Deposition of
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`Matthew Birdsell
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`August 11, 2022
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`Apple Inc.
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`vs.
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`MemoryWeb, LLC
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`© aetu
`URT US.
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`www.aptusCR.com | 866.999.8310
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`MemoryWebEx. 2026
`Apple v. MemoryWeb — IPR2022-00032
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`MemoryWeb Ex. 2026
`Apple v. MemoryWeb – IPR2022-00032
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`·1· · · · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`Page 1
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`·1· ·APPEARANCES (via videoconference):
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`Page 3
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`·2· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· ·APPLE INC.,
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`·5· · · · · Petitioner,
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`·6· · ·vs.
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`·7· ·MEMORYWEB, LLC,
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`·8· · · · · Patent Owner.
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`· · ·________________________________
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`·9
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`11
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`12· · · · · · · · ·DEPOSITION OF MATTHEW BIRDSELL
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`·3· ·For Patent Owner:
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`·4· · · · NIXON PEABODY LLP
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`·5· · · · BY:· JENNIFER HAYES, ESQUIRE
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`·6· · · · 300 S. Grand Avenue, Suite 4100
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`·7· · · · Los Angeles, California· 90071
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`·8· · · · 213.629.6170
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`·9· · · · jenhayes@nixonpeabody.com
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`10
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`11· ·For Petitioner:
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`12· · · · SIDLEY AUSTIN LLP
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`13· · · · · · Reported Remotely through Videoconference
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`13· · · · BY:· KYLE SMITH, ESQUIRE
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`14· · · · · · · · · · · · · August 11, 2022
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`14· · · · BY:· JEFF KUSHAN, ESQUIRE
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`23· ·Reported by:
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`· · ·Margaret A. Smith
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`24· ·RPR, CRR, CSR No. 9733
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`25· ·Job No.:· 10104316
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`15· · · · 1501 K Street, N.W.
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`16· · · · Washington, D.C., 20005
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`17· · · · 202.736.8327
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`18· · · · kyle.smith@sidley.com
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`19· · · · jkushan@sidley.com
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`·1· · · · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`Page 2
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`·1· ·APPEARANCES (via videoconference):(continued):
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`Page 4
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`·2· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· ·APPLE INC.,
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`·5· · · · · Petitioner,
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`·6· · ·vs.
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`·7· ·MEMORYWEB, LLC,
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`·8· · · · · Patent Owner.
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`· · ·________________________________
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`20· · · Deposition of MATTHEW BIRDSELL taken on behalf of
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`21· ·Patent Owner, reported remotely through videoconference,
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`22· ·beginning at 9:15 a.m. PDT, and ending at
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`23· ·12:23 p.m. PDT, on Thursday, August 11, 2022, before
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`24· ·Margaret A. Smith, RPR, CRR, Certified Shorthand
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`25· ·Reporter No. 9733.
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`·3· ·For Petitioner:
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`·4· · · · SIDLEY AUSTIN LLP
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`·5· · · · BY:· RIANA FREEDMAN, ESQUIRE
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`·6· · · · 787 Seventh Avenue
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`·7· · · · New York, New York· 10019
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`·8· · · · 212.839.5540
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`·9· · · · rfreedman@sidley.com
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`10
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`11· ·Also present:
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`12· · · · Chris Landrum (Aptus Court Reporting)
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`13· · · · Aaron Huang (Apple)
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`MemoryWeb Ex. 2026
`Apple v. MemoryWeb – IPR2022-00032
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`·1· · · · · · · · · · · · · · I N D E X
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`Page 5
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`·3· ·WITNESS· · · · · · · · · · · · · · · · · · · ·EXAMINATION
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`·4· ·MATTHEW BIRDSELL
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`·5· · · · · · · · · · · ·BY MS. HAYES· · · · · · · · · · 6, 75
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`·6· · · · · · · · · · · ·BY MR. SMITH· · · · · · · · · · · ·74
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`·7
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`·8· · · ·(Previously marked Exhibits 1005, 1020, 1021, 1048,
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`·9· · · · ·and 2010 were referenced and are not attached.)
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`Page 7
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`·1· · · · · · So I'll do my best, and I hope you can do your
`·2· ·best too.· I think we'll get through this just fine.
`·3· · · · · · Is there anyone in the room with you today?
`·4· · · ·A· · Yes.· Kyle -- I forget your last name.
`·5· · · · · · MR. SMITH:· Smith.
`·6· · · · · · THE WITNESS:· Kyle Smith is next to me to my
`·7· ·left.
`·8· ·BY MS. HAYES:
`·9· · · ·Q· · Thank you.
