`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` FOR THE PATENT TRIAL AND APPEAL BOARD
`
`HYUNDAI MOTOR AMERICA, )IPR2021-01303
` Petitioner, )U.S. Patent
` )No. 8,688,028
` vs. ) and
` )IPR2021-01305
`STRATOSAUDIO, INC., )U.S. Patent
` Patent Owner. )No. 8,903,307
`_______________________ )
`
` REMOTE DEPOSITION OF
` KEVIN ALMEROTH
` Santa Barbara, California
` Monday, April 4, 2022
`
`Reported By:
`CATHI IRISH, RPR, CRR, CLVS
`
`212-267-6868
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`Veritext Legal Solutions
`www.veritext.com
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`516-608-2400
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`StratosAudio Exhibit 2018
`Hyundai v. StratosAudio
`IPR2021-01303
`Page 1 of 148
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` April 4, 2022
` 11:00 a.m. Eastern
`
` Remote deposition of KEVIN
` ALMEROTH, Ph.D., with all participants
` appearing via videoconference, before
` Cathi Irish, a Registered Professional
` Reporter, Certified Realtime Reporter,
` and Notary Public of the State of
` New York.
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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, New York 10020
` BY: JOHN SCHEIBELER, ESQ.
` HALLIE KIERNAN, ESQ.
`
` O’MELVENY & MYERS LLP
` Attorneys for Patent Owner
` 610 Newport Center Drive
` 17th Floor
` Newport Beach, California 92660
` BY: BRADLEY M. BERG, ESQ.
` CAITLIN P. HOGAN, ESQ.
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`K E V I N A L M E R O T H, Ph.D.,
` called as a witness, having been duly
` sworn by a Notary Public, was examined
` and testified as follows:
`EXAMINATION
`BY MR. SCHEIBELER:
` Q. Good morning, Dr. Almeroth.
` A. Good morning.
` Q. Could you please state your full
`name for the record?
` A. Sure. Kevin Christopher
`Almeroth.
` Q. Thank you. I'm John Scheibeler.
`I'm with the law firm White & Case and I
`represent StratosAudio in these
`proceedings. For the record, we're taking
`this deposition in connection with two IPR
`proceedings that Hyundai Motor America has
`brought against StratosAudio, Inc. The
`first proceeding is IPR 2021-01303 in
`which the petitioner Hyundai has
`challenged the patentability of certain
`claims of U.S. patent 8,688,028. Second
`proceeding is IPR 2021-01305 in which
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`petitioner Hyundai has challenged the
`patentability of certain claims of U.S.
`patent 8,903,307.
` Dr. Almeroth, I have loaded in
`the Exhibit Share folder for the virtual
`deposition that we're taking a number of
`exhibits and I would like you to identify
`in the Exhibit Share folder your
`declaration from the 1303 proceeding and
`your declaration from the 1305 proceeding.
`These are Exhibits 1002 in both
`proceedings. Do you see those
`declarations in the folder?
` A. I do.
` Q. And these two declarations, that
`is Exhibit 1002 from the 1303 proceeding
`and Exhibit 1002 from the 1305 proceeding
`are the declarations that you submitted in
`support of Hyundai's petition; correct?
` A. Correct.
` Q. Did you do any substantive
`preparation for the deposition today?
` A. I did.
` Q. What did you do?
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` A. I reviewed my declarations. In
`the process of doing that, I also looked
`at underlying patents so for this one, the
`028307 I looked at the references that I
`cited to in those declarations and I also
`reviewed the institutional decisions for
`those two proceedings, and I also met with
`counsel virtually.
` Q. With whom did you meet?
` A. With Caitlin and with Brad.
` Q. Did you meet with anyone else in
`preparation for your deposition?
` A. No.
` Q. And for how long did you prepare
`for your deposition today?
` A. Most of Friday and some of
`yesterday afternoon.
` Q. In preparing the declarations in
`the 1303 and 1305 proceedings -- actually
`let me back up there for a minute.
