throbber
· · · · · ·UNITED STATES PATENT AND TRADEMARK OFFICE
`· · · · · · · · · · · · · ____________
`·
`· · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`· · · · · · · · · · · · · ____________
`
`· · · ·NINTENDO CO., LTD., and NINTENDO OF AMERICAN, INC.
`· · · · · · · · · · · · · Petitioner
`·
`· · · · · · · · · · · · · · · v.
`·
`· · · · · · · · · ANCORA TECHNOLOGIES, INC.,
`· · · · · · · · · · · · ·Patent Owner
`· · · · · · · · · · · · ______________
`·
`· · · · · · · · · · · · ·IPR2021-01338
`· · · · · · · · · · · · · IPR2021-1406
`
`·
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`·
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`·
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`· · · · · · · · · · ·VIDEO CONFERENCE DEPOSITION OF:
`· · · · · · · · · · · · · · ·DR. ANDREW WOLFE
`·
`· · · · · · · · ·TAKEN BY:· · Attorney for Patent Owner
`·
`· · · · · · · · ·DATE:· · · · April 22, 2022
`·
`· · · · · · · · ·TIME:· · · · 12:00 p.m. - 1:36 p.m.
`·
`· · · · · · · · ·PLACE:· · · ·Via Video Conference
`·
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`·
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`·
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`·
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`·
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`· · · · · Examination of the witness taken before:
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`· · · · · · · · · Jerry Lefler CSR RPR CRR CM
`· · · · · · · · · · · U.S. Legal Support
`·
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`·1· APPEARANCES:
`
`·2
`· · · · DAVID GOSSE, ESQ. (Via Video)
`·3· · · Fitch, Even, Tabin & Flannery, LLP
`· · · · 120 South LaSalle Street, Suite 2100
`·4· · · Chicago, Illinois60603
`· · · · Dgosse@fitcheven.com
`·5
`· · · · Counsel for Patent Owner
`·6
`
`·7· · · KYLE CANAVERA, ESQ. (Via Video)
`· · · · Perkins Coie, LLP
`·8· · · 11452 El Camino Real, Suite 300
`· · · · San Diego, California 92130
`·9· · · Canavera-ptab@perkinscoie.com
`
`10· · · Counsel for Petitioner
`
`11
`· · · · JON WRIGHT, ESQ. (Via Video)
`12· · · Sterne, Kessler, Goldstein & Fox PLLC
`· · · · 1100 New York Ave, NW Suite 600
`13· · · Washington DC 20005
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`14· · · Counsel for Roku and Vizio
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`15
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`·1· · · · · · · · · · · ·I N D E X
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`·2· · · · · · · · · · · · · · · · · · · · · · · · · · ·PAGE
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`·3· · · Direct Examination by Mr. Gosse· · · · · · · · · ·4
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`·4· · · Deposition Officer's Certificate· · · · · · · · ·49
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`·5· · · Errata Sheet· · · · · · · · · · · · · · · · · · ·50
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`·6
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`·7
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`·8
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`·9
`· · · · · · · · · · · · ·EXHIBIT INDEX
`10
`· · · · · · · · · · · · · · (NONE)
`11
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`·1· · · · · · · · · P R O C E E D I N G S
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`·2· · · · · ·DEPOSITION OFFICER:· Before we proceed, I will
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`·3· ask counsel to agree on the record that there is no
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`·4· objection to the Deposition Officer administering a
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`·5· binding oath to the witness remotely.
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`·6· · · · · ·Will all counsel please state your agreement on
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`·7· the record.
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`·8· · · · · ·MR. CANAVERA:· This is Kyle Canavera for
`
`·9· Nintendo.· Agreed.
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`10· · · · · ·MR. GOSSE:· This is David Gosse for Ancora.
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`11· Agreed.
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`12· · · · · ·Just to be clear, Jon, I don't know if you
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`13· agreed to swear the witness on the record.
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`14· · · · · ·MR. WRIGHT:· Agreed.
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`15· · · · · ·/////////////////////////////////////
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`16· · · THEREUPON,
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`17· · · · · · · · · · ·DR. ANDREW WOLFE
`
`18· · · was adduced as the deponent herein, and being first
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`19· · · duly sworn upon oath, was questioned and testified
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`20· · · as follows:
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`21· · · · · · · · · · ·DIRECT EXAMINATION
`
`22· BY MR. GOSSE:
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`23· · · Q.· ·With the preliminaries out of the way, good
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`24· morning, Dr. Wolfe.
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`25· · · A.· ·Good morning.
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`·1· · · Q.· ·I assume you've had your deposition taken before.
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`·2· · · A.· ·I have.
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`·3· · · Q.· ·Okay.· Well, I'll keep the introductories short.