`10· · · · · · And where are you located for today's
`11· ·deposition?
`12· · · ·A· · We are in Valley Green Six, which is a
`13· ·(inaudible) building in Cupertino.
`14· · · · · · THE REPORTER:· May the reporter hear in the
`15· ·answer again, which is a, blank, building in Cupertino.
`16· · · · · · THE WITNESS:· It's the name of the building.
`17· ·Valley Green Six.· Valley Green is two words.
`18· · · · · · THE REPORTER:· Thank you.
`19· ·BY MS. HAYES:
`20· · · ·Q· · And we're doing this as a remote deposition.
`21· ·So I believe you are using a computer to connect to
`22· ·today's deposition.· Is that right?
`23· · · ·A· · That is correct.
`24· · · ·Q· · And other than the Zoom program and any
`25· ·programs to view exhibits, are you running any programs
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`Page 6
`·1· · · · Reported Remotely; August 11, 2022; 9:15 a.m. PDT;
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`·3· · · · · · · · · · · · MATTHEW BIRDSELL,
`·4· ·having been first duly sworn, was examined and testified
`·5· ·as follows:
`·6
`·7· · · · · · · · · · · · · ·EXAMINATION
`·8· ·BY MS. HAYES:
`·9· · · ·Q· · Good morning.· Can you please state your name
`10· ·for the record.
`11· · · ·A· · Yes.· My name is Matthew Birdsell.
`12· · · ·Q· · Thank you, Mr. Birdsell.· My name is Jennifer
`13· ·Hayes.· I'll be asking you some questions today.
`14· · · · · · Have you had your deposition taken before?
`15· · · ·A· · I have not.
`16· · · ·Q· · Okay.· If there is any reason that you need to
`17· ·take a break, just let me know, and we'll try to take
`18· ·a -- a break as soon as we can.· The only thing I ask is
`19· ·that if there is a question pending, you answer the
`20· ·question before we take a break.
`21· · · · · · The court reporter is here -- I'll be asking
`22· ·you a series of questions.· And she will be writing down
`23· ·both my questions and your answers.· And so it's
`24· ·important for there to be a clear record that we not
`25· ·talk over one another.
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`Page 8
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`·1· ·on your computer?
`·2· · · ·A· · I'm currently only running Zoom on my computer.
`·3· · · ·Q· · Okay.· Is there any reason why you cannot
`·4· ·testify truthfully today?
`·5· · · ·A· · No.
`·6· · · ·Q· · And you understand that you're here today to
`·7· ·offer testimony relating to a declaration that you
`·8· ·submitted in some IPRs that -- and a PGR that were filed
`·9· ·by Apple.· Is that correct?
`10· · · ·A· · I understand that I'm here to testify according
`11· ·to the declaration that I provided for the team.· The
`12· ·other words that you said, I'm not familiar with.
`13· · · ·Q· · Understood.
`14· · · · · · So you -- can you describe the -- the
`15· ·declaration that you understand you're here to discuss.
`16· · · ·A· · Yes.· I was asked to provide information
`17· ·related to the mechanics of how the Aperture 3 user
`18· ·guide was published and the dates -- the basic dates in
`19· ·which they were published so that they accompanied the
`20· ·release of Aperture 3 and the channels or the different
`21· ·methods in which the documentation was published and
`22· ·accessed by customers.
`23· · · ·Q· · Do you have a copy of your declaration in front
`24· ·of you now?
`25· · · ·A· · I do.
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`Page 9
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`·1· · · ·Q· · Okay.· And what is the date of that
`·2· ·declaration?
`·3· · · ·A· · I signed it on October 29th, 2021.
`·4· · · · · · MS. HAYES:· Mr. Smith, can we stipulate that
`·5· ·the declaration that Mr. Birdsell has in front of him is
`·6· ·the same declaration that was filed by Apple in the
`·7· ·three IPRs and PGR?
`·8· · · · · · MR. SMITH:· Yes.
`·9· ·BY MS. HAYES:
`10· · · ·Q· · Okay.· So I'll be asking you, Mr. Birdsell,
`11· ·about the declaration that is dated October 29th, 2021.
`12· · · · · · Did you personally prepare that declaration?
`13· · · ·A· · It was a collaborative effort between outside
`14· ·counsel, Apple's in-house counsel, and myself.
`15· · · ·Q· · And do you recall who those individuals were
`16· ·who you collaborated with?
`17· · · ·A· · It was Aaron, in-house counsel, and Jeff
`18· ·Kushan.