` Do you understand what I mean by
`the 1303 and the 1305 proceedings?
` A. I do.
` Q. In preparing the declarations for
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`the 1303 and 1305 proceeding did you
`consult with anyone other than attorneys
`for Hyundai.
` A. I don't believe so.
` Q. And which attorneys for Hyundai
`did you work with in preparing
`declarations in the two proceedings?
` A. In conjunction with preparing my
`declaration, I would have had
`communication with the lawyers at
`O'Melveny which would have included both
`Brad and Caitlin. There might have been
`others. I don't recall who they were now.
` Q. And approximately how many hours
`did you spend preparing each declaration
`if you can remember?
` A. For the two declarations, they
`are nearly identical, likely would have
`been in the range of about 30 hours plus
`or minus.
` Q. If you could pull up the 1305
`declaration, I'll be referring to that for
`the most part today and you just answered
`that the two declarations are nearly
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`identical. I'll try to point out where
`the text is identical and where the text
`differs if needed. If you could go to the
`1305 declaration and go to paragraph 30.
` A. Okay.
` Q. And I'll represent to you that
`this same paragraph 30 appears in the
`1305 -- 1303 declaration.
` In preparing your declaration,
`did you consider any documents those
`listed in paragraph 30 of your
`declaration?
` A. I'm sorry, could you repeat the
`question? I thought you were going to ask
`if I considered anything else but I didn't
`quite hear.
` Q. I missed it. Sorry.
` In preparing your declarations,
`did you consider any documents beyond
`those listed in paragraph 30 of your
`declaration?
` A. I think paragraph 30 is an
`accurate recitation of what I considered
`in forming the opinions in these
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`declarations.
` Q. Thank you. Without revealing the
`contents of any communications with
`attorneys, can you give me an idea of the
`process you went through to prepare your
`declaration?
` A. Generally the process would have
`been to review the patents, the file
`history, to review the references that
`were to be at issue and the grounds and
`then go through a process of reviewing
`those references to determine if
`limitations were met or not, and then I
`would have gone through the process of
`writing up those opinions in the
`declaration, and obviously there's the
`supporting opinions with respect to my
`background and state of the art and
`descriptions of the references and the
`other sections of the declarations.
` Q. Did you draft the declaration or
`was it in collaboration with counsel, how
`does it work?
` A. My recollection is that I would
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`prepare the first draft of the declaration
`and then there would be discussions with
`the attorneys subsequent to that
`declaration draft being prepared.
` Q. Okay. Could you turn to the same
`page paragraph 32 and paragraph 33 of your
`1305 declaration?
` A. I'm there.
` Q. Again, I'll represent that the
`same text appears in the same paragraphs
`of the 1303 declaration.
` In paragraph 33, you testify that
`to resolve the particular grounds
`presented in the petition, this petition,
`I do not believe any term requires
`explicit construction.
` Do you see that?
` A. I do.
` Q. Why was it that you testified
`that no term required explicit
`construction to resolve the grounds in the
`petition?
` A. There are references that I
`relied on for the opinions in the
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`declaration. The references that are at
`issue and the grounds I thought clearly
`disclosed those limitations so it
`wasn't -- there wasn't some particular
`term that I felt needed a definition and
`so maybe one way it would be in the
`reference, in a different way it would not
`be in the reference. Generally what I
`found for these two petitions in my
`declarations was when I went to look in
`the references, the limitations were
`present.
` Q. And the sentence refers to
`grounds in the petition, so did you review
`the petition prior to signing your
`declarations?
` A. I don't recall if I saw the
`petition before I signed off on the
`declaration. I might have but I want to
`make it clear that the opinions that I
`have in the declaration are the opinions
`I've formed in this case. Certainly the
`petition could refer to those opinions but
`the opinions in the declarations are mine.
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` Q. Did you consider any particular
`issues of claim interpretation in coming
`to those opinions in the declarations for
`1303 and 1305 proceedings?
