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` UNITED STATES PATENT AND TRADEMARK OFFICE.
` FOR THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------x
` HYUNDAI MOTOR AMERICA,
` Petitioner,
` IPR2021-01303
` -vs- IPR2021-01305
`
` STRATOSAUDIO, INC.
`
` Patent Owner.
`
` -----------------------------------x
`
` August 17, 2022
` 1:44 p.m.
`
` Remote Zoom Deposition of Dr. Kevin C.
` Almeroth, Ph.D, taken by Petitioner, pursuant to
` Notice, in the IPR 2021-01303 and IPR 2021-01305
` actions, 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 2021
`Hyundai v StratosAudio
`IPR2021-01303
`Page 1 of 57
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` UNITED STATES PATENT AND TRADEMARK OFFICE.
` FOR THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------x
` HYUNDAI MOTOR AMERICA,
` Petitioner,
` IPR2021-01303
` -vs- IPR2021-01305
`
` STRATOSAUDIO, INC.
`
` Patent Owner.
`
` -----------------------------------x
`
` August 17, 2022
` 1:44 p.m.
`
` Remote Zoom Deposition of Dr. Kevin C.
` Almeroth, Ph.D, taken by Petitioner, pursuant to
` Notice, in the IPR 2021-01303 and IPR 2021-01305
` actions, 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 2021
`Hyundai v StratosAudio
`IPR2021-01303
`Page 1 of 57
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`Page 2
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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: 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 MR. SCHEIBELER:
` Q. Hello doctor, how are you?
` A. Pretty good. How are you?
` Q. Good. This is John Scheibeler
` from White & Case on behalf of patent owner
` Stratos.
` MR. SCHEIBELER: For the record we
` are taking this deposition in IPR 1221-1303
` and IPM 2021-1305.
` Q. Dr. Almeroth, do you understand
` all of my questions in the deposition unless I
` state otherwise are asking for your view from
` the standpoint as a skilled artisan in the
` relevant timeframe, right?
` A. Yes, I will try to make that
` assumption.
` Q. Thank you. If you could turn to
` the '307 patent. This is Exhibit 1001.
` (Exhibit 1001 previously marked for
` identification.)
` A. Okay.
`
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` KEVIN C. ALMEROTH, PH.D
` Q. Also just so you know, I have in
` Exhibit Share, I have your reply declaration, I
` also uploaded your original declaration in case
` you feel the need to refer to it. Right now I
` would like you to refer to the '307 patent,
` Exhibit 1001.
` A. Okay, got it.
` Q. If you could turn to claim 16.
` A. Okay.
` Q. Is claim 16 broader or narrow than
` claim 1?
` MS. HOGAN: Objection, form.
` A. You mean claim 11.
` Q. Excuse me, thank you. Is claim 16
` broader or narrower than claim 11?
` A. It should be -- well, the answer
` is, it should be narrower than claim 11, but
` whether or not Dr. Hart has done that through
` his claim construction is a different question.
` Q. What does the term further
` comprise indicate in claim 16?
` A. That there is an additional
` requirement as set forth after the further
` comprises.
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` KEVIN C. ALMEROTH, PH.D
` Q. Is that additional requirement in
` claim 16 also required by claim 11?
` A. Well, academically speaking, it
` should not be.
` Q. What are some examples of the data
` that enables the unique identification of at
` least one broadcast segment as required by
` claim 16?
` A. I have some good examples in the
` declaration. So let me pull that up. Looking
` at paragraph 59, there is a disclosure from
` Koerber. So a good example of what would meet
` claim 16 would be allocating as specific code
` to each broadcasting program or music title and
` ensure the uniqueness of the allocation.
` Q. On the previous page, paragraph
` 57, you opine that "claim 16 does not require
` that the unique identification be performed
` exclusively using elements from the data
` stream." Do you see that? The top of page 33
` of your declaration in 1305?
` A. Yes, I see that.
` Q. What is the minimum information
` required in the data stream for claim 16 to be
`
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` KEVIN C. ALMEROTH, PH.D
` met?
` A. The best that I could answer would
` be circular. It's whatever would be sufficient to meet
` the limitation.
` Q. If the data in the data stream
` includes title only, is it your opinion that
` claim 16 could be met?
` A. As a hypothetical it would depend
` on the system. So the information you're not
` providing in the hypothetical doesn't allow me
` to determine whether or not the title would
` enable a unique identification of the at least
` one broadcast segment.
