Petitioner’s Demonstratives
`
`Apple Inc. v. MemoryWeb, LLC
`IPR2022-00031 (US 10,621,228)
`
`Contains Protective Order Materials
`
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`
`1
`
`

`

`37 C.F.R. § 42.5(c)(3)
`
`(3) Late action. A late action will be excused on a showing of
`good cause or upon a Board decision that consideration on the
`merits would be in the interests of justice.
`
`Paper 46 at 19-20.
`
`“Patent Owner did not raise the RPI issue in its post-institution
`Response. We agree with Petitioner that Patent Owner has thus
`forfeited any RPI arguments.”
`
`Unified Patents v. JustService.net LLC, IPR2020-01258, 2022 WL 494800, at *1
`(PTAB Feb. 16, 2022)
`Also Unified Patents Inc. v. Mobility Workx, LLC, IPR2018-01150, 2019 WL 6481774,
`at *1 (PTAB Dec. 2, 2019); Funai Elec. Co. v. Gold Charm Ltd., No. IPR2015-01468,
`2016 WL 7995297, at *22 (PTAB Dec. 27, 2016); Unified Patents Inc. v. Nonend
`Inventions N.V., IPR2016-00174, Paper 26 at 6-7 (PTAB May 8, 2017)
`
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`
`2
`
`Paper 46 at 15-16.
`
`

`

`MemoryWeb’s RPI & Estoppel Arguments in
`Samsung (September 6, 2022)
`
`“Should the Board determine in a final written decision that
`Samsung is an unnamed RPI in the Unified IPR, Samsung
`should be estopped from maintaining the present IPR
`challenge under Section 315(e)(1)[.]”
`
`Samsung, IPR2022-00222, Paper 19 (PO Response) at 64.
`Paper 46 at 6.
`
`“The record overwhelmingly indicates that the estoppel should
`apply if the Board rules that Samsung was an unnamed RPI.
`For example, like Petitioner here, Unified relied on Okamura as its
`primary reference. While Unified did not rely on Belitz, Belitz is
`certainly “published” prior art that Unified could have identified
`“through prior art searching,” just as Samsung had.”
`
`Samsung, IPR2022-00222, Paper 19 (PO Response) at 65.
`Paper 46 at 6.
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`3
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`

`

`In re Micron Tech., Inc.
`
`“We also note a scenario that presents at least an obvious
`starting point for a claim of forfeiture, whether based on
`timeliness or consent or distinct grounds: a defendant's tactical
`wait-and-see bypassing of an opportunity to declare a desire
`for a different forum, where the course of proceedings might
`well have been altered by such a declaration.
`
`In re Micron Tech., Inc., 875 F.3d 1091, 1102 (Fed. Cir. 2017)
`(emphasis added).
`Paper 46 at 20.
`
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`4
`
`