` A. I'm not sure what you mean by the
`question. I can explain what the
`presentation is.
` Q. Please.
` A. I'm not sure if you are asking if
`I considered particular constructions
`beyond plain and ordinary meaning or if I
`tried to provide specific definitions of
`plain and ordinary meaning terms or if I
`considered alternate constructions or I'm
`not sure what the scope of that question
`would be.
` Q. Well, let's try -- did you have
`an understanding of the plain and ordinary
`meaning of the terms and the challenge
`claims of the '028 and '307 patents?
` MR. BERG: Object to the form.
` THE WITNESS: I understood I was
` to apply plain and ordinary meanings
` since there were no terms that were
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` construed from my declaration or I
` think as part of the petition. As to
` specific definitions, I think the
` terms pretty much just were clear
` enough on their face so it's what I
` did.
`BY MR. SCHEIBELER:
` Q. If you could turn to paragraphs
`40 to 42 of your declaration. Take a
`moment to review those. While you do,
`I'll represent the same text appears in
`the 1303 declaration.
` A. Okay. I've skimmed it. It might
`help to hear the question and I'll consult
`with it if I need more.
` Q. Did any of your prior experience
`involve work specifically with radio
`broadcast systems?
` A. So let me answer this way. If
`you're asking specifically about radio
`frequency transmissions, yes, in the
`context of wireless networking. If you're
`asking about say, for example, radio
`broadcast over the Internet, yes,
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`intensive experience. If you're asking
`about FM, say, broadcast radio in that
`sense, I believe I have as well in that.
` Q. Do you have prior experience
`working with FM radio broadcast equipment?
` A. I do.
` Q. What's the extent of that
`experience?
` A. At least the experience that
`comes to mind is that kind of equipment
`has been brought up as a prior art system
`in other cases that I have worked on so
`I've looked at those prior art systems,
`essentially cart machines for being able
`to do FM radio broadcasting.
` Q. Have you ever designed an audio
`broadcast system like that described in
`the '307, '028 patent?
` MR. BERG: Objection to form.
` MR. SCHEIBELER: Patents.
`BY MR. SCHEIBELER:
` Q. I'm going to restate that,
`Dr. Almeroth.
` Have you ever designed an audio
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`broadcast system like that described in
`the '307 patent and the '028 patent?
` MR. BERG: Objection to form.
` THE WITNESS: I don't know that
` I've designed something that covers
` all of those patents but there's a
` good percentage of the material in
` those patents that I would answer yes
` to.
`BY MR. SCHEIBELER:
` Q. Does something specific come to
`mind?
` A. Yes. There's a number of
`projects, I think one of the very first
`prototypes that I worked on was an audio
`on demand tool and that would stream
`content over the network. There were
`multiple channels that were supported. A
`person could request a particular song via
`an interface and it would play over a
`multicast or broadcast channel depending
`on the network. That work continued to
`evolve over time to look at multichannel
`jukebox audio over the Internet. There
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`were discussions in the context of that
`work on how to implement multiple
`channels, how to be able to do advertising
`in that context. That's at least some of
`the work I was thinking that would be
`relevant.
` Q. Do you have experience working
`with the U.S. radio broadcast data systems
`standards known as RBDS?
` A. I think the short answer is yes.
` Q. What's the extent of that
`experience?
` A. I would have seen that standard
`in the context of work that I'd done
`previously. It might have been limited to
`litigation but I would have to go back and
`check. I might have seen either the
`standard or papers discussing the standard
`or systems relevant to the standard in my
`past work.
` Q. Have you ever designed a system
`or components of a system that utilize
`RBDS?
` A. I don't remember anything
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`specifically. As I sit here now I would
`have to probably go back and look. It's
`going on kind of 30 years where since I've
`first started working in this area so
`there might have been something at the
`beginning, for example, associated with
`how to send information inside bands, for
`example, but I would have looked at that
`standard, I would have developed systems
`in the context of that standard.