`
`·4· The thing I like to always say is that as the witness,
`
`·5· you're entitled to a clear question.· So if you don't
`
`·6· understand something I've asked, just let me know and I'll
`
`·7· try to rephrase it in a way that makes more sense to you.
`
`·8· · · · · ·Is that okay?
`
`·9· · · A.· ·That's fine.
`
`10· · · Q.· ·Okay.· And on the flip side, I appreciate a clear
`
`11· answer wherever possible, so I might follow up with you on
`
`12· occasion, and I hope you don't mind that.
`
`13· · · A.· ·Okay.
`
`14· · · Q.· ·Just since we are remote, I'd like to confirm
`
`15· with you that there's no one else in the room with you
`
`16· there on your end.
`
`17· · · A.· ·There is no one else here.
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`18· · · Q.· ·Okay.· Are you in any -- are you in communication
`
`19· with anyone else from where you sit right now aside from
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`20· the people on the video chat?
`
`21· · · A.· ·No.
`
`22· · · Q.· ·Okay.· Do you have any communication devices in
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`23· the room with you right now?
`
`24· · · A.· ·There's lots of computers, but this is the only
`
`25· one that's turned on.
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`·1· · · Q.· ·Okay.· That works.
`
`·2· · · · · ·Just so you understand that any communication
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`·3· with other people during the deposition could be
`
`·4· discoverable and I might ask you questions about that
`
`·5· later.· Is that clear?
`
`·6· · · A.· ·I understand.
`
`·7· · · Q.· ·Okay.· Are there any circumstances that would
`
`·8· prevent you from providing truthful and accurate testimony
`
`·9· today?
`
`10· · · A.· ·No.
`
`11· · · Q.· ·Great.· Dr. Wolfe, what's the nature of your
`
`12· employment as we sit here today?
`
`13· · · A.· ·I am an academic year adjunct lecturer at Santa
`
`14· Clara University full-time.· I also have a consulting
`
`15· practice where I work with companies on various matters,
`
`16· primarily relating to intellectual property.
`
`17· · · · · ·I'm also on the Board of Directors of a company,
`
`18· a public company called Turtle Beach.
`
`19· · · Q.· ·Okay.· If you had to estimate, what fraction of
`
`20· your income comes from your consulting practice?
`
`21· · · A.· ·It varies over time.
`
`22· · · Q.· ·In the last two years maybe?
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`23· · · A.· ·I don't know.· It really just depends a lot.· My
`
`24· Turtle Beach compensation is primarily in stock, so the
`
`25· value of that varies widely.
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`·1· · · Q.· ·Okay.· All right.
`
`·2· · · · · ·We're going to be talking a little bit today
`
`·3· about your declaration in the two IPR proceeding.· We have
`
`·4· IPR 2021-1338.· And that's the one filed by Nintendo.· We
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`·5· also have IPR 2021-1406, which is the one filed by Roku
`
`·6· and Vizio.
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`·7· · · · · ·I mailed you a packet with papers.· I think both
`
`·8· of your declarations are in that packet.· So for purposes
`
`·9· of the record, I'd like to mark as Exhibit 1 --
`
`10· · · A.· ·Can I open this?
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`11· · · Q.· ·Yes, please.
`
`12· · · · · ·MR. WRIGHT:· David, this is Jon Wright.· I don't
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`13· think we should mark exhibits that are in the record as
`
`14· anything other than the exhibit number that we've already
`
`15· been marked, just for clarity in the proceeding and in the
`
`16· deposition transcript.· Does that make sense?
`
`17· · · · · ·MR. GOSSE:· That's fine with me.· We can proceed
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`18· that way.
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`19· · · · · ·MR. WRIGHT:· Okay.· Thank you.
`
`20· · · · · ·THE DEPONENT:· Okay.· I have those two
`
`21· declarations.
`
`22· BY MR. GOSSE:
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`23· · · Q.· ·Okay.· Just for purposes of the record, I'm going
`
`24· to be referring to Exhibit 1003 from the 1338 IPR.
`
`25· · · · · ·My understanding after review of both of the
`
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`·1· declarations is that there's not much in the way of
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`·2· differences between them.· Is that accurate?
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`·3· · · A.· ·I'm not aware of any substantive differences in
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`·4· my opinion.· The differences are things like the names of
`
`·5· the parties.
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`·6· · · Q.· ·Okay.· Perfect.
`
`·7· · · · · ·If there is something that comes up in the course
`
`·8· of your testimony where there's a difference between the
`
`·9· documents, kindly let me know.
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`10· · · A.· ·Okay.
`
`11· · · Q.· ·Otherwise, we'll assume that your testimony
`
`12· related to this Exhibit 1003 from 1338 IPR applies to both
`
`13· proceedings.