`

`
`Aperture 3 User Manual: Welcome to Aperture
`9/28/21 11:58 AM
`Aperture 3 User Manual: Welcome to Aperture
`
` —
`,
`
`Iproj/aperure_help/en/aper:
`//Applications/Apemture.aop/Contents/Rescurces/English.
`(Or Google
`
`
`
`
`
`
`Welcome to Aperture
`User Manual
`@ Aperture 3
`Aperture is a powerful and easy-to-use digital image management system that can track thousands of
`digital images and provides the avid photographer with high-quality image management and adjustment
`Welcome to Aperture
`Welcome to Aperture
`tools
`
`
`An Overview of Aperture
`Aperture is a powerful and easy-to-use digita image management system that can track thousandsof digital
`images and provides the avid pholographer with high-quality image
`management and adjustment tools.
`
`
`With Aperture, you can efficiently import digital images, perform a photo edit, adjust and retouch
`The ApertureInterface
`we
`ier
`oe
`receipt
`:
`
`With Aperture, you can efficiently impon digital images, perform a photo ecit, adjust ard retouch images, publish
`images, publish images for the web orprint, export libraries for use on other Aperture systems, merge
`SS SeRe eee
`images for the web or print, export libraries for use on other Aperture systems, merge libraries, and back up your
`
`
`libraries, and back up yourentire imagelibrary for safekeeping. Aperture lets you work with high-quality
`entire image library for safekeeping. Aperture lets you work with high-quality JPEG, TIFF, and RAW imagefiles—
`Importing images
`
`
`JPEG, TIFF, and RAW image files—and even HD video files—directly from your camera or card reader and
`workflow.
`as
`rae
`and even HD video files—directly from your camera of Card reader and maintainthat high quality throughout your
`
`
`Dinplaving images Is the Viewer
`maintain that high quality throughout your workflow.
`
`
`Viewing images in Full Screen View
`
`Copyright©2009 Apple Inc. All rights reserved
`
`Stacking Images and Makieg Picks
`
`
`Rating mages
`
`
`Applying Keywords to Images
`
`Working withMetadata
`
`
`Organizing images with Faces
`
`
`Locating and Organizing Inages with
`Places
`Searching for and Osplayieg images:
`
`Grouping images with Smart Albums
`An Overview of Image Adjustments
`
`Making Image Adjustments
`
`Making Brushed Adjastmerts
`
`Printing Your images
`
`Exporting Your Images
`
`Creating Slideshow Presentations
`Using the Light Tabie
`
`Creating Boots
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EX1005 — A3UM; EX1003 — Dr. Terveen
`
`
`
`
`
`EX1003, 975-76, 94; Petition, 15-16; Reply, 1-2,8,
`13-14; Pet. Opp. Mot. to Exclude, 2
`
`
`file:///Applications/Aperture.app/Contents/Resources/English.|proj/aperture_help/en/aperture/usermanual/index.html
`
`Page 1 of 1
`
`Petitioner Apple Inc. - Ex. 1005, p. 1
`
`file:///Applications/Aperture.app/Contents /Resources /English.|proj/aperture_help/en/aperture/usermanusl/index.htm!
`
`Page 1 of 1
`
`
`
`
`Petitioner Apple Inc. - Ex. 1005,p. 1
`
`EX1005, 1; Petition, 25; Reply, 14-15;
`Pet. Opp. Mot. to Exclude, 8-10
`
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`
`

`

`EX2010 — Feb. 17, 2010 Apple.com Archive
`CARI © Abeut tes capture User Manual
`
`Wagazebischne 97 captures
`
`saton
`
`ieee ese melsulema eraeeetelaehoeeu meleMeeeelecirr
`.
`hite
`docuner
`
`apple
`
`conveniaperturelssermencs
`
`So
`
`7
`wu OOO
`Lf
`>
`o
`
`Welcome to Aperture
`Anz Overview of Aperture
`The Aperture Latertace
`Working with the Aperture
`Library
`Importing Images
`Workingwith knagesin the
`Browser
`Diplayiag Imagesin the Viewer
`Viewing image: in Full Screen
`View
`Sucking Images and Making
`Picks
`Rating Laages
`Applying Keywordsto Images
`Working with Metadata
`Organizing Images with Paces
`Locating and Organizing Images
`wh Places
`Searching for aad Displaying
`Images
`Grouping Images with Smart
`Albums
`An Overview of Image
`Agustments
`Making image Adjustments
`Making Brushed Adjustments
`Printing Your Images
`Exporting Your Images
`Creating Slideshow Presentations
`Using the Light Table
`CreatingBooks
`CreatingWebpages
`Sharing Your Images Online
`Backing Up Your Images
`‘(Customizing the Aperture
`Workspace
`Appendix A: Calibrating Your
`Aperture Systen
`Appendix B: Setting Up an
`Aperture Syste:
`Glossary
`
`EX2010,1; Pet. Opp. Mot. to Exclude, 5.
`
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`
`MemoryWebEx. 2010
`Apple v. MemoryWeb — IPR2022-00031
`1 of 2
`
`

`

`MemoryWeb’s Original Position on EX1005
`
`“Petitioner has failed to establish that such a POSITA would.
`Instead, the evidence shows that: (1) a POSITA exercising
`reasonable diligence would not have known to search for Aperture
`3 or A3UM, and (2) a POSITA exercising reasonable diligence
`would not have found the website version of A3UM on
`Apple.com.”
`
`PO Response at 17-18.
`
`“Even if Petitioner sufficiently demonstrated the user manual
`page met the threshold for public accessibility discussed above,
`Petitioner has not established that the PDF version of A3UM
`submitted to the Board (Ex. 1005) accurately represents what a
`visitor to the Aperture 3 user manual page would have seen
`before June 2010.”
`
`DEMONSTRATIVE EXHIBIT - NOT EVIDENCE - IPR2022-00031
`
`PO Response at 23.
`
`Opp. at 6.
`
`7
`
`

