of
` the claim. So with respect to identifying
` whether or not the limitation is met,
` introducing additional words and requirements
` is not what the claim says.
` Q. So it is your opinion that Element
` 9[a], the data enabling identification of a
` specific instance of the fist media content
` would not need to distinguish between multiple
` instances of the same content?
` A. It doesn't require the
` distinguishing duplicate instance of the same
` content. Though, again, if the interpretation
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` KEVIN C. ALMEROTH, PH.D
` is that that's what the claim requires, then
` that is clearly in Noreen.
` Just to be clear, this is all in
` the context of paragraph 19 which is about
` Noreen. So it is also in the other grounds as
` well.
` Q. You're opinion, just to clarify
` that last statement. Your opinion at as to the
` meaning of data enabling the identification of
` a specific instance of the fist media content
` is the same for all of the prior art references
` you're reviewing here.
` A. Sorry, could you ask that again?
` Q. Yes. Your opinion as to the
` meaning of the data enabling the identification
` of a specific instance of the fist media
` content in Element 9[a] is the same regardless
` of which prior art reference we are discussing?
` A. Okay, so, I've applied the plain
` and ordinary meaning for this term through
` extensive evaluation in my opening declaration.
` Dr. Moon has introduced a claim construction
` argument in the patent owner response and I'm
` responding to that new proposed construction.
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` KEVIN C. ALMEROTH, PH.D
` And I think the gist of this section is to say,
` first of all, I don't think that claim construction
` position is justified. But even if it is, then
` I still believe it is disclosed in each of the
` prior art grounds for the reasons that are set
` forth note only in paragraph 19 which is for
` the grounds including Noreen, but then also the
` later ones that include Ellis 2005.
` So there is different paragraphs
` that addresses that limitation and I think it
` starts on page 25.
` Q. I think my question is a little
` simpler. I want to understand -- are you aware
` of any differences in your opinion regarding
` the meaning of this limitation of Element 9[a]
` as you have applied it for the prior art
` references?
` A. So that question presupposes that
` I've only applied one definition in my analysis and
` you say in the meaning you have applied. Well,
` I have actually considered multiple meanings of
` the plain and ordinary meaning as I believe it
` is expressed in the opening declaration and
` then the new claim construction position
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` KEVIN C. ALMEROTH, PH.D
` offered by Dr. Moon in this declaration.
` Q. But there are no differences
` between the plain and ordinary meaning of the
` term as you apply it in Noreen as compared to
` Ellis 2005, is that fair to say?
` A. I'm not sure that I understand the
` question. The plain and ordinary meaning that
` I used in the opening declaration was the same
` for both Noreen and Ellis 2005.
` Q. Okay, thank you.
` A. And then also considering
` Dr. Moon's proposal in the reply declaration,
` and that meaning for Noreen and for Ellis 2005.
` Q. Thank you, that was the answer to
` my question.
` Can you please turn to paragraph
` 22 of Exhibit 1026 and review it and let me
` know when you're finished.
` (Witness reviewing document.)
` A. Okay.
` Q. In the middle of paragraph 22, am
` I correct that it is your opinion that the
` identification information in the program
` subchannel in Noreen constitutes the uniquely
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` KEVIN C. ALMEROTH, PH.D
` identifying data specific to at least the
` second media content?
` A. Could you repeat the question?
` Q. Yes. So am I correct that it is
` your opinion that the identification information in
` the program subchannel in Noreen constitutes
` the uniquely identifying data specific to at
` lease the second media content?
` (Witness reviewing document.)
` A. I'm pointing to the identifying
` information in the program subchannel. The
` program subchannel here corresponds to the high
` quality digital program which is what the
` second media content is. And that's the first
` step of analysis.
` Then I also address in paragraph
` 23 that even under the assumption that Dr. Moon
` is correct, being able to identify the second
` media content is something that would have been
` obvious based on the other teachings of Noreen.
` So there is kind of two parts to the opinion.
` Q. Dr. Almeroth, can you open what is
` Exhibit 1005 in the '081 proceeding, Noreen.
` (Exhibit 1005 previously marked for
`
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` KEVIN C. ALMEROTH, PH.D
` identification.)
` A. I've got to open.
` Q. Can you please go -- before we do
` that. Dr. Almeroth, have you seen this exhibit
` before?
` A. Yes.
` Q. If I refer to Exhibit 1005 as
` Noreen, you will understand what I'm referring
` to?
` A. Yes.