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`14· · · A.· ·Yeah.· I mean, I don't intend to check every
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`15· paragraph back and forth.· But to the extent that the
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`16· declarations are consistent, then my testimony would apply
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`17· to both.
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`18· · · Q.· ·Perfect.· Okay.· We want to keep things short
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`19· here today, if we can.
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`20· · · · · ·So with those preliminaries out of the way, if
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`21· you could turn to appendix A of the Exhibit 1003.
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`22· · · A.· ·Okay.
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`23· · · Q.· ·What is -- I'm sorry.· It's appendix A of
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`24· Exhibit 1003.· What is this document?
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`25· · · A.· ·It's a copy of my CV probably as of sometime in
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`·1· 2021.
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`·2· · · Q.· ·Okay.· Has anything about your employment changed
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`·3· since this CV was drafted?
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`·4· · · A.· ·The description of what courses I teach would be
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`·5· longer, but other than that, no.· My address has changed.
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`·6· · · Q.· ·Okay.· If I could direct your attention to page 2
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`·7· of your declaration.· There's a section there that begins
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`·8· "Work Experience."
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`·9· · · A.· ·Yes.
`
`10· · · Q.· ·Okay.· Great.
`
`11· · · · · ·In paragraph 8, it refers to some work you did
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`12· with Touch Technology.· It says you designed IO cards for
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`13· PC-compatible computer systems.· Do you see that?
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`14· · · A.· ·Yes.
`
`15· · · Q.· ·Do you recall as part of your work for Touch
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`16· Technology, did you do anything relating to the BIOS of a
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`17· PC?
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`18· · · A.· ·Yes.
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`19· · · Q.· ·What sort of things did you do?
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`20· · · A.· ·I worked device drives, and those device drivers
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`21· would directly interact with the BIOS.· And at times they
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`22· would replace BIOS functionality, like tapping into what
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`23· we called "interaffectors."
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`24· · · Q.· ·And were those device drivers for a Windows
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`25· system?· Probably not in 1983.
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`·1· · · A.· ·Sort of.· So, the first device that I worked on
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`·2· was intended to work with Windows 1.0, which we had a
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`·3· prototype of but not the final version.· Primarily they
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`·4· ran -- at that point, Windows ran on top of MS DOS, so the
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`·5· device drivers were at MS DOS and they were designed to
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`·6· provide touch input and touchpads for Microsoft mouse
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`·7· compatible things, like Microsoft Word and Microsoft
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`·8· Windows 1.0.
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`·9· · · Q.· ·Got it.· Let's flip over to page 7 of the
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`10· declaration.· There's a section there that begins "Level
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`11· of ordinary skill in the art."· Do you see that one?
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`12· · · A.· ·I do.
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`13· · · Q.· ·And the following page has a paragraph, it talks
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`14· a little bit about the legal framework for evaluating the
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`15· ordinary skill in the art.· And one of the items there is
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`16· the rapidity with which innovations are made.
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`17· · · A.· ·Yes.
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`18· · · Q.· ·In the context of developing your opinions on the
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`19· ordinary skill in the art, how did the rapidity with which
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`20· innovations are made play into your analysis?
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`21· · · · · ·MR. CANAVERA:· Objection, form.
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`22· · · · · ·THE WITNESS:· It was one of the factors that I
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`23· considered.
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`24· BY MR. GOSSE:
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`25· · · Q.· ·And at the time of the invention that's disclosed
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`·1· in the 941 patent, would you consider the rapidity to have
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`·2· been fast or slow in the relevant art?
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`·3· · · · · ·MR. CANAVERA:· Objection, form.
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`·4· · · · · ·THE DEPONENT:· I think "medium" is probably the
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`·5· most accurate.· PC BIOSes, for example, had been around
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`·6· for more than 15 years.· They were quite mature.· They
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`·7· were improving in an incremental manner.· They were not
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`·8· static, but they certainly weren't changing rapidly.· They
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`·9· had standardized.
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`10· · · · · ·There was a concept of a standard Windows PC by
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`11· that time, so again it was evolving.· But it was not in
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`12· the early stages of chaos the way some technologies are.
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`13· · · · · ·So it's -- I think it was what I would consider
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`14· ordinary for my field.· It was kind of in the middle of
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`15· its development cycle.
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`16· · · Q.· ·Okay.· Now, you characterized yourself as a
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`17· person of at least ordinary skill in the art, down in
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`18· paragraph 25.· Do you see that?
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`19· · · A.· ·Yes.
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`20· · · Q.· ·Would you agree that you have significantly more
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`21· skill than the ordinary person in the art?
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`22· · · A.· ·As of 1998 or as of today?
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`23· · · Q.· ·As of 1998.