`

`Institution Decision re: A3UM
`
`Here, Petitioner submits evidence that A3UM, Apple’s Aperture 3 User Manual (Ex. 1005)
`was publicly available and publicly disseminated as early as February 2010. 4 Petitioner
`provides the declaration of Mr. Matthew Birdsell (Ex. 1020), a Content Manager at Apple,
`who testifies that he worked for Apple since 2002 and has been a full-time Apple employee
`since June 2010. Ex. 1020 ¶¶ 1–2. Mr. Birdsell testifies that he “personally worked on
`Apple documentation and publications regarding each version of Aperture throughout its
`lifespan, including Aperture 3.” Id. ¶ 2.
`
`In our view, Petitioner provides credible testimonial evidence in the form of Mr. Birdsell’s
`declaration that Apple made the Aperture 3 User Manual (A3UM) available to the public
`through the Apple website as early as February 2010 in connection with the release of
`Apple’s Aperture 3 product. Mr. Birdsell testifies that he worked for Apple since 2002 and
`has been a full-time employee at Apple since June 2010. Ex. 1020 ¶ 1. Mr. Birdsell
`testifies that he has “personally worked on Apple documentation and publications
`regarding each version of Aperture throughout its lifespan, including Aperture 3,” and that
`he is “personally familiar with the Aperture 3 User Manual that was distributed with the
`Aperture 3 product,” confirming that Exhibit 1005 “is an accurate copy of the Aperture 3
`User Manual that was distributed with the initial version of the Aperture 3 product (i.e.,
`version 3.0).” Id. ¶¶ 2, 4.
`
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`
`8
`
`ID (Paper 12) at 30, 35; Opp. at 6.
`
`

`

`35 U.S.C. § 315(d) & (e)
`
`(d) Multiple Proceedings.—Notwithstanding sections 135(a), 251, and 252,
`and chapter 30, during the pendency of an inter partes review, if another
`proceeding or matter involving the patent is before the Office, the Director may
`determine the manner in which the inter partes review or other proceeding or
`matter may proceed, including providing for stay, transfer, consolidation, or
`termination of any such matter or proceeding.
`
`(e) Estoppel.—
`(1) Proceedings before the office.—The petitioner in an inter partes
`review of a claim in a patent under this chapter that results in a final written
`decision under section 318(a), or the real party in interest or privy of the
`petitioner, may not request or maintain a proceeding before the Office with
`respect to that claim on any ground that the petitioner raised or
`reasonably could have raised during that inter partes review.
`
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`
`9
`
`Opp. at 31-32.
`
`

`

`Ironburg Inventions Ltd. v. Valve Corp.
`
`“Accordingly, we hold that, provided the other conditions of the statute
`are satisfied, § 315(e)(2) estops a petitioner as to invalidity grounds a
`skilled searcher conducting a diligent search reasonably could
`have been expected to discover, as these are grounds that the
`petitioner ‘reasonably could have raised’ in its petition.”
`
`“If [the skilled searcher] employed ‘scorched earth’ tactics to find
`the references making up the Non-Petitioned Grounds, then its
`experience may be irrelevant to a determination of what would have
`been discovered by an ordinarily skilled searcher acting with
`merely reasonable diligence.”
`
`Ironburg Inventions Ltd. v. Valve Corp., 64 F.4th 1274, 1298-99 (Fed. Cir. 2023) (emphasis added); Opp. at 4-5.
`
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`
`10
`
`

`

`MemoryWeb’s Position Now
`
`“A skilled searcher would have located Aperture
`3 and A3UM. Mot., 27-31. The path to locating
`
`
`
`
`A3UM is straightforward[.]”
`
`Motion to Terminate Reply at 11.
`
`DEMONSTRATIVE EXHIBIT - NOT
`EVIDENCE - IPR2022-00031
`
`11
`
`

`

`EX2038 – Director Decision Vacating Unified RPI Order
`
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`
`12
`
`EX2038, at 5; Opp. at 15 n.4.
`
`

`

`MemoryWeb’s Definition of a POSITA (as of June 9, 2011)
`
`Patent Owner Response, 15; Petition, 9 (“earliest filing date claimed by the ’228 patent is June 9, 2011”).
`
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`
`13
`
`