` Q. Let's take a look at Alwadish
` figure 3 and assume for my hypothetical that we
` are looking at upper panel 52 of figure 3.
` A. Okay.
` Q. Further assume that all we had in
` that upper panel was the title consistent with
` my earlier hypothetical. So if Alwadish
` reported the title in this paper strip, is it
` your opinion that claim 16 could be met?
` (Witness reviewing document.)
` A. Okay, so your hypothetical is
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` KEVIN C. ALMEROTH, PH.D
` figure 3 from Alwadish for the portion of
` figure 3 that is printed 52, all it had was the
` title, and in that scenario your question is
` would that be sufficient to meet claim 16.
` Your hypothetical doesn't address whether or
` not the information was still in the system but
` wasn't printed, for example.
` So going back to Exhibit 1002,
` which is my opening declaration, paragraph 142
` based on Alwadish alone, it identifies what I
` relied on is the title, artist, catalog number
` pertaining to the reporting material that are
` transmitted and then also it discloses date,
` time and station frequency may be transmitted.
` So I'm assuming that you will
` clarify the hypothetical, but what I relied on
` is not so much that it's printed on the piece
` of paper, but that that information is transmitted
` and available in the receiver.
` Q. Assuming the data stream contained
` title only, in that hypothetical could claim 16
` be met?
` A. The first thing that I would say
` is that that is not what Alwadish teaches.
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` KEVIN C. ALMEROTH, PH.D
` With respect to a hypothetical of whether or
` not that would be sufficient, I would have to
` determine whether or not title by itself was
` sufficient to meet a unique identification of
` the at least one broadcast segment. It would
` depend on whether the answer to that question
` for title alone was yes or no.
` Q. If we go back to paragraph 57 of
` your report, your declaration, excuse me. You
` say, again, at the top of page 33, "the claim
` does not require that the unique identification
` be performed exclusively using elements from
` the data stream." What is the basis for that
` opinion?
` A. The claim language itself says,
` "wherein the data stream further comprises data
` that enables the unique identification of the
` at least one broadcast segment."
` Q. What is the meaning of enable?
` A. I don't have a dictionary in front
` of me to give you a dictionary definition. I
` think enable pretty much means enables.
` Q. You're not giving that some
` special meaning in your understanding of claim
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` KEVIN C. ALMEROTH, PH.D
` 16?
` A. I am not. I'm using the plain and
` ordinary meaning of a person skilled in the art
` would understand it. To be clear, I don't
` understand the term to mean that all of the
` information that would be used to perform the
` identification would exclusively need to use
` data in the data stream which is not a
` particularly eloquent way of pointing to the
` sentence at the top of 33 that we have been
` discussing.
` Q. Thank you, hence my question,
` what's the minimum information required in the
` data stream for claim 16 to be met?
` A. I think that's a nonsequitur.
` The information that would be required would be
` sufficient to enable a unique identification of
` at least one broadcast segment. And I can
` think of all sorts of potential scenarios that
` would meet that limitation, not the least of
` which are the examples provided in my
` declaration.
` Q. In Alwadish is it -- let's assume
` for a moment that Alwadish transmits in the
`
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` KEVIN C. ALMEROTH, PH.D
` data stream, title, artist and catalog number
` and in no instance identified date and time,
` either in the data stream or at the receiver.
` Let assume further there is no
` other information provided to the Alwadish
` receiver other than the title, artist and
` catalog number.
` In that instance is it your
` opinion that claim 16 would be met?
` MS. HOGAN: Objection, form.
` A. The first observation is it is no
` longer Alwadish, it is no longer one of the
` grounds that I identified in my declarations.
` So it is more just a hypothetical system. So
` the question would be whether or not title,
` artist and catalog would be sufficient to
` enable to unique identification of the at least
` one broadcast segment. I think the answer
` would depend on, it's circular, whether or not
` that information would be sufficient or not.
` Q. Well, okay. I understand your
` comment that it is not in Alwadish. I'm
` testing the scope of what you're saying in
` paragraph 57. Look at the last sentence of
`
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` KEVIN C. ALMEROTH, PH.D
` paragraph 57. You say "So the fact that
` elements from the data stream, e.g., title,
` artist and catalog number, are use in
` conjunction with other nonbroadcast elements,
` e.g., date and time, to enable unique
` identification is sufficient under this claim
` language." Do you see that sentence?
` A. I do.