`19· · · ·Q· · And by Aaron, do you mean Mr. Huang?
`20· · · ·A· · Mr. Huang, yes.
`21· · · ·Q· · How much time did you spend preparing your
`22· ·declaration?
`23· · · ·A· · It was a matter of hours.· I don't remember
`24· ·exactly how many.
`25· · · ·Q· · And when you prepared the declaration, did you
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`Page 11
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`·1· ·Aperture application?
`·2· · · ·A· · That's a hard question.· I -- I mean, the
`·3· ·application is available.· So -- but I was provided
`·4· ·copies of the Aperture application from -- from counsel.
`·5· · · ·Q· · Were you provided a computer that already had
`·6· ·the Aperture program loaded on it, or did you load the
`·7· ·Aperture program onto a computer?
`·8· · · ·A· · The answer is yes and yes.· So I had a -- they
`·9· ·provided a laptop with the application installed and
`10· ·then an academic copy and a retail copy of -- hard copy
`11· ·of -- I mean, the actual product itself, the product box
`12· ·and I went through the install procedure to refresh my
`13· ·memory on the process.
`14· · · · · · THE REPORTER:· May the reporter verify, in the
`15· ·answer, please, and I went through the, blank, to
`16· ·refresh my memory on the process.
`17· · · · · · THE WITNESS:· I went through the install
`18· ·procedure to refresh my memory on the process of
`19· ·installing the application onto the device.
`20· · · · · · THE REPORTER:· Thank you.
`21· ·BY MS. HAYES:
`22· · · ·Q· · And do you know how counsel came across copies
`23· ·of the Aperture application?
`24· · · ·A· · Could you rephrase your question because I'm --
`25· ·or add some more context to the question, please.
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`Page 10
`·1· ·review any documents or consult any information?
`·2· · · ·A· · Yes.· We reviewed exhibits to verify the
`·3· ·veracity.· So yes.
`·4· · · ·Q· · And are all of those exhibits referenced in
`·5· ·your declaration?
`·6· · · ·A· · I believe so, yes.
`·7· · · ·Q· · And so as far as you recall, you didn't
`·8· ·consider any information or documents that are not
`·9· ·referenced in your declaration.· Is that correct?
`10· · · · · · MR. SMITH:· Objection.· Form.
`11· · · · · · THE WITNESS:· Yeah, we looked at the
`12· ·application.· We looked at, you know, the PDFs and such.
`13· ·So we looked at a range of documents.· But in the
`14· ·declaration that's specific to my testimony, that's what
`15· ·my declaration covers.
`16· ·BY MS. HAYES:
`17· · · ·Q· · When you say you referred to the application,
`18· ·are you referring to the Aperture application?
`19· · · ·A· · Yes.
`20· · · ·Q· · So you -- you reviewed an actual -- the
`21· ·actual -- like a physical copy running on a laptop of
`22· ·the Aperture application.
`23· · · · · · Is that what you mean?
`24· · · ·A· · Yes.
`25· · · ·Q· · Okay.· And were you involved in locating the
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`·1· · · ·Q· · So let me back up.
`·2· · · · · · Did you obtain the application from Apple's
`·3· ·in-house counsel, or the counsel for Apple at Sidley?
`·4· · · ·A· · I don't know.· I was provided a copy from a --
`·5· ·the courier sent the -- you know, because of the
`·6· ·pandemic, a courier sent the device and the hard copies
`·7· ·of Aperture to my house.
`·8· · · ·Q· · Got it.
`·9· · · · · · And so you -- you don't know where those copies
`10· ·of Aperture came from before they arrived at your house
`11· ·from the courier.· Is that fair?
`12· · · ·A· · I know that both in-house and out -- and --
`13· ·both the in-house counsel and the outside counsel and
`14· ·myself were all in conversation about receiving it. I
`15· ·don't know who the person that made the box and put the
`16· ·things in it and sent it to me.· So that's the best I
`17· ·can --
`18· · · ·Q· · Do you -- thank you.
`19· · · · · · Do you know whether the information you
`20· ·received was, for example, purchased from eBay or
`21· ·whether it came from Apple's internal resources?
`22· · · ·A· · I do not.
`23· · · ·Q· · Are you aware of any errors or
`24· ·misrepresentations in your declaration?
`25· · · ·A· · I am aware of an error in paragraph 5 where we
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`Page 13
`·1· ·misstated the page number, Exhibit 1021.· This would
`·2· ·have been my mistake when reviewing it because I'm not
`·3· ·familiar with -- I'm not a paralegal or a lawyer.· And
`·4· ·I'm not familiar with the syntax of citing exhibits.· So
`·5· ·I believe it's page 7.· But it's not page 2.