`

`Palomar Technologies v. MRSI Systems
`
`“Finally, every reasonable search
`must have a stopping point.
`Kunin's opinion assumes that a
`reasonably diligent searcher would
`have not stopped once Isaacs was
`located, and would have continued
`beyond that point. But without
`hindsight analysis, a searcher
`would have no reason to know
`that additional helpful references
`existed and remained
`undiscovered. Nor, for that matter,
`would a diligent search necessarily
`continue if significant prior art had
`already been located.”
`
`“It stands to reason, therefore, that
`in hindsight there will almost
`always be a seemingly simple
`search pathway that could have
`led a searcher from the patent to
`the reference.”
`
`Palomar Techs., Inc. v. MRSI Sys., LLC, No. 18-10236-FDS, 2020 WL 2115625, *12, 14 (D. Mass. May 4, 2020) (emphasis added);
`Opp. at 5.
`
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`
`14
`
`

`

`MemoryWeb’s Expert (Lhymn) Opining re: Perspective of a
`Skilled Searcher (as of Sept. 3, 2021)
`
`BACKGROUND AND QUALIFICATIONS
`
`11.
`
`Between 2005 and 2012, I was employedas a senior patent analyst at
`
`Cardinal Intellectual Property Inc. My job responsibilities included performing
`
`3:
`
`In formulating my opinions. I have relied on my knowledge.training.
`
`patent searches, including priorart searches.
`
`and experience, which I will summarize below. A copy ofmy curriculumvitae (CV)
`
`12.
`
`Ihave extensive experience performing patent searches. Throughout
`
`is appended to this declaration.
`
`my career,
`
`I have personally performed approximately 3.000 searches.
`
`I have
`
`6.
`
`Iam the CEO and Founder of Sherman Patent Search Group (“SPSG”).
`
`managed or supervised approximately 7.000 additional patent searches. I have
`
`patent search firm based in Pasadena. California. SPSGis a patent search firm that
`
`personally performed more than 500 patent searchesin the software field. The prior
`
`has technical experience that spans across all
`
`technology areas. Currently,
`
`I
`
`art searchesinclude invalidity, clearance, and patentability searches
`
`supervise four SPSG employees who run patentresearch projects.
`
`13. Basedon my educationandexperience.I am qualified torender
`
`7.
`
`I am also currently CEO and Founder of Visualize (VIP), a computer
`
`opinionsonpriorartinvaliditysearchesandpriorartinthesoftwarefield,including
`
`vision AI patent search startup headquartered in Pasadena, CA. VIP developed an
`
`thepriorartatissuehere.
`
`A;
`
`I received a Bachelor's Degree in Mechanical Engineering from Penn
`
`State University in 2004.
`
`So what standard do you useto
`Q.
`1
`2 judge whethera searchis reasonably
`3 diligent?
`4
`
`9
`
`Between 2000 and 2004 is worked an engineer at Bayer Corporation,
`
`Applied Research Lab (PSU)and Air Products and Chemicals.
`
`10.
`
`Between 2004 and 2005, I was employed as a patent examiner in Art
`
`Unit 3727 at the United States Patent and Trademark Office. During mytime as an
`
`examiner, I searched for prior art and issued office actions
`
`EX2111, Ff] 5-13, 23 (“relevant timeframe”); EX1115 at 24:1-16; Opp. at 12; MW Mot. at 28 (citing EX2111 as testimony of a skilled
`searcher); MW Reply at 12 (same).
`
`DEMONSTRATIVE EXHIBIT - NOT EVIDENCE - IPR2022-00031
`
`15
`
`

`

`Mr. Lhymn Did Not Use PatWorld in 2021
`
`23. Specifically, I have been asked to provide an opinion as to
`whether the A3UM andBelitz references detailed below would
`
`have beenlocated byanordinarilyskilledsearcher’s
`
`“Timeframe” or relevant timeframe) by someonesearching for
`priorart in the technical field of the ’228 patent.
`
`includingPatworld, Google, Wayback Machine, and eBay,
`
`7
`
`did it?
`38. I conducted an investigation in September 2023 to
`.
`It
`determine whether A3UM and Belitz would have been
`wasreadily available at that time.
`It's
`identified by an ordinarily skilled searcher through
`
`reasonablediligence in the Timeframeusing availableprior
`very commonfor patent searchersto try out
`artsearchingresources. As part ofthis investigation, I ran
`different tools over time.
`search strings that a skilled searcher would have generated
`to identify relevant prior art references for claims 1-19 of
`A.|hadheardofitat that time.
`the ‘228 patent through prior art searching tools available
`Wehadnot subscribedto it or secured a
`and widely usedbyprior art searchers in the Timeframe
`license to it at that time.
`(e.g., Patworld, Google, Wayback Machine, and eBay).
`Basedonmyexperience, all of
`
`EX1115 at 62:10-63:5; Opp. at 9-10; EX2111 Jf 23, 38.
`
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`
`16
`
`