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`24· · · A.· ·Yes.
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`25· · · Q.· ·And that would also be true:· You had more skill
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`·1· than the ordinary person of skill in the art as of 1996?
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`·2· · · A.· ·Yes.
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`·3· · · Q.· ·Okay.· Flipping over to page 10 of your
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`·4· declaration, paragraph 30, we can agree, right, that the
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`·5· priority date of the 941 patent is May 21st of 1998?
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`·6· · · · · ·MR. CANAVERA:· Objection, form.
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`·7· · · · · ·THE DEPONENT:· I assumed that for purposes of
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`·8· this proceeding.
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`·9· BY MR. GOSSE:
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`10· · · Q.· ·Okay.· Thinking back a little bit about the
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`11· ordinary skill in the art, if we could go back to page 8.
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`12· Sorry to jump around a little bit.
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`13· · · · · ·On page 8, you say that "the ordinary skill in
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`14· the art is, among other things, someone would have had at
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`15· least a BS degree in computer science, computer
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`16· engineering, or electrical engineering, and would have had
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`17· at least two years of experience."
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`18· · · · · ·Do you see that?
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`19· · · A.· ·Yeah.· You left out a few words.· I said, "Or
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`20· equivalent experience."· It doesn't need to be formal
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`21· education, but it needs to be equivalent to formal
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`22· education.
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`23· · · Q.· ·Sure.· Would the person of ordinary skill in the
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`24· art be someone working at a particular company?
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`25· · · A.· ·Not necessarily.· They could be an academic.
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`·1· They could be working in any one of the hundreds of
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`·2· companies that were involved in PCs at the time or they
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`·3· could have simply been somebody with training in these
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`·4· areas.
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`·5· · · Q.· ·Okay.· In that context, would an academic, or
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`·6· perhaps someone working at certain companies, have
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`·7· experience that would go well beyond the person of
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`·8· ordinary skill in the art?
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`·9· · · · · ·MR. CANAVERA:· Objection, form.
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`10· · · · · ·THE DEPONENT:· Some people would.
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`11· BY MR. GOSSE:
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`12· · · Q.· ·Okay.· People with more than two years of
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`13· experience, for example?
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`14· · · A.· ·There were certainly some people who had more
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`15· than two years of experience.
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`16· · · Q.· ·Okay.· And would people working in certain
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`17· environments or with certain technologies be exposed to
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`18· information or technologies that were beyond what the
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`19· person of skill in the art would be aware of?
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`20· · · · · ·MR. CANAVERA:· Objection, form.
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`21· · · · · ·THE DEPONENT:· Yes, there were certainly people
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`22· somewhere that had -- that were exposed to technologies
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`23· more sophisticated than what a person of ordinary skill
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`24· would be exposed to.
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`25· · · · · ·MR. GOSSE:· Okay.
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`·1· · · Q.· ·I want to back up just a little bit.· Just
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`·2· companies in that time period, for example.· Are you
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`·3· familiar with IBM?
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`·4· · · A.· ·Yes.· A very big company, but I'm familiar with
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`·5· many parts of it.· And I was working with them at that
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`·6· time.
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`·7· · · Q.· ·Okay.· What did you do with IBM around that time?
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`·8· · · A.· ·They were both a customer and a supplier in 1998.
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`·9· · · Q.· ·A customer in what sense?
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`10· · · A.· ·They used the chips that I was developing.· The
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`11· main chip I was working on in 1998 went into the first
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`12· Thinkpad T Series computer.
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`13· · · Q.· ·Okay.
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`14· · · A.· ·But they also used our products in desktop
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`15· computers and other things as well.
`
`16· · · Q.· ·Sure.· In what sense were they a supplier for
`
`17· you?
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`18· · · A.· ·They were a memory supplier, and somewhere around
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`19· that time they became a chip supplier as well.
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`20· · · Q.· ·Okay.· What was the general reputation of IBM in
`
`21· that time frame?
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`22· · · A.· ·The general reputation?· It was a sophisticated
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`23· company, but sometimes very bureaucratic and slow-moving.
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`24· · · Q.· ·Okay.· Would they have been involved with
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`25· cutting-edge technologies and research and development?
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`·1· · · · · ·MR. CANAVERA:· Form.
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`·2· · · · · ·THE DEPONENT:· A big company.· There would be a
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`·3· portion of the company that was involved in that, yes.
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`·4· BY MR. GOSSE:
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`·5· · · Q.· ·Okay.· How about Intel:· Have you heard of them?
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`·6· · · A.· ·Yes.
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`·7· · · Q.· ·Okay.· What was their general reputation as of
`
`·8· 1996?
`
`·9· · · A.· ·1996?
`
`10· · · Q.· ·'96 to '98, sort of the time frame around and
`
`11· before the date of invention.