`·6· · · ·Q· · Understood.· Thank you.
`·7· · · ·A· · We have submitted subsequent versions of this
`·8· ·document with the corrected number, page number.
`·9· · · ·Q· · And in the version that you have in front of
`10· ·you, does it have -- is it the corrected version?
`11· · · ·A· · No.· It lists the original.
`12· · · ·Q· · So if you could turn to paragraph 2 of your
`13· ·declaration.
`14· · · ·A· · I'm there.
`15· · · ·Q· · In paragraph 2, you state that you relied on
`16· ·your personal knowledge for the information as it
`17· ·relates to Apple's publication and dissemination of the
`18· ·Aperture 3 user manual.
`19· · · · · · Do you see that?
`20· · · ·A· · Yes.
`21· · · ·Q· · What is the basis of your personal knowledge?
`22· · · ·A· · I have worked at Apple for 20 years, both as an
`23· ·employee and both as a -- as a consultant.· And I have
`24· ·been deeply involved in the publication process of not
`25· ·just Aperture but, you know, scores of different
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`·1· · · ·A· · In 2002 and 2003, I was an employee.· So I was
`·2· ·a W-2 employee.· And at that time, I was writing -- I
`·3· ·was a technical writer and instructional designer.
`·4· ·They're kind of similar -- similar job roles and are
`·5· ·used interchangeably.· And I worked on Final Cut Pro.
`·6· · · · · · THE REPORTER:· I apologize, may the reporter
`·7· ·verify, in the answer, please, was the term structural
`·8· ·designer or instructional?
`·9· · · · · · THE WITNESS:· Instructional.
`10· · · · · · THE REPORTER:· Thank you.
`11· ·BY MS. HAYES:
`12· · · ·Q· · You mentioned Final Cut Pro.· What is Final Cut
`13· ·Pro?
`14· · · ·A· · It's a professional nonlinear editing program
`15· ·that's used to make movies for commercials and things of
`16· ·that nature.
`17· · · ·Q· · So you were an employee in 2002/2003 time
`18· ·frame.· Right?
`19· · · ·A· · Yes.
`20· · · ·Q· · And then in January and June of 2010, you were
`21· ·an independent consultant.· Is that right?
`22· · · ·A· · If memory serves, I believe I became an
`23· ·employee in February or March of 2010.
`24· · · · · · Maybe -- maybe a couple of months later,
`25· ·actually.· But it was around the spring of 2010 that I
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`·1· ·products at Apple.· And we basically follow the same,
`·2· ·you know, process for publication -- for publishing
`·3· ·documents, specifically in user help documents like user
`·4· ·guides and user manuals.· And that's the knowledge that
`·5· ·I'm relying on.
`·6· · · ·Q· · So you've mentioned that you've worked at Apple
`·7· ·as both an independent consultant and as an employee.
`·8· · · · · · When did you become an employee of Apple?
`·9· · · ·A· · I first became an employee in -- in October of
`10· ·2002.· And then I terminated my employment
`11· ·December 31st, 2007 to move back to Texas.· My wife and
`12· ·I were nesting.· And I was asked to stay on.· But I had
`13· ·to stay on as a 1099 employee because Apple didn't --
`14· ·wasn't -- didn't really approve of remote work at the
`15· ·time.
`16· · · · · · And then I worked as a 1099 employee, a
`17· ·consultant, through until the year 2010 where I became
`18· ·an employee again.
`19· · · · · · THE REPORTER:· May the reporter verify, in the
`20· ·answer, please, was the term my wife and I were nesting?
`21· · · · · · THE WITNESS:· Nesting.
`22· · · · · · THE REPORTER:· Thank you.
`23· ·BY MS. HAYES:
`24· · · ·Q· · Can you describe what work you were doing as an
`25· ·independent consultant in the 2002 and 2003 time frame.
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`·1· ·became an employee.
`·2· · · ·Q· · Was the work --
`·3· · · ·A· · Sorry.
`·4· · · ·Q· · Yeah, sorry.
`·5· · · · · · Was the work you were doing in the 2010 time
`·6· ·frame different as an employee than as an independent
`·7· ·consultant?
`·8· · · ·A· · Not in any way.
`·9· · · ·Q· · In 2010, can you describe what your
`10· ·responsibilities were at Apple.