` Q. If you could turn to paragraph 42
`of your 1305 declaration. You state
`there, quote, I met the definition of a
`POSITA in 2000. You also state that
`you're able to render opinions from the
`prospective of a POSITA based on your
`knowledge and experience. What aspect of
`your knowledge and experience permit you
`to render opinions from the perspective of
`a person that's skill in the art?
` A. I can come up with some of the
`things that come to mind but there likely
`would have been others so, for example,
`relevant experiences to the topics in
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`paragraph 41 so the types of problems
`encountered in the prior art, so work that
`I was doing obviously at the time,
`obviously the work I was doing in
`conjunction with my students and the
`papers we were writing would cite to a
`number of other papers and systems that
`others at the time were working on so that
`would give me a fairly decent sense of
`what the state of the art was. That would
`also include things like prior art
`solutions to those problems so what other
`people had worked on, what innovations we
`were working on up until 2000, and the
`declaration says 2000 but in that ballpark
`so 1999, 2000 since we'd been working on
`problems, I as a grad student with my
`advisor and others in the lab started in
`about 1992 having a good sense of the
`evolution of the state of the art through
`those years proceeding 1999 and 2000
`giving a good sense as to problems and
`prior art solutions. Also being a grad
`student at that time watching the
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`evolution over those years going to
`conferences and trade shows also would
`give me a good sense how quickly things
`were developing, sophistication of the
`technology, again not only in the context
`of the research that I was doing but also
`in the prototypes that I was developing
`and the education of people in the field
`so this would span myself as a student in
`the years before my peers as students, the
`level of knowledge they would have when
`they were graduating, when I graduated
`with a master's in 1995 and a Ph.D. -- I
`think it was '94, and then a Ph.D. in '97.
`It was those peer groups that I could
`recall and considered in my evaluation and
`then the students that I was teaching
`basically right before I graduated with a
`Ph.D. and then as an assistant professor
`and then peer researchers and other people
`I would run into at trade shows would kind
`of all give me a sense of what the skill
`level of a person of skill in the art
`would be.
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` Q. Thank you. What I would like to
`do is switch over to the Curtin reference.
`It's labeled as Curtin.
` A. Okay, I've got the pdf.
` Q. For the record, I'm showing you
`the Curtin reference which is petitioner
`Exhibit 1010. Do you see that?
` A. I do.
` Q. If you go to paragraph 63 of your
`declaration, there you state that Curtin,
`quote, relates generally to systems for
`purchase and delivery of music or other
`information and more particularly to
`techniques for allowing users to identify
`and purchase music or other information
`associated with a particular broadcast
`from a radio station.
` Do you see that?
` A. I do.
` Q. I'd like to go to Curtin Figure
`1.
` A. Okay. I also have unmarked
`copies of declarations in the references
`so to the extent you're showing me
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`different pieces, I might kind of look at
`both at the same time.
` Q. Okay.
` A. I have Figure 1 up.
` Q. I just want to make sure I
`understand. You might need to refer back
`to the declaration, is that what you're
`saying?
` A. No, I think it was you hadn't
`asked but I have paper copies of
`declarations, patents and prior art
`references so sometimes if you're asking
`about multiple sections at the same time,
`I'll have like one section up on the pdf
`on the screen and I'll have the other
`section up on the paper copy just so I can
`cross-reference stuff if your questions go
`in that direction.
` Q. And that's excellent because
`that's exactly where I'm going to go and I
`would like to talk about Figure 1 and in
`particular I'll be kind of tracking the
`text at columns 3 and 4, the specification
`of the Curtin patent so it will be good if
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`you could have both Figure 1 and column 3
`and 4 up before you to move things along
`more smoothly.
` A. Got it.
` Q. So Figure 1 of Curtin shows a
`block diagram of an exemplary digital
`audio broadcast receiver with music
`information storage capability; right?
` A. It does. I think you were
`reading from column 3 about line 9 or so.
` Q. Exactly, and I'll be sticking
`close to the specifications for the most
`part here.