`

`Mr. Lhymn’s Assignment Was Based on Hindsight
`
`13 Q. Is it your understanding that
`14 the opinion you're giving here is about
`15 what would be a reasonably diligent search
`16 in the context of an invalidity search?
`17 A. My search strings only relate
`18 to whether a skilled searcher would have
`19 located the references.
`20 Q. And the references are meant to
`21 do what? What's their relationship to the
`22 '228 patent?
`23 A. The references were provided to
`24 me in that those were references that as a
`25 skilled searcher, can they be found by a
`1 skilled searcher of ordinary skill in a
`2 reasonably diligent search within the time
`3 frame. That was my assignment.
`
`16. I further understand that one way of
`showing an ordinarily skilled searcher’s
`reasonably diligent search is to identify the
`relevant search string and search source that
`could identify the allegedly unavailable
`prior art and explain why such a criterion
`would be part of a skilled searcher’s diligent
`search.
`
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`
`17
`
`EX1115 at 32:13-33:3; EX2111, ¶16; Opp. at 9-10.
`
`

`

`EX1005 (A3UM) vs. EX2107 (Lhymn “Search Result”)
`EX1005
`EX2107
`
`Aperture 1 User Manual Welcome to Aperture
`
`Welcome to Aperture
`image management systemthat can track thousands of
`Aperture is a powerful and easy-to-use digital
`digital
`images and provides the avid photographer with high-quality image management and adjustment
`tools
`
`With Aperture, you can efficiently import digital images, perform a photo edit, adjust and retouch
`images, publish images for the web or print, export libraries for use on other Aperture systems, merge
`libraries, and back up your entire imagelibrary fo
`fekeeping. Aperture lets you work with high-quality
`JPEG, TIFF, and RAW image files—and even HDvideo files—directly from your camera or card reader and
`maintain that high quality throughout your workflow
`
`1
`
`Copyright © 2012 Apple Inc. All rights reserved.
`
`Aperture 3
`
`Ble // Applications /Apen em app/Contents Resources English tprol/apenure help/es/aperture / «sermaneal/index Mil
`
`Page Lot
`
`Petitioner Apple Inc.
`
`- Ex. 1005. p.
`
`MemoryWeb Ex. 2107
`Apple v. MemoryWeb- IPR 2022-00031
`
`DEMONSTRATIVE EXHIBIT - NOT EVIDENCE - IPR2022-00031
`
`18
`
`

`

`Mr. Lhymn’s Patworld Search Did Not Identify A3UM
`
`3 Q. Okay, so you agree that the
`4 search results in Exhibit 2100 do not
`5 include the document that is Exhibit 1005,
`6 right?
`7 A. The search results in Exhibit
`8 2100 show the Salvador reference, the '543
`9 reference, which cites, based on my
`10 declaration -- let me just pull that up so
`11 I get the exact title correct. The Apple
`12 Computer, the technical manual for Aperture
`13 Getting Started from 2006.
`14 Q. Which is not A3UM, right?
`15 A. Those two documents are
`16 different, correct.
`17 Q.· · And so the list of 141 search
`18 results does not include the document that
`19 is Exhibit 105, A3UM.· You agree, right?
`20 A.· · That's correct.
`
`EX1115 at 121:3-20; Opp. at 7, 12.
`
`DEMONSTRATIVE EXHIBIT - NOT EVIDENCE - IPR2022-00031
`
`19
`
`

`

`Mr. Lhymn Did Not Find A3UM (Copyright 2009)
`
`3 Q. All right, Mr. Lhymn, in your
`4 Exhibit 2105 we talked about the "view as
`5 PDF" link, correct?
`6 A. Yes.
`7 Q. What's the number of the
`8 exhibit that results if you click on that
`9 link in 2105?
`10 A. I believe that's 2107.
`11 Q. Looking at 2107, Mr. Lhymn,
`12 will you open that up, please.
`13 A. Would you mind dropping that in
`14 the chat?
`15 Q. Sure. Let me know when you can
`16 see it, Mr. Lhymn.
`17 A. I have it.
`18 · Q.· · Looking at the second page of
`19· ·Exhibit 2107, Mr. Lhymn, what's the
`20· ·copyright date on that document?
`21 A. At the bottom of page 2?
`22 Q. We're looking at Exhibit 2107,
`23 at the top of page 2. Let's make sure
`24 we're looking at the same document.
`25 A. I have the wrong exhibit up,
`1 I'm sorry.
`2 Okay, 2107. 2012.
`
`EX1115 at 137:3-138:2; Opp. at 7.
`
`22 Q. Mr. Lhymn, do any of the
`23 exhibits to your declaration contain a copy
`24 of A3UM with a 2009 copyright date?
`25 A. I need to double-check that.
`1 Can you repeat the question one
`2 more time?
`3 MR. BAUGHMAN: Sue, can you
`4 read that back, please.
`5 (Whereupon, the referred to
`6 question was read back by the
`7 reporter.)
`8 A.· · No, I don't believe so.
`
`EX1115 at 135:22-136:8; Opp. at 7, 9.
`
`DEMONSTRATIVE EXHIBIT - NOT EVIDENCE - IPR2022-00031
`
`20
`
`