`11· · · ·A· · In 2010, my responsibilities at Apple was I was
`12· ·the head instructional designer for Aperture.· And so
`13· ·meant that I was responsible for writing the user guide
`14· ·and -- also known as the user manual, and all of the
`15· ·supporting documents such as supporting (inaudible) --
`16· · · · · · THE REPORTER:· I'm sorry, sometimes your speech
`17· ·gets fast and it glosses over the enunciation.· If I
`18· ·could hear again.
`19· · · · · · All of the supporting documents such as
`20· ·supporting --
`21· · · · · · THE WITNESS:· Sure.· Such as exploring Aperture
`22· ·and the keyboard shortcuts document, Aperture 3 keyboard
`23· ·shortcuts.· So I was responsible for ensuring that it
`24· ·was localized, that it was comprehensive and covered --
`25· ·completely covered the product and that it was published
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`Page 17
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`·1· ·and verified that it was published, all aspects, every
`·2· ·page, every link, and making sure that everything
`·3· ·worked.
`·4· ·BY MS. HAYES:
`·5· · · ·Q· · You mentioned that one of your responsibilities
`·6· ·included making sure the user manuals were localized.
`·7· ·What do you mean by "localized"?
`·8· · · ·A· · That they were translated for the foreign
`·9· ·markets in which we sold the product.· So it was a
`10· ·localization department, and I ensured that they were
`11· ·handed off to the localization department, that they
`12· ·were translated and brought back and were available at
`13· ·(inaudible) --
`14· · · · · · THE REPORTER:· And available at -- can I hear
`15· ·again, please.
`16· · · · · · THE WITNESS:· First customer ship.
`17· · · · · · THE REPORTER:· Thank you.
`18· · · · · · THE WITNESS:· And I want to clarify I was not
`19· ·responsible for localizing the document.· I was just
`20· ·responsible for that app to make sure that happened.
`21· ·BY MS. HAYES:
`22· · · ·Q· · So you refer to your title as an instructional
`23· ·designer.· Is that right?
`24· · · ·A· · That is correct.
`25· · · ·Q· · And so as an instructional designer at Apple,
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`·1· · · · · · MR. SMITH:· Objection.· Form.
`·2· · · · · · THE WITNESS:· We would have documented various
`·3· ·processes.· I don't know if there was something that was
`·4· ·all-encompassing.· I can't recall.
`·5· ·BY MS. HAYES:
`·6· · · ·Q· · Did Apple have any written policies or
`·7· ·procedures relating to the publication of the user
`·8· ·manual?
`·9· · · · · · MR. SMITH:· Same objection.
`10· · · · · · THE WITNESS:· I don't recall.· That's very
`11· ·broad.· I'm sorry.
`12· ·BY MS. HAYES:
`13· · · ·Q· · The Aperture 3 user manual that you referenced
`14· ·in your declaration, do you know how many HTML files are
`15· ·in that Aperture 3 user manual?
`16· · · ·A· · Not off the top of my head.
`17· · · ·Q· · Would it surprise you that there are more than
`18· ·700HT ML files in that Aperture 3 user manual?
`19· · · ·A· · No.
`20· · · ·Q· · When you prepared your declaration, did you
`21· ·review each of the HTML files in the Aperture 3 user
`22· ·manual?
`23· · · ·A· · I reviewed the files.· I did not review every
`24· ·single one, but I did review it to refresh my memory to
`25· ·ensure that they were in fact what we shipped with
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`·1· ·did you have any other responsibilities?
`·2· · · ·A· · At this time, those are my responsibilities.
`·3· · · ·Q· · Okay.· And so you were the instructional
`·4· ·designer for the Aperture 3 product.· Is that right?
`·5· · · ·A· · Yes.
`·6· · · ·Q· · Were there any other instructional designers
`·7· ·for Aperture 3?
`·8· · · ·A· · Yes.· There -- there would have been people
`·9· ·that would have helped out, either helping to shoot
`10· ·screen shots.· They may have covered a -- a few pages
`11· ·for me.· This was pretty standard amongst all of our
`12· ·products, we would help each other out.· So other --
`13· ·other instructional designers would be assigned to other
`14· ·products, and we would just help each other out.
`15· · · ·Q· · What was the format of the Aperture 3 user
`16· ·manual that you worked on?
`17· · · ·A· · At this time, it was authored in XML.· And then
`18· ·we would use a transform engine to transform that XML to
`19· ·HTML.· And -- and then we also flowed the XML into
`20· ·in-design to create the PDFs.· So the XML transformed to
`21· ·HTML.· And then XML, that would be transformed and
`22· ·flowed into in-design for the PDFs.
`23· · · ·Q· · At the time that you were doing this, did Apple
`24· ·have documentation describing its policies or procedures
`25· ·relating to preparing the user manual?