` So the system in Curtin Figure 1
`includes a digital audio broadcast
`receiver 102 and a receiving antenna 104;
`right?
` A. It does, in kind of disembodiment
`of Curtin.
` Q. And the digital audio broadcast
`signal received by antenna 104 is applied
`to a radio frequency demultiplex and
`decode element 106; right?
` A. There I think that's right if
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`what you said was consistent with column 3
`about line 30.
` Q. And at column 3, lines 31 to 33,
`the specification states that the digital
`audio broadcast signals may be a hybrid
`in-band on-channel FM signal which has an
`analog FM host and one or more digital
`sidebands.
` Did I read that correctly?
` A. Not quite. I mean I think I'm
`not sure if you said, for example, but
`there's the e.g., in there so at least in
`this portion, that's one of the examples
`that identifies as to how the reception
`can occur. It's obviously not the only
`one in the specification that's
`contemplated.
` Q. And the specification further
`says there that the analog FM host
`corresponds to a conventional analog FM
`signal and digital audio information is
`transmitted in sidebands; right?
` A. The first part of that sentence
`says in this case so that's with this
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`particular description. Obviously there
`are other embodiments contemplated.
` Q. Now, could you read column 3,
`lines 37 to 50 to yourself? And then I
`have some questions about that paragraph.
` A. Okay.
` Q. Now, this paragraph says the,
`quote, digital music information is
`transmitted in one or more digital
`sidebands of the incoming DAB signal;
`right?
` A. It says that for the purposes of
`this illustrative embodiment. Again I
`think there are other portions that
`describe different ways in which the
`various audio signals can be received.
` Q. Okay. But it does say that the
`digital music information is transmitted
`in one or more digital sidebands of the
`incoming DAB signal; right?
` A. I think that's part of what it
`says. It says for this particular
`embodiment and then it goes on to describe
`other embodiments and capabilities of what
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`the system would be here.
` Q. Okay. It further says that it
`also assumes that the digital audio
`information is transmitted in a compressed
`format.
` Do you see that?
` A. I do.
` Q. And then at line 48, last
`sentence of that paragraph, it says, "The
`digital audio information may correspond
`to e.g., a particular song or other piece
`of music broadcast by the system."
` Do you see that?
` A. I do.
` Q. What's the difference between,
`quote, digital music information in that
`paragraph and the, quote, digital audio
`information in that paragraph?
` A. Let's see if it uses those terms
`earlier.
` Okay, so if you look back in
`columns 1 and 2, it talks about -- the
`title is the purchase -- methods and
`apparatus for identification and purchase
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`of broadcast digital music and other types
`of information. The term, for example, at
`column 2 about line 21, it says, "In view
`of the foregoing, it is apparent that a
`need exists for improved techniques to
`permit users to purchase digital music or
`other information corresponding to a
`broadcast of the DAB system or other type
`of communication system."
` Column 2, line 35 it also talks
`about "In accordance with the invention,
`identification information is extracted
`the from a current broadcast of a piece of
`music or other type of information of
`interest to a user, and stored in a memory
`or other storage device, in response to a
`user command."
` So in columns 1 and 2, I think it
`describes a variety of types of
`information. Sorry, one other piece.
` Column 2, about line 43,
`"Examples of such identification
`information in the case of a piece of
`music include" and then it goes on from
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`there.
` So I think there at least in the
`first couple of columns a variety of
`different types of information that are
`described and for digital music, it gives
`some particular examples so by the time
`you get to column 3 and it's describing
`digital music information, I think that in
`the context of other disclosures and in
`column 1 and 2, it's a fairly broad set of
`possible information.
` And then when you asked about the
`digital audio information, that looks to
`be primarily referring to the audio itself
`for a particular song. At least there
`might be other portions of the
`specification that describe in more detail
`what's within scope of either of those two
`terms but I think at least as examples,
`the ones I've pointed to are what are
`discussed in a couple of places.