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`12· · · A.· ·They were the largest manufacturer of
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`13· microprocessors for PCs at the time.
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`14· · · Q.· ·Safe to say that they were doing some
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`15· cutting-edge research and development?
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`16· · · · · ·MR. CANAVERA:· Objection, form.
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`17· · · · · ·THE DEPONENT:· Yeah.· A very big company.
`
`18· Somewhere in the company, some people were doing that.
`
`19· BY MR. GOSSE:
`
`20· · · Q.· ·Okay.· Would people working at Intel have been
`
`21· exposed to technologies beyond what was publicly known?
`
`22· · · · · ·MR. CANAVERA:· Objection, form.
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`23· · · · · ·THE DEPONENT:· Some people would; some people
`
`24· would not.
`
`25· · · · · ·MR. GOSSE:· Okay.
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`·1· · · Q.· ·How about Sun Microsystems?· Are you familiar
`
`·2· with them in that time period?
`
`·3· · · A.· ·I am.
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`·4· · · Q.· ·What was their general reputation?
`
`·5· · · A.· ·They were in transition at the time.· They were
`
`·6· moving towards being more of a system solution web
`
`·7· infrastructure supplier and away from microprocessor
`
`·8· design.· But they did still have microprocessor design
`
`·9· teams at that time.· And they did design their own
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`10· computer systems in some cases.
`
`11· · · Q.· ·Was Intel involved in designing hardware at the
`
`12· time?
`
`13· · · A.· ·Yes.· They designed chips.· They designed some
`
`14· computer systems at the time.
`
`15· · · Q.· ·Okay.· And memory chips being one example of
`
`16· those?
`
`17· · · A.· ·They were just doing flash memory at the time. I
`
`18· don't remember them doing any other memory chips at that
`
`19· time.
`
`20· · · Q.· ·So they were developing flash memory around that
`
`21· time?
`
`22· · · A.· ·They did cache memory chips as well.
`
`23· · · Q.· ·So, is it accurate to say that Intel, as of -- in
`
`24· the 1996 to 1998 period, they were developing flash clips.
`
`25· Is that what you said?
`
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`·1· · · A.· ·They were producing them.· And I guess since they
`
`·2· had new generations that came out after that, I guess they
`
`·3· would have been developing some new ones as well.
`
`·4· · · Q.· ·What about Intel?· I'm sorry.· Strike that.
`
`·5· · · · · ·What about IBM?· Was IBM involved in producing or
`
`·6· developing flash chips?
`
`·7· · · A.· ·Not that I'm aware of.
`
`·8· · · Q.· ·Did they develop any other sorts of hardware at
`
`·9· that time period?
`
`10· · · A.· ·They did.· They developed chips for various kinds
`
`11· of computers, primarily for their big main frames.
`
`12· · · Q.· ·And you mentioned Sun Microsystems had a
`
`13· microprocessor design team.· Did they develop any other
`
`14· sorts of hardware?· Memory chips, for example?
`
`15· · · A.· ·I'm not aware of them developing memory chips at
`
`16· that time.
`
`17· · · Q.· ·Okay.· What about American Megatrends?· Have you
`
`18· ever heard of them?
`
`19· · · A.· ·Yes.
`
`20· · · Q.· ·What was the nature of their business?
`
`21· · · A.· ·They provided BIOS -- maybe some other kinds of
`
`22· software -- to certain third parties.· BIOS software. I
`
`23· mean, not physical BIOS chips, but the software that would
`
`24· be used in a BIOS chip.
`
`25· · · Q.· ·Okay.· Do you have any sense for their, I guess,
`
`Page 17
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`·1· market share?· You mentioned they were supplying BIOS to a
`
`·2· variety of third parties.· What was the competitive
`
`·3· landscape for them?
`
`·4· · · · · ·MR. CANAVERA:· Objection in form, scope.
`
`·5· · · · · ·THE DEPONENT:· There were three or four leading
`
`·6· companies at the time.· Phoenix.· I don't remember the
`
`·7· third and fourth one.
`
`·8· · · Q.· ·Okay.
`
`·9· · · A.· ·It's been a lot of years.· And Intel may have had
`
`10· their own.· I don't remember.· That varied from years to
`
`11· years.
`
`12· · · · · ·But, yeah, there were a number of players in that
`
`13· field, and my recollection is that the market share was
`
`14· reasonably well distributed.
`
`15· · · Q.· ·Okay.· So of the three or four major BIOS
`
`16· manufacturers, American Megatrends and Phoenix are the two
`
`17· that you can remember?
`
`18· · · A.· ·Yes.
`
`19· · · Q.· ·Okay.
`
`20· · · A.· ·Award.· That was one of the other ones.