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`·1· ·Aperture 3.
`·2· · · ·Q· · Did you review the HTML files themselves or a
`·3· ·PDF of the HTML files, or both?
`·4· · · ·A· · Both.
`·5· · · ·Q· · Did you prepare the PDF of the HTML files?
`·6· · · ·A· · I did not.
`·7· · · ·Q· · You mentioned that Apple also prepared a PDF
`·8· ·version of the Aperture 3 user manual.· Is that right?
`·9· · · ·A· · Yes.
`10· · · ·Q· · And your declaration does not discuss the
`11· ·public availability of the PDF format of the user --
`12· ·Aperture 3 user manual.· Correct?
`13· · · ·A· · I believe we covered that in page 9 of the
`14· ·declaration.
`15· · · ·Q· · And can you tell me what specifically you're
`16· ·looking at in your declaration.
`17· · · ·A· · I'm looking at paragraph 9 in the declaration,
`18· ·the Aperture 3 manual existed in at least two forms --
`19· · · · · · THE REPORTER:· I'm sorry, if I could hear
`20· ·again.
`21· · · · · · THE WITNESS:· I'll slow down.· I apologize.
`22· · · · · · THE REPORTER:· Thank you.
`23· · · · · · THE WITNESS:· The Aperture 3 manual existed in
`24· ·at least two forms, an interlinked set of HTML files
`25· ·with their associated resources, e.g., images, and a PDF
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`·1· ·format file.· There's additional text.· But I don't know
`·2· ·if you'd like me to read that as well.
`·3· ·BY MS. HAYES:
`·4· · · ·Q· · And the only reference to the PDF format file
`·5· ·in your declaration is in paragraph 9.· Correct?
`·6· · · · · · MR. SMITH:· Objection.· Form.
`·7· · · · · · THE WITNESS:· We also show a link to the
`·8· ·Aperture 3 user manual, the PDF version, as a screen
`·9· ·shot and between paragraphs 18 and 19.
`10· ·BY MS. HAYES:
`11· · · ·Q· · And so the screen shot between paragraphs 18
`12· ·and 19, the text link to user manual was added.· Right?
`13· · · ·A· · No.· That's -- that was added to the screen
`14· ·shot.· I'm speaking to the bottom right corner of that
`15· ·screen shot, there's a support resources.· And there's
`16· ·an icon which indicated a link to the Aperture 3 user
`17· ·manual.· And specifically that's the Adobe PDF icon.
`18· · · · · · So if a customer would have clicked it on the
`19· ·support site, they would have -- it would have initiated
`20· ·a download from -- into the browser of the PDF.
`21· · · ·Q· · But your -- your declaration does not describe
`22· ·or discuss the public availability of the PDF of the
`23· ·Aperture 3 user manual.· Correct?
`24· · · ·A· · I don't know that it doesn't.
`25· · · ·Q· · What -- what do you mean by that?
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`·1· ·resale version, also known as an NFR.
`·2· · · ·Q· · But I believe your declaration says that those
`·3· ·all were the same --
`·4· · · ·A· · Yes.· It would have been --
`·5· · · · · · THE REPORTER:· I'm sorry, with the overlap, may
`·6· ·I hear again, please.
`·7· · · · · · THE WITNESS:· I -- I -- I apologize for
`·8· ·speaking over you.
`·9· · · · · · Yes, they would have been identical.
`10· ·BY MS. HAYES:
`11· · · ·Q· · And so the -- when you refer to a retail box,
`12· ·that's one example of the DVD bundle.· Is that correct?
`13· · · ·A· · Yes.
`14· · · ·Q· · In the IPRs and PGR that were filed by Apple,
`15· ·they submitted a declaration, a Mr. Terveen.
`16· · · · · · Have you spoken with Mr. Terveen?
`17· · · ·A· · No.
`18· · · ·Q· · Have you reviewed Mr. Terveen's declaration?
`19· · · ·A· · No.
`20· · · ·Q· · In the IPRs and the PGR, MemoryWeb, my client,
`21· ·submitted a declaration of a Mr. Surati.
`22· · · · · · Have you reviewed the declaration of
`23· ·Mr. Surati?
`24· · · ·A· · No.· I -- I have not reviewed any documents
`25· ·from MemoryWeb, and I do not know what an IPR or PGR is.
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`·1· · · ·A· · Well, we state that it exists in -- in
`·2· ·paragraph 8.· There's nothing in here that states that
`·3· ·it doesn't exist as a publicly available link.· I state
`·4· ·for -- on the record that I know that it did exist.· It
`·5· ·was available on the DVD bundle.· It was available on
`·6· ·the support site.· It would have been available within
`·7· ·the app.· And so we would have labored hard to ensure
`·8· ·that our customers had access to it in addition to the
`·9· ·HTML.