` Q. So based on what you've pointed
`to, would you agree that digital music
`information as an example corresponds to
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`identification information extracted from
`a broadcast signal?
` A. No, I think that's too narrow. I
`think the specification describes a lot of
`different kinds of information. Some of
`it could be identification information,
`some of it could just be information about
`the music, for example. It may not
`necessarily identify it depending on how
`specific you want the identification to
`be. I think it also would include
`information that is specific enough to
`identify the particular song. I believe
`there's even discussions where there's
`information sufficient to identify
`specific instances of the music so I think
`it's broader than your question asked.
` Q. And can digital information as
`used in the paragraph at column 3, line 37
`to 49 encompass the media content?
` MR. BERG: Objection to form.
` THE WITNESS: So now you're using
` terms from the '307 and '028 patent.
` I'd have to go and check and see if I
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` pointed to the digital music
` information as being media content of
` the claims. I can certainly do that
` if you'd like. Otherwise I just defer
` to what's in the declaration.
`BY MR. SCHEIBELER:
` Q. We'll come back to it in a
`minute. Let's go to the next paragraph.
`If you can read the next paragraph to
`yourself, that is the paragraph on column
`3, lines 51 to 63.
` Actually before we go there, is
`there a difference between digital music
`information and digital audio information
`as those terms are used in the paragraph
`at column 3, lines 37 to 49?
` A. I would probably have to look. I
`mean based on the paragraph we were
`looking at, certainly there are examples
`of where the digital music information
`could be like what's described in column 2
`as an example and then in the context of
`column 3, the digital audio information
`typically would be more, like it says as
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`an example, a particular song or other
`piece of music broadcast by the system but
`I don't know that Curtin ever defines
`those two terms in a way that they are
`mutually exclusive.
` So, for example, in the context
`of what might be digital music
`information, potentially it could send a
`snippet of the song or the lyrics or some
`other piece of information that might
`actually be music information but I think
`primarily the example that it's describing
`would be the digital audio information
`would be as it says, a particular song or
`other piece of music as an example, and
`then the digital music information would
`be the variety of types of other
`information related to a particular song.
` Q. Okay. If you could go to the
`next paragraph at column 3, line 51 to 63
`and read that to yourself and let me know
`when you're ready.
` A. Okay, I've read it.
` Q. Now, this says that "The RF
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`demultiplex and decode element 106
`separates the digital sidebands from the
`host carrier, performs appropriate channel
`decoding operations, and delivers a
`corresponding compressed digital audio
`bitstream to an audio decompression
`element 108."
` The text further says that the
`audio decompression element decompresses
`the encoded digital audio bitstream to
`generate a corresponding stream of digital
`audio samples that are supplied to a
`d-to-a converter which converts the
`samples to an analog format to generate a
`reconstructed audio output signal that
`supplies the speaker.
` Do you agree?
` A. I think that's roughly what that
`paragraph says in part.
` Q. How does the RFP multiplex and
`decode element 106 create the compressed
`digital audio bitstream?
` A. At least in this paragraph, it is
`describing functionality of element 106 as
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`it relates to demultiplexing and decoding.
` Q. Okay. And how -- what process
`does the demultiplex and decode element
`perform to create the compressed digital
`audio bitstream?
` A. In the last question and this
`one, did you say -- I thought you said
`compressed.
` Q. I did.
` A. Okay. At least based on this
`paragraph, it's describing demultiplexing
`and decoding, not encoding.
` Q. If you look at the first sentence
`starting at line 51 and read that to
`yourself.
` A. Okay.
` Q. That there says that the
`demultiplex and decode element 106
`delivers a corresponding compressed
`digital audio bitstream to an audio
`decompression element 108; right?
` A. It does.
` Q. So the output of 106 is
`compressed digital audio bitstream; right?
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` A. I think in one example as it
`describes from the previous paragraph what
`could be transmitted is something that's
`compressed and so after the separation,
`one of the components that you could be
`left with is a compressed digital audio
`bitstream, but again that's the
`descript