`
`21· · · Q.· ·Do you have a sense for whether American
`
`22· Megatrends was bigger or smaller than Phoenix, for
`
`23· example?
`
`24· · · A.· ·It changed from year to year, so I don't recall
`
`25· specifically for those particular years.
`
`Page 18
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`·1· · · Q.· ·Okay.· How about American Megatrends versus
`
`·2· Award?· Do you have a sense for whether American
`
`·3· Megatrends was bigger or smaller than Award?
`
`·4· · · · · ·MR. CANAVERA:· Objection, form, scope.
`
`·5· · · · · ·THE DEPONENT:· I don't recall in those particular
`
`·6· years.
`
`·7· BY MR. GOSSE:
`
`·8· · · Q.· ·Okay.· Safe to say, though, that all three of
`
`·9· those companies were leading BIOS manufacturers in that
`
`10· time period?
`
`11· · · · · ·MR. CANAVERA:· Objection, form, scope.
`
`12· · · · · ·THE DEPONENT:· It depends what you mean by
`
`13· "leading."
`
`14· BY MR. GOSSE:
`
`15· · · Q.· ·Were they recognized as major BIOS manufacturers
`
`16· in the industry?
`
`17· · · A.· ·I would have recognized them that way at the
`
`18· time.
`
`19· · · Q.· ·Okay.
`
`20· · · A.· ·I'm not sure a person on the street would.
`
`21· · · Q.· ·Sure.· If you could flip over to page 14 of your
`
`22· declaration.· There's three paragraphs there, starting
`
`23· with paragraph 40 at the top of the page.· Do you see
`
`24· those?
`
`25· · · A.· ·Yes.
`
`Page 19
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`·1· · · Q.· ·Okay.· And referenced in paragraph 40 is an
`
`·2· Exhibit B7, which is U.S. patent ending in 236.· And this
`
`·3· is I think one place where your declarations may differ.
`
`·4· That's referenced in the Roku declaration as Exhibit 1017.
`
`·5· · · · · ·Do you mind flipping back to exhibits in the back
`
`·6· of your declaration to that 236 patent?
`
`·7· · · A.· ·Okay.
`
`·8· · · Q.· ·What's the date of issuance on the 236 patent?
`
`·9· Do you see that?
`
`10· · · A.· ·October 24th, 2000.
`
`11· · · Q.· ·Okay.· Would you agree that this patent didn't
`
`12· become public until October 24th, 2000?
`
`13· · · A.· ·I don't know.
`
`14· · · Q.· ·Do you have any sense for when patents become
`
`15· public?
`
`16· · · · · ·MR. CANAVERA:· Objection to the form.
`
`17· · · · · ·THE DEPONENT:· I think you're entitled to release
`
`18· the text of the patent or publish it anytime after it's
`
`19· been filed.· There's nothing to prevent you from doing
`
`20· that.
`
`21· BY MR. GOSSE:
`
`22· · · Q.· ·Do you have any evidence that this patent
`
`23· published prior to October 24th, 2000?
`
`24· · · A.· ·No.· As I said, I don't know one way or the
`
`25· other.
`
`Page 20
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`·1· · · Q.· ·Okay.· Okay.
`
`·2· · · · · ·Paragraph 41 of your declaration references a 592
`
`·3· patent, which is also in the appendices of your
`
`·4· declaration.· In the Roku matter, I believe it's
`
`·5· Exhibit 1018.
`
`·6· · · · · ·Do you mind flipping over to the 592 patent?
`
`·7· · · A.· ·Yes.
`
`·8· · · Q.· ·Okay.
`
`·9· · · · · ·MR. CANAVERA:· Give me one second to catch up
`
`10· here.
`
`11· · · · · ·MR. GOSSE:· Sure thing, yep.
`
`12· · · · · ·MR. CANAVERA:· Okay.· I'm ready.
`
`13· BY MR. GOSSE:
`
`14· · · Q.· ·The 592 patent, do you see the date of issuance
`
`15· on that patent?
`
`16· · · A.· ·Yes.
`
`17· · · Q.· ·What is it?
`
`18· · · A.· ·September 1st, 1998.
`
`19· · · Q.· ·Do you have -- Are you aware any of evidence that
`
`20· this 592 patent published before September 1st, 1998?
`
`21· · · A.· ·I'm not currently aware of any evidence of that.
`
`22· · · Q.· ·Okay.· Paragraph 42 of your declaration
`
`23· references a 594 patent.· Do you mind flipping over to
`
`24· that in the appendices?
`
`25· · · A.· ·Yes.
`
`Page 21
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`·1· · · Q.· ·I'll note that's Exhibit 1019 in the Roku matter.
`
`·2· · · A.· ·Yes.