`10· · · ·Q· · You mentioned the DVD bundle.· What do you mean
`11· ·by that?
`12· · · ·A· · The DVD -- the physical DVD that the customer
`13· ·would have received when they purchased the product.· So
`14· ·the install disk.
`15· · · ·Q· · So you're -- you're saying the install disk
`16· ·also had a PDF of the Aperture 3 user manual?
`17· · · ·A· · I believe so, yes.
`18· · · ·Q· · Was a physical copy of the Aperture 3 user
`19· ·manual included with the DVD bundle?
`20· · · ·A· · Yes.
`21· · · ·Q· · Your declaration refers to a retail box.· Is a
`22· ·DVD bundle the same as a retail box?
`23· · · ·A· · No.· The DVD bundle would have -- would have
`24· ·come in three forms.· Right?· There would have been a
`25· ·retail version, an academic version, and then a not for
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`·1· · · ·Q· · Understood.· Thank you.
`·2· · · · · · If we can next go to paragraph 12 of your
`·3· ·declaration.
`·4· · · · · · THE REPORTER:· Counsel, for the reporter, the
`·5· ·documents I downloaded from the box were pre-labeled
`·6· ·with an exhibit designation.· Are you referring to those
`·7· ·in the deposition now?
`·8· · · · · · MS. HAYES:· Yeah.· Thanks for clarifying.· So
`·9· ·Mr. Birdsell's declaration is Exhibit 1020.· And the
`10· ·same declaration was submitted in each of the IPRs and
`11· ·PGR but with a different cover sheet.
`12· · · · · · And so we're referring to Exhibit 1020, which
`13· ·is Mr. Birdsell's declaration.
`14· · · · · · THE REPORTER:· And attaching it to the
`15· ·deposition as well?
`16· · · · · · MS. HAYES:· It doesn't need to be attached to
`17· ·the deposition as well.
`18· · · · · · THE REPORTER:· Or marking it for the
`19· ·deposition?
`20· · · · · · MS. HAYES:· I think we should refer to it as
`21· ·Exhibit 1020 at least for purposes of clarity.· But it
`22· ·doesn't need to be marked because it's already of record
`23· ·in the IPR.
`24· · · · · · THE REPORTER:· Thank you very much.
`25· ·BY MS. HAYES:
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`·1· · · ·Q· · Mr. Birdsell, are you at paragraph 12?
`·2· · · ·A· · I am.
`·3· · · ·Q· · Okay.· Thank you.· So paragraph 12 has several
`·4· ·subparts.
`·5· · · · · · Do you see those?
`·6· · · ·A· · I do.
`·7· · · ·Q· · And subpart A is what I would like to direct
`·8· ·your attention to.· Here, you say the Aperture 3 user
`·9· ·manual HTML file set could be retrieved from the
`10· ·Aperture 3 installation DVD and viewed with a web
`11· ·browser.
`12· · · · · · Do you see that?
`13· · · ·A· · Yes.
`14· · · ·Q· · And when you refer to the Aperture 3 user
`15· ·manual HTML file set here, are you referring to
`16· ·accessing the HTML files on the DVD before you install
`17· ·Aperture 3 on a computer?
`18· · · ·A· · Yes.
`19· · · ·Q· · Isn't it true that those files on the
`20· ·installation DVD are hidden by default?
`21· · · ·A· · Well, they are included in the application
`22· ·package folder, and then they are copied over wholesale
`23· ·with the application files folder as intended to install
`24· ·it on the customer's device.
`25· · · ·Q· · But those files would be hidden by default.
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`·1· ·to use -- to access the HTML files.· It's just one of
`·2· ·the ways in which they could.
`·3· · · ·Q· · What is the common use case for customers to
`·4· ·access those files?
`·5· · · ·A· · Google.
`·6· · · · · · THE REPORTER:· Can I hear again, please, after
`·7· ·Google.
`·8· · · · · · THE WITNESS:· A Google search for the user
`·9· ·guide.
`10· ·BY MS. HAYES:
`11· · · ·Q· · And so you're saying a customer or user would
`12· ·use Google to locate the HTML files of the Aperture 3
`13· ·user manual.· Is that correct?
`14· · · · · · MR. SMITH:· Objection.· Form.
`15· · · · · · THE WITNESS:· It is the most common use case.