`

`Lhymn Deposition: Found a Different Document Than EX1005
`
`2 Q. Now, Mr. Lhymn, can I ask you
`3 to look at your Exhibit 2107 again, page 2.
`4 A. Yes.
`5 Q. Does it have a copyright date
`6 of 2012?
`7 A. Yes.
`8 Q. I'd like you to look at Exhibit
`9 1005, A3UM.
`10 A. Yes.
`11 Q. Does it have a copyright date
`12 of 2009?
`13 A. That's correct.
`
`25 Mr. Lhymn, is Exhibit 2107 the
`1 same document as A3UM, which is Exhibit
`2 1005?
`3 A. I can confirm the dates are
`4 different between the two documents.
`5 Q. So they contain different
`6 information, right? They contain different
`7 dates.
`8 A. I can confirm the dates are
`9 different.
`
`16 Q. Mr. Lhymn, you testified that
`17 Exhibit 2104 indicates to a skilled
`18 searcher that the Apple Aperture manual was
`19 archived as early as February 13, 2010, but
`20 you would agree that Exhibit 2107 is not a
`21 copy of a manual archived on February 13,
`22 2010, correct?
`23 A. That is correct.
`
`9 Q. Mr. Lhymn, 2107 and A3UM,
`10 Exhibit -- sorry. Exhibit 2107 and A3UM,
`11 Exhibit 1005, have different copyright
`12 dates, correct?
`13 A. Yes, they do.
`14 Q. In that sense they're different
`15 versions.
`16 MR. CHRISTOPHER: Objection.
`17 A. I can confirm the dates are
`18 different.
`19 Q. And so you got to Exhibit
`20 2104 -- excuse me, 2107 from Exhibit 2104,
`21 right? That's the path you take in
`22 paragraphs 45, 46, 47 and 48, correct?
`23 A. Yes.· Ultimately from 2104 we
`24 end up at 2107.
`25 Q. And the copyright date on 2107
`1 is 2012, right?
`2 A. That is correct.
`
`EX1115 at 141:2-13, 141:25-142:9, 158:16-23, 157:9-158:2; Opp. at 7, 9.
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`Lhymn Deposition: EX2107 Is After Critical Date
`
`18 Q.· · Mr. Lhymn, did you apply a date
`19 restriction in your declaration?
`20 A. It's common for a skilled
`21 searcher to apply date restrictions based
`22 on critical date given to us by the client.
`23 Q. And did you do so?
`24 A. I need to -- I'm going to
`25 reference my exhibit again.
`1 I did do so, yes.
`2 Q. Now, Mr. Lhymn, can I ask you
`3 to look at your Exhibit 2107 again, page 2.
`4 A. Yes.
`5 Q. Does it have a copyright date
`6 of 2012?
`7 A. Yes.
`8 Q. I'd like you to look at Exhibit
`9 1005, A3UM.
`10 A. Yes.
`11 Q. Does it have a copyright date
`12 of 2009?
`13 A. That's correct.
`
`5 Q. So they contain different
`6 information, right? They contain different
`7 dates.
`8 A. I can confirm the dates are
`9 different.
`
`20 Q. If you could take a look at
`21 your paragraph 48, please, we've been
`22 talking about Exhibit 2107 that has a 2012
`23 copyright date, right?
`24 A. Yes.
`25 Q. That 2012 document with a
`1 copyright -- sorry, the document with a
`2 ·2012 copyright date was archived, according
`3 ·to the link you clicked, in 2017, right?
`4 A.· · That is correct, with an
`5 ·earliest date of October 11, 2011.
`6 Q. October 11, 2011 is after the
`7 date you have argued is the earliest
`8 priority date for the '228 patent, right?
`9 MR. CHRISTOPHER: Objection to
`10 form.
`11 A. It is correct that this date is
`12 after the critical date.
`13 Q. The earliest date, October 11,
`14 2011 that you just testified about, is
`15 after June 9, 2011 that you reference in
`16 paragraph 37 of your declaration.
`17 A. That is correct.
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`EX1115 at 140:18-141:13, 142:5-9, 142:20-143:17; Opp. at 9.
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`