` Q. So let's suppose that there was no
` nonbroadcast element, let's just suppose the
` fact was that elements from the data stream
` were title, artist and catalog number, is that
` alone sufficient data to enable unique
` identification of a broadcast segment?
` A. I don't have enough information to
` understand whether that hypothetical would meet
` the limitation or not. I don't know what
` information is available locally. I don't know
` if there is sufficient information in the data
` stream where you could process it to determine
` what the title, artist and catalog number were
` and then use some local date and time and that
` might be sufficient.
` We are pretty far outside the
`
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` KEVIN C. ALMEROTH, PH.D
` scope of the declaration because we are making
` assumptions that change what a person skilled
` in the art would understand about the
` disclosure in Alwadish. So I just don't know
` how that system would operate.
` Q. Let's suppose this claim is
` understood to mean one must look only at the --
` that the information coming over the data
` stream, and in that case if we look at
` Alwadish, would Alwadish meet this claim?
` (Witness reviewing document.)
` A. So again I'm pointing back to
` paragraph 142 of the opening declaration,
` Exhibit 1002, it points to column 4 line 48
` through 53 of Alwadish. Sorry, the first
` reference is to column 5 line 64 through column
` 6 line 11 and it says, "It is therefore contemplated
` that various sources of musical program
` material such a CDs and DATs will provide in
` addition to prerecorded musical program
` material identification information or data in
` digital form which data corresponds to that
` described in connection with figures 1 and 3
` for purpose of identifying the title, artist
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` KEVIN C. ALMEROTH, PH.D
` and catalog number pertaining to the pre
` recorded material."
` So again, I think Alwadish
` describes transmitting identification
` information. It includes as an example title,
` artist and catalog number. Restricting the
` hypothetical to title, artist and catalog
` number and ignoring the disclosure of
` identification information, ignores the
` teaching of Alwadish.
` So I think Alwadish teaches
` transmitting identification information and
` then gives some examples of what that could be
` or what it could include.
` So I'm not sure how to answer your
` question other than saying it is taught in
` Alwadish.
` Q. So you're not going to answer my
` question one way or the other?
` A. I thought I did. Frankly if I
` didn't, I'm happy for you to rephrase it.
` Q. Looking at the sentence that you
` have at the top of page 33 of your reply
` declaration, if it read the fact -- if it only
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` KEVIN C. ALMEROTH, PH.D
` referred to the elements in the data stream,
` title, artist, catalog number and the system
` did not have the date and time nonbroadcast
` element, could claim 16 be met?
` A. Okay, so then the answer is you're
` again changing Alwadish and ignoring disclosures that
` are inconsistent with your assumptions. Making
` it clear that you moved beyond the ground that
` has been instituted to some new and different
` and more limited disclosure, I don't have
` enough information about what that system would
` look like as to whether or not it was
` sufficient.
` If you had a system, however odd
` it might be, where you only ever transmitted a
` title, artist and catalog number one time in
` the entire existence of the system, then it
` would be sufficient.
` So it depends, it depends on other
` assumptions about the system and whether or not
` that information is ultimately sufficient to
` meet the limitation. It becomes circular.
` Q. Now, this sentence, this
` understanding that you have in paragraph 57
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` KEVIN C. ALMEROTH, PH.D
` that the claim does not require the unique
` identification being formed exclusively using
` the elements from the data stream, you didn't
` take that position in your opening report, at
` least you didn't make that -- you don't have
` that sentence in your opening report, right?
` A. I don't recall if it is in the
` opening report or not. Again --
` Q. Well it is not in 142?
` MS. HOGAN: Objection.
` A. That particular sentence is in
` response to positions that Dr. Hart has taken.
` I think ultimately I'm pointing to the same
` underlying citations and disclosures from
` Alwadish.
` Q. Sorry, I didn't mean to interrupt.
` But this idea that the -- this
` understanding that the claim doesn't require
` the unique identification be performed
` exclusively using elements from the data stream
` is not mentioned as a construction for claim 16
` in your opening report, right?
` MS. HOGAN: Objection, form.
` A. This is not a new claim
`
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` KEVIN C. ALMEROTH, PH.D
` construction position. It is the plain and
` ordinary meaning of the limitation itself. I
` offered the position in my opening declaration
` both pointing to information that was
` transmitted along with the broadcast. And that
` would be sufficient to meet the limitation
` whether or not the claim limitation is
` interpreted to be exclusively using elements
` from the data stream because of the portion
` that I pointed to across column five and six or
` based on information that could also be
` identified at the receiver.