` Q. So can you please turn to column
` 13 line 24 in Noreen and let me know when
` you're there?
` A. Okay, I'm there.
` Q. So column 13 around line 24
` provides or begins to provide an explanation of
` what the identification information may
` include; is that correct?
` A. I see where the sentence starts
` with the words "The identification information
` may include".
` Q. Just above that sentence Noreen
` explains that this is the identification information
` process from the program signal, is that
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` KEVIN C. ALMEROTH, PH.D
` correct?
` A. Let me look.
` (Witness reviewing document.)
` A. The sentence preceding it does
` talk about the mobile terminal identification
` information is processed from the program
` signal.
` Q. Is this the identification
` information that you're referring to as the
` uniquely identifying information in Noreen?
` A. I'm pointing to this as
` identification information and what it could
` include. That identification information when
` carried in the subchannel for the high quality
` content is then the same kind of -- the same
` types of identification information that can be
` carried for the high quality digital program
` which is then what I pointed to as the second
` media content.
` Q. This identification information
` may include program carrier frequency of the
` program signal; is that correct?
` A. That's the first one in the list.
` Q. This identification information
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` KEVIN C. ALMEROTH, PH.D
` may also include identification of the program
` signal and particular program to which the user
` is listening; is that correct?
` A. That's also on the list.
` Q. I'm sure you can see where I'm
` going with this. This identification information may
` also include identification of the broadcast
` station, correct?
` A. It does, and it says what it says
` in this portion of Noreen. I certainly won't
` dispute that.
` Q. To close the circle on this. It
` could also include the time of an advertisement
` or solicitation or a code identifying the
` advertisement or solicitation, correct?
` A. Those are the next items on the
` list. It continues from there.
` Q. Can you please turn to column 15,
` the paragraph beginning around line 20 of
` Noreen and review that paragraph to line 34 and
` let me know when you're done.
` (Witness reviewing document.)
` A. Okay, I see that.
` Q. The very start of this paragraph
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` KEVIN C. ALMEROTH, PH.D
` explains that this is an instance in Noreen "in
` the absence of identification information
` transmitted connection with the program
` signal". Do you see that?
` A. I do see that.
` Q. It goes on to say that "the
` controller, 403, might determine the frequency
` of the program carrier frequency of the program
` carrier."
` A. I see what you're reading.
` Q. So in your opinion is that
` frequency of the program carrier frequency a
` part of the program signal as described in this
` paragraph?
` MS. HOGAN: Objection, form.
` A. Now that you're talk about this
` portion of the specification it goes to a
` slightly different issue than what we were
` talking about in the context of paragraph 22.
` This goes to paragraph 41 of the declaration
` which talks about dependent claim 15 and it
` talks about the scenario where, quote unquote,
` the program signal is devoid of identification
` information as it was quoted in the institution
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` KEVIN C. ALMEROTH, PH.D
` decision.
` So I think you're mischaracterizing
` what Noreen says on this point and I've offered
` an opinion as to why that mischaracterization --
` why it's a mischaracterization. So maybe I'm
` trying to figure out how to answer your
` question in the sense I think the best that I
` can say is this section has been
` mischaracterized. I've addressed that in the
` reply declaration. In that context I'm not
` sure how to answer your question as you have
` asked it.
` Q. Let me try it this way.
` Is it your opinion in this
` paragraph of Noreen, the frequency of the
` program carrier frequency is included in the
` program signal?
` A. So I think what this paragraph is
` saying is that a person or what a person of
` skill in the art would understand it to say is
` Noreen is described a variety of ways in which
` information can be communicated for the
` different streams that are being transmitted.
` We already pointed out column 13,
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` KEVIN C. ALMEROTH, PH.D
` there is information about both the program
` stream and the high quality audio stream. So
` kind of the first and second stream, both of
` them have different sets of information that
` can be included. And then there is also an
` alternative that says, if there is more or less
` of information that is described as being
` carried along with the stream, additional
` information can be determined based on the
` information that is carried in the stream.
` So to the extent that you get into
` information enabling the specific identification, it is
` what is in the stream and then there is what
` you can also determine based on considering
` that information in total.
` Q. So in this paragraph what
` information do you contend is in the stream?
` A. I think Noreen doesn't limit what
` that kind of information can be. What it's
` saying is whatever set of information you
` have -- to be clear if you go back to paragraph --
` column 13, it lists a number of different
` examples. It uses and/or at line 32. So it
` says there could be a collective of the
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`516-
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