`MemoryWeb’s Reply
`
`MW Reply at 12.
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`MemoryWeb’s Reply
`
`Apple’s suggestion that a skilled searcher would not have located A3UMon
`
`the DVD (Opp., 11 n.2) is also inconsistent with its argument that “knowledge of
`
`the existence ofA3UMcannot be disputed” because “/a/nyone .. . could access and
`
`inspect A3UM using the Aperture help window”(Reply, 2-3). Apple also argued a
`
`POSITA could locate the HTMLfiles on the DVD. Petition. 1, 14-17; Reply, 2-3. 7-
`
`
`
`14. In fact, Apple argued that “[t]he artisan would expect an application’s help files
`
`in HTML format would be in the Resources subfolder .
`
`.
`
`. and could be opened with
`
`a web browser”andthat “installing Aperture 3 from the v3.0 Aperture installer DVD
`
`is trivial.” Reply, 12-13.
`
`MW Reply at 14-15.
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`Lhymn Deposition: Hindsight Search Methodology
`
`5 Q. And I believe your testimony in
`6 your declaration is that Exhibit 2100 is
`7 the results of a search that you ran,
`8 correct?
`9 A. That is correct.
`10 Q. And I think there are 141
`11 results, but you can check me.
`12 A. That is correct.
`13 Q. And you give testimony in your
`14 declaration about the 100th result on this
`15 list, right?
`16 A. That is correct.
`17 Q. That's the Salvador patent that
`18 you talk about?
`19 A. Correct, Exhibit 2101.
`20 Q. Mr. Lhymn, when you were
`21 looking at the results -- you did look at
`22 these results in Exhibit 2100, right?
`23 A. Yes.
`24 Q. When you were looking at the
`25 results between the first result and the
`1 100th result, what was your assessment
`2 about whether the results were converging
`3 or diverging?
`4 A. I did not take notes on that.
`5 I do not know.
`
`15 Q. And you agree that PatWorld
`16 does relevance ranking, right? That's how
`17 it sorts results, unless you choose to do
`18 it by title.
`19 A. They do have a relevance
`20 ranking.
`21 Q. Okay, so you'd expect the lower
`22 numbers, like 1, to be more relevant than
`23 the higher numbers, like 141, right? Based
`24 on your search.
`25 A.· · I believe that's what PatWorld
`1 aims for.
`
`13 Q.· · So you just kept looking until
`14 you can find anywhere in the search results
`15 something that you could argue pointed to
`16 the A3UM document?
`17 MR. CHRISTOPHER: Objection to
`18 form.
`19 A. My task was to determine if a
`20 skilled searcher -- if an ordinarily
`21 skilled searcher performing a reasonably
`22 diligent search in the time frame would
`23· ·have located the Belitz reference in the
`24· ·Aperture 3 manual. My task was not to show
`25 every other reference that could be
` 1 relevant.· That was not my task.
`
`EX1115 at 51:5-52:5, 58:15-59:1, 56:13-57:1; Opp. at 10.
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`EX2100 — Mr. Lhymn’s PatWorld Search
`
`EX2100 at 1-193.
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`Mr. Lhymn’s PatWorld Search
`
`10 Q. And by the time an ordinarily
`11 skilled searcher reached this result in the
`12 relevance ranked list that PatWorld
`13 provides in Exhibit 2100, they would have
`14 looked at 99 other patents and the
`15 references that they cite, right?
`16 A. Correct.
`
`18 Q. By the way, just to be clear,
`19 you don't talk at all about results 1
`20 through 99 in your declaration, do you?
`21 A. No, I do not detail those
`22 references.
`23 Q. You don't just not detail them,
`24 you don't say a word about them, do you?
`25 A. No, I do not. My -- again, my
`1 task was to determine if an ordinarily
`2 skilled searcher performing a reasonably
`3 diligent search in the time frame would
`4 have located Belitz in the Aperture 3
`5 manual. My assignment was not to discuss
`6 or analyze every single reference that
`7 appears in any of the search results.
`8 Q. But your testimony is that a
`·9· ·reasonably skilled searcher would have
`10· ·reviewed these as part of a reasonably
`11· ·diligent search.
`12 A.· · Yes.· At least reviewing the
`13 information presented in Exhibit 2100,
`14 correct.
`15 · Q.· · So that would include the first
`16 hit, which is Exhibit 1106, right?
`17 A. Exhibit 1106 --
`18 Q. Sorry, that's the patent that
`19 ends in '354.
`20 A. Yes, this was the first hit in
`21 Exhibit 2100.
`22 Q. So as part of a reasonably
`23 diligent search, an ordinarily skilled
`24 searcher would review that.
`25 · A.· · Yes.
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`EX1115 at 89:10-16, 82:18-83:25; EX2100 at 132; Opp. at 10.
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`27
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`