` So I actually addressed both of
` those scenarios in the opening report or the
` opening declaration. I made the point here in
` response to the claim requirements that
` Dr. Hart has identified and disagreed with
` those positions and the response to Dr. Hart is
` what is new in the reply declaration. But the
` underlying opinions are still in the opening
` declaration.
` Q. Could you turn to the '307 patent
` and look at column 3 line 52 to 55.
` A. Okay.
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` KEVIN C. ALMEROTH, PH.D
` Q. When you're finished if you can
` turn to column 9 and look at lines 34 to 36.
` (Witness reviewing document.)
` A. Okay.
` Q. Would you agree that these two
` passages refer to aggregating data?
` A. Both of these passages refer to
` particular embodiments where it talks about
` aggregating data without being specific as to
` what the data that is being aggregated could
` include. And my understanding that it would be
` understood for that embodiment to be a broad
` range of data. I think that is consistent with
` what Dr. Hart testified to in his deposition.
` Q. Would you agree that the term
` aggregating data in these passages is mentioned
` in the context of data mining?
` A. I don't think I would agree with
` that characterization. It talks about
` aggregating data in one embodiment. It talks
` about aggregating data or data mining, so it's
` drawing a relationship between those terms, but
` I'm not sure that I would say it is in the
` context of data mining.
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` KEVIN C. ALMEROTH, PH.D
` Q. So you're saying aggregating data
` or the use of the word "or" between the two
` terms indicates they are the same or different
` or related? What is your view?
` A. I suspect it would be related.
` There would be a relationship there. I mean
` you could read the sentence for the purpose of
` aggregating data for sale to interested
` parties. You could read it to just say data
` mining, it would convey roughly the same
` concept. Data mining is a pretty broad term in
` terms of what kind of analysis and what types
` of data you're performing an analysis of.
` Again, I think that is consistent
` with what Dr. Hart testified to. So it is not
` limited in specific ways.
` Q. Now, if you turn to paragraph 21
` and 22 of your declaration, your reply
` declaration.
` A. Okay, I'm there.
` Q. These two passages refer to
` sorry -- in paragraph 21 you say that "the
` terms associated and associating indicate some
` relationship between two or more items." Do
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` KEVIN C. ALMEROTH, PH.D
` you see that?
` A. I do.
` Q. Now, if you don't mind, if you
` could look at 11[c], Element 11[C] of the claim
` and I could direct you to it or let me know if
` you need help getting there?
` A. I think I'm there.
` Q. So, Element 11[C] says "At least
` one computer processor configured to extract
` the media content identifying data from the
` data stream associating each media content
` identifying data element with at least one of a
` plurality of media content."
` Can you confirm that I read that
` into the record correctly?
` A. I believe you did.
` Q. Thank you. In the context of
` Element 11[C], does the term associating
` require action by an actor?
` (Witness reviewing document.)
` A. I'm not sure what that would mean.
` So it gets into a question of what would be
` sufficient to meet the limitation which is,
` again, kind of a scope question. With respect
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` KEVIN C. ALMEROTH, PH.D
` to what I've identify in the different grounds
` covered in the reply declaration, the opening
` declaration, I think I found something pretty
` explicit.
` As to whether or not there could
` be some inherent or implicit associating and
` that would be sufficient to meet the
` limitation, again, it would kind of depend on
` what the system was doing. You have to look at
` it and see and make some determination.
` Q. In the context of 11[c], does the
` term associating describe something that is
` carried out by the system in the claim?
` A. It would be the same answer.
` Q. So you can't say one way or the
` other?
` A. It's the same answer. And my
` answer had questions of addressing scope with
` respect to what I pointed to in the grounds. I
` think the declarations cover that regardless of
` how it is being construed. I got issues of
` scope that are addressed in the declaration.
` My understanding that the position Dr. Hart is
` taking here is inconsistent with other claim
`
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` KEVIN C. ALMEROTH, PH.D
` construction positions the patent owner has
` taken in other forums.
` So I mean considering all of those
` things, I've looked at what the term would mean
` even -- I've looked at whether or not
` Dr. Hart's construction is met by the prior art
` and concluded that it was. But I don't see
` anything in the limitation that is as narrow as
` what he is proposed the construction to be.
` Q. If you can go to 11[e], that is
` claim Element 11[e]?
` A. Okay.
` Q. What does selective outputting
` require?
` (Witness reviewing document.)