`
`·3· · · Q.· ·And what's the issue date of the 594 patent?
`
`·4· · · A.· ·November 10th, 1998.
`
`·5· · · Q.· ·Are you aware of any evidence showing that the
`
`·6· 594 patent was publicly available sometime before
`
`·7· November 10th, 1998?
`
`·8· · · A.· ·I'm not currently aware of such evidence.
`
`·9· · · Q.· ·Okay.· Let's flip over to page 21 of your
`
`10· declaration.
`
`11· · · A.· ·Okay.
`
`12· · · Q.· ·The top of that page begins a section titled
`
`13· "Claim Construction."· Do you see that?
`
`14· · · A.· ·I do.
`
`15· · · Q.· ·Great.· And paragraph 58 indicates that you have
`
`16· "interpreted the challenged claims as they would have been
`
`17· understood by a person of skill in the art."· Is that
`
`18· accurate?
`
`19· · · A.· ·Yes.· At the time of the invention.
`
`20· · · Q.· ·Perfect.· Just so we're clear, what you mean by
`
`21· that, did you give meaning to claim terms other than what
`
`22· you consider their plain and ordinary meaning?
`
`23· · · · · ·MR. CANAVERA:· Objection, form.
`
`24· · · · · ·THE DEPONENT:· No.· Although I think it's more
`
`25· accurate to say I gave them their plain and ordinary
`
`Page 22
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`·1· meaning when viewed by a person of ordinary skill in the
`
`·2· art at the time, in light of the specification and the
`
`·3· intrinsic record.
`
`·4· BY MR. GOSSE:
`
`·5· · · Q.· ·Okay.· Did you review the specification to arrive
`
`·6· at any particular claim constructions for any of the terms
`
`·7· of the 941 patent?
`
`·8· · · · · ·MR. CANAVERA:· Objection, form.
`
`·9· · · · · ·THE WITNESS:· I reviewed the specification in
`
`10· coming to my understanding of the meaning of the terms in
`
`11· the claim.
`
`12· BY MR. GOSSE:
`
`13· · · Q.· ·Okay.· Did you rely on the file history in coming
`
`14· to an understanding of the meaning of the claim?
`
`15· · · A.· ·I did, both -- at this point, both the original
`
`16· prosecution history and the re-exam history.
`
`17· · · Q.· ·Do you cite the file history anywhere in your
`
`18· declaration?
`
`19· · · A.· ·I don't recall.
`
`20· · · Q.· ·Did the file history color your interpretation
`
`21· of any the claim terms in the 941 patent?
`
`22· · · · · ·MR. CANAVERA:· Objection, form.
`
`23· · · · · ·THE DEPONENT:· I certainly took it into
`
`24· consideration, but in the end, I concluded that the plain
`
`25· meaning was the best interpretation of the claim terms for
`
`Page 23
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`·1· a person of ordinary skill in the art.
`
`·2· BY MR. GOSSE:
`
`·3· · · Q.· ·Did you base that plain meaning on any particular
`
`·4· dictionary definitions or definitions beyond sort of the
`
`·5· Webster's type ordinary definition?
`
`·6· · · · · ·MR. CANAVERA:· Objection, form.
`
`·7· · · · · ·THE DEPONENT:· I just interpreted the words using
`
`·8· their ordinary English meaning to a person of ordinary
`
`·9· skill in the art, in context.
`
`10· · · · · ·There was one exception.· And that was it was my
`
`11· understanding that -- Well, no, not "exception."· It's
`
`12· still plain meaning.· So...
`
`13· BY MR. GOSSE:
`
`14· · · Q.· ·So no terms -- no terms that you gave any meaning
`
`15· to other than the plain meaning.
`
`16· · · A.· ·Correct.
`
`17· · · Q.· ·We're going to talk a little bit about the
`
`18· Hellman patent, which is Exhibit 1004 in both matters.
`
`19· · · · · ·We'll probably be jumping back and forth between
`
`20· your report and that reference for just a little bit.
`
`21· · · A.· ·Okay.
`
`22· · · Q.· ·There's a paragraph in your report, it's on page
`
`23· 26, paragraph 68 is the paragraph.· And towards the bottom
`
`24· of the page it describes a variety of reasons why an
`
`25· Authorization A cannot be reused.· Do you see that?
`
`Page 24
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`·1· · · A.· ·Yes.· Well, it can't be used for a request that
`
`·2· uses a different random value.
`
`·3· · · Q.· ·Okay.· I want to make sure I understand what
`
`·4· you're trying to say there.
`
`·5· · · · · ·The first example is that because Authorization A
`
`·6· contains the Hash Value H, the Authorization A, if
`
`·7· intercepted on the insecure channel 11, cannot be reused
`
`·8· for any other software package which would have had a
`
`·9· different hash value.