`

`Mr. Lhymn re: When to End a Reasonably Diligent Search
`
`1 Q.· · So what standard do you use to
`2 judge whether a search is reasonably
`3 diligent?
`4 · A. So as a skilled searcher, we
`5 often -- patent searching is a very complex
`6 art form.· So it does require dynamics, it
`7 requires responding to references that
`8 you're seeing, adjusting and iterating; for
`9 a skilled searcher to know when a diligent
`10 ·search should, for instance, stop, where
`11 reference is located, are the references
`12 converging, are we seeing the same
`13 references over and over again, are
`14 references becoming divergent, becoming
`15 more and more irrelevant, away from the
`16 core of what we're searching for.
`17 Those are some of the
`18 qualitative standards that a skilled
`19 searcher uses to determine what is a
`20 diligent search.
`21 Q. Mr. Lhymn, do you speak in your
`22 declaration about -- in your opinions about
`23 a search for the '228 patent whether
`24 references were converging or diverging in
`25 the searches you did?
`1 A.· · No.
`
`8 Q.· · Do the results of the search
`9 dictate when it's finished, in your mind?
`10 A.· · That can be one factor, of
`11 course.
`12 Q. What are the other factors in
`13 deciding that a search is concluded?
`14 · A. Well, as I stated previously, a
`15 skilled searcher will actively and
`16 dynamically adjust the search, respond to
`17 the references being presented to the
`18 searcher during the search, whether the
`19 references are converging, repeating
`20 themselves, seeing the same references over
`21 and over again. Whether the references are
`22 diverging based on certain search strings.
`
`20 Q.· · Mr. Lhymn, when you were
`21 looking at the results -- you did look at
`22 these results in Exhibit 2100, right?
`23 A. Yes.
`24 Q. When you were looking at the
`25 results between the first result and the
`1 100th result, what was your assessment
`2 about whether the results were converging
`3 or diverging?
`4 A.· · I did not take notes on that.
`5 I do not know.
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`EX1115 at 24:1-25:1, 50:8-22, 51:20-52:5; Opp. at 12.
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`

`

`Mr. Lhymn: Scope of a Reasonable Search
`
`15 Q.· · Would you agree that an
`16 ordinary skilled searcher would typically
`17 expect to review a thousand or more
`18 references generated by reasonable search
`19 strings?
`20 A.· · Yes.
`21 Q. Would you agree that they would
`22 do that in an effort to review the most
`23 relevant -- to find the most relevant prior
`24 art references?
`25 A. Yes.
`
`EX1115 at 68:15-25; Opp. at 10.
`17 Q. And you did that for each of
`18 the results, 1 through 99 in this case?
`19 A. Yes. Yes. The number of
`20 search hits in this particular search
`21 string is 141.· That's very low.· That’s a
`22 very low number for a skilled searcher to
`23 review.· I have reviewed search strings
`24 upwards of 1,000 hits or more.
`
`EX1115, 53:17-24; Opp. at 10.
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`

`(Whereupon, Google Patents
`Screenshot was marked as Exhibit 1107
`iT
`for identification as of this date by
`8
`the Reporter.)
`9
`Q.
`If you could please openthat
`10
`11 up and let me know whenyou've gotit,
`12 Mr. Lhymn. Thanks.
`13
`A.
`| haveit in front of me.
`14
`Q. Great. Do you recognize the
`15 format of the page before you?
`16
`A.
`It appears to be a Google
`17 Patent screenshot.
`18
`Q. Have you seenthe sort of
`19 rectangle of information that's on the
`20 right, evenif it's not that specific
`21
`information before?
`22
`A.
`| have seen that.
`kk
`
`Youseethereit says, "Patent
`Q.
`2
`3 citation 695, non-patentcitation 161." Do
`4 you haveany reas