` A. That seems to be a claim scope
` question. I could give you some examples that
` I've identified in the prior art that are the
` issue and the grounds of the two petitions to
` give you examples of what selective outputting
` could be. But in terms of trying to define the
` meets and bounds of the claim into what
` selective outputting would require, I haven't
` had to take that step. It has been sufficient
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` KEVIN C. ALMEROTH, PH.D
` for my analysis to point to things that I think
` would meet the limitation of selectively
` outputting.
` Q. Maybe we can look at Curtain. How
` does Curtain meet the limitation of selective
` outputting?
` A. This starts in paragraph 33 of the
` reply declaration. There is a couple of
` different instances that are summarized here.
` And then ultimately I could also point you back
` to the disclosures in the opening declaration
` since that is also the basis of what my
` opinions are.
` But the examples that are provided
` in the context of Curtain, there is a process
` here involved where Curtain establishes a
` network connection, extracted music information
` that is store in the electronic memory, it's
` transmitted to a music server, that music
` server used that extracted information and then
` presents that information to the user via the
` network connection.
` So there is a couple of examples
` in that teaching of selectively outputting.
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` KEVIN C. ALMEROTH, PH.D
` There is at least the example of selectively
` outputting the information that was stored when
` the server transmits that information back to
` the user for display. And that's address in
` subsection B paragraphs 35 and 36.
` There is also the discussion that
` the stored information that is transmitted out
` and comes back is used in the interface to
` facilitate a user making a purchase, is also
` selectively presenting that information via the
` interphase.
` Then of course, Dr. Hart took
` issue the fact that the specifics in the
` interface weren't described, and that's in
` subsection C paragraph 37 and 38.
` Q. Does selective outputting require
` action by a person using the system? In the
` context of your Curtain analysis, does
` selective outputting require action by a user --
` by a person using the system?
` MS. HOGAN: Objection, form.
` A. I'm not sure how to answer that
` question. I relied on disclosures in Curtain
` where there is selective outputting in several
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` KEVIN C. ALMEROTH, PH.D
` instances. Regardless of whether or not you're
` evaluating either a system or a method claim,
` you have the teaching in Curtain, whether or
` not it necessarily requires the action of a
` user would get into claim construction issues
` around capability of the system or performance
` of the method. I haven't had to take positions
` on those questions because it wasn't necessary
` for the opinions that are rendered in the
` declaration.
` Whether you're required or not, a
` person skilled in the art would understand that
` that is what the system in Curtain does.
` Q. How about for Alwadish, in your
` mapping of Alwadish on this element, are you
` relying on action of the user to -- are you
` relying on action of the user in Alwadish's
` system to meet the selective outputting
` limitation of 11[e]?
` A. Whether or not the user takes an
` action or not I don't believe makes a
` difference of how a person skilled in the art
` would understand the teaching of Alwadish as it
` relates to disclosing limitations either in the
`
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` KEVIN C. ALMEROTH, PH.D
` system claims or the method claims at issue
` across the two IPRs.
` Whether or not a user action is
` required seems to be more a question related to
` whether or not there is direct or indirect
` infringement which is obviously not within the
` scope of the opinions that I have offered in
` these declarations.
` Q. Focusing on the '307 claims. Are
` you saying that whether or not a user takes
` action, Alwadish still meets the selective
` outputting portion of 11[e]?
` A. That is not what my testimony was.
` A person of skill in the art would understand
` the disclosure of, you focused on Alwadish,
` it's independent of whether or not there are
` user actions required in order to make the
` system perform a limitation or not. Again, it
` gets into the question of whether or not the
` claim requires near capability or whether or
` not a user action is required.
` However those issues are
` suggested to be required, whether or not one
` interpretation is the claim requires user
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` KEVIN C. ALMEROTH, PH.D
` interaction or another interpretation is no
` user action is required, doesn't affect my
` opinions with respect to what I think a person
` of skill in the art would understand based on
` the teaching of the reference.
` So it is not even an issue that
` becomes relevant for whether or not the
` references is disclosed in the limitation in
` the context of this declaration.
` Q. Looking again at 11[e], does
` Element 11[e] require presentation, then
` selection, then output in that order?
` A. I don't recall taking a position
` on whether or not there was an ordering
` requirement in the opening declaration. I
` understand that Dr. Hart has alleged there is
` an ordering requirement and I have addressed
` the various combinations under the assumption
` that there is an ordering requirement. So that
` regardless of whether or not there is an
` ordering requirement or not, I've offered
` opinions that at lea
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