`
`10· · · · · ·Do you see that?
`
`11· · · A.· ·Yes.
`
`12· · · Q.· ·Is it purely the presence of the hash value that
`
`13· prevents reuse?
`
`14· · · A.· ·Well, let's be really clear here.· Because there
`
`15· seems to be some confusion.
`
`16· · · · · ·You could reuse an authorization.· It just
`
`17· wouldn't work.· It wouldn't authorize anything, right?· It
`
`18· would just be useless.· It would be meaningless.
`
`19· · · · · ·So as Hellman explains it, he says you can't
`
`20· reuse it, because he means you can't reuse it in a way in
`
`21· which it has any effect.
`
`22· · · · · ·There's nothing, of course, to prevent somebody
`
`23· from using a number for whatever they want.
`
`24· · · · · ·Hellman then explains that it is impractical to
`
`25· reuse a value, an authorization value, because the
`
`Page 25
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`

`·1· probability of it matching something other than what it
`
`·2· was intended to authorize, if you follow his
`
`·3· recommendations and include enough bits and things, is
`
`·4· infinitesimally improbable.· And that's what he's trying
`
`·5· to explain.
`
`·6· · · · · ·Now, there are a number of things in that value,
`
`·7· but one of them is the hash value.· And the hash value is
`
`·8· an identifier of the program that's being authorized.· So
`
`·9· if the hash value changes, then it no longer is an
`
`10· effective authorization for that same program.
`
`11· · · · · ·So what he's explaining here is that this is only
`
`12· an authorization for one specific program running on one
`
`13· specific machine in this one specific instance, unless you
`
`14· don't follow his recommendations and you do a terrible
`
`15· design, or an event happens that is unlikely to happen in
`
`16· the entire history of the world.
`
`17· · · Q.· ·Perfect.· And the same would be true, then, in
`
`18· the context of the number of uses.· You say that "If
`
`19· Authorization A is intercepted, it cannot be reused for a
`
`20· different number of authorized uses."
`
`21· · · A.· ·Correct.
`
`22· · · Q.· ·So what you're saying there is if the Number N
`
`23· changed, the Authorization A would also change.· Is that
`
`24· accurate?
`
`25· · · A.· ·Correct.· And, again, that is to not let somebody
`
`Page 26
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`

`·1· request one use of the software and then somehow trick it
`
`·2· into giving them a hundred.
`
`·3· · · Q.· ·Sure.· So if I requested 10 uses, and then later
`
`·4· substituted and said I want a hundred uses, the
`
`·5· Authorization A would change in those two different
`
`·6· circumstances, just based on the number of uses that I've
`
`·7· requested.
`
`·8· · · A.· ·Correct.· And then it would no longer match.
`
`·9· · · Q.· ·Okay.· Is the same true for the Random Number R?
`
`10· If you change the Random Number R, you say that the
`
`11· Authorization A cannot be reused for another request.· It
`
`12· uses a different random value.
`
`13· · · A.· ·Correct.· Again, this is with extraordinarily
`
`14· high probability, just because that's the way these things
`
`15· work.
`
`16· · · Q.· ·Sure.· So one time out of umpteen billions of
`
`17· chances, there's a possibility that the Authorization A
`
`18· would be the same, even though there's two different
`
`19· random numbers supplied.
`
`20· · · A.· ·Right.· And there's guidance given to make sure
`
`21· that that would happen so infrequently that it's likely
`
`22· the entire population of the world would never see it.
`
`23· · · Q.· ·Sure.· Okay.
`
`24· · · · · ·Did you understand that the Authorization A is
`
`25· generated through the use of a hash function?
`
`Page 27
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`·1· · · A.· ·Yes, in at least the main preferred embodiment,
`
`·2· yes.
`
`·3· · · Q.· ·All right.· We'll change gears just a little bit.
`
`·4· Page 28, paragraph 73.· It discusses Hash Value H.
`
`·5· · · A.· ·Yes.
`
`·6· · · Q.· ·When we think about the Hash Value H, is it
`
`·7· accurate to say that that would be effectively a random
`
`·8· number, perhaps within some range?
`
`·9· · · · · ·MR. CANAVERA:· Objection, form.
`
`10· · · · · ·THE DEPONENT:· It's not random, but it's intended
`
`11· to have the same statistical properties as a random
`
`12· number.
`
`13· · · · · ·In other words, if you put the same inputs in the
`
`14· same hash function, you get the same output every time.
`
`15· So it's not random.
`
`16· · · · · ·But it's designed in such a way that -- and
`
`17· theoretically there's a reverse function.· It's just too
`
`18· complicated to compute.· But it's designed to have similar
`
`19· properties to a

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