`16· ·BY MS. HAYES:
`17· · · ·Q· · In paragraph 13 of your declaration, you say --
`18· ·and I'm looking at the bottom of page 5, it says "The
`19· ·Aperture 3 file bundle is located in a compressed file
`20· ·on the Aperture installer DVD."
`21· · · · · · Do you see that?
`22· · · ·A· · I do.
`23· · · ·Q· · And so the -- this compressed file, is that
`24· ·what a user would see if they did the right click or
`25· ·control click that we discussed earlier?
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`·1· ·Right?
`·2· · · · · · MR. SMITH:· Objection.· Form.
`·3· · · · · · THE WITNESS:· They are within the application
`·4· ·folder.
`·5· ·BY MS. HAYES:
`·6· · · ·Q· · And the application folder is hidden unless a
`·7· ·user unhides it.· Correct?
`·8· · · ·A· · They have to right click on it or control
`·9· ·click.
`10· · · ·Q· · They have to right click or control click on
`11· ·what?
`12· · · ·A· · On the application.
`13· · · · · · And --
`14· · · ·Q· · And if -- and if a user right clicks or control
`15· ·clicks on the user icon for the application, what
`16· ·happens?
`17· · · ·A· · Then it reveals the entire contents of the
`18· ·Aperture calculated file or the application package
`19· ·file.· And they have access to all the content, all the
`20· ·languages, all the supporting graphics, UI files, text
`21· ·strings.
`22· · · ·Q· · Are you aware of any user customers -- users or
`23· ·customers that actually right clicked or control clicked
`24· ·to view those files?
`25· · · ·A· · This is not the common use case for a customer
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`·1· · · ·A· · Yes.
`·2· · · ·Q· · And then you continue and say "Decompressing
`·3· ·the compressed file yields a folder containing several
`·4· ·subfolders and many different files including the
`·5· ·Aperture application file bundle."
`·6· · · · · · Do you see that?
`·7· · · ·A· · Yes.
`·8· · · ·Q· · And so when you say "decompressed the
`·9· ·compressed file," is that what happens when a user right
`10· ·clicks or control clicks on the file?
`11· · · ·A· · Yes.· It reveals the contents of it.
`12· · · ·Q· · Would the user then store that decompressed
`13· ·file on their computer?
`14· · · ·A· · If they chose to.
`15· · · ·Q· · Would they need to store the decompressed file
`16· ·in order to view the HTML file set?
`17· · · ·A· · No.
`18· · · ·Q· · Do you know how many subfolders and folders
`19· ·are -- would have been in that Aperture 3 file bundle?
`20· · · ·A· · I don't know a specific number off the top of
`21· ·my head.· I know that there are quite a few.
`22· · · ·Q· · Quite a few.
`23· · · · · · More than 100?
`24· · · · · · MR. SMITH:· Objection.· Form.· Foundation.
`25· · · · · · THE WITNESS:· I -- I can't speculate at that
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`·1· ·number.
`·2· ·BY MS. HAYES:
`·3· · · ·Q· · Do you know which folder or subfolder contained
`·4· ·the Aperture 3 user manual file set?
`·5· · · ·A· · It would have been in an English LPROJ folder.
`·6· ·So it would be like resources English LPROJ.· And then
`·7· ·there would have been a user manual folder which
`·8· ·contained the indexed HTML file, which is the homepage
`·9· ·for the entire user manual.
`10· · · ·Q· · When you prepared your declaration, did you go
`11· ·through each of the steps to locate where the user
`12· ·manual was on the DVD?
`13· · · ·A· · I did.
`14· · · ·Q· · And did you consult anyone while you did that?
`15· · · ·A· · I did not.
`16· · · ·Q· · Did you verify whether the user manual file set
`17· ·on the DVD is the same as the Aperture 3 user manual
`18· ·that was available on Apple's website?
`19· · · ·A· · I verified it by ensuring that the pages
`20· ·matched -- the contents of the pages matched one for
`21· ·one.· I didn't check every single page, but I checked
`22· ·many of them to ensure that they matched.
`23· · · ·Q· · If we could go back to paragraph 12.· This time
`24· ·subsection B.
`25· · · ·A· · I see it.
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`·1· ·minimum OS, and then minimum hardware.
`·2· ·BY MS. HAYES:
`·3· · · ·Q· · And do you recall what the minimum OS and
`·4· ·minimum hardware would have been for Aperture 3 --
`·5· · · ·A· · I'm sorry.· I do not.· It's too long ago.
`·6· · · ·Q· · Understood.
`·7· · · · · · So when a user is accessing the HTML file set
`·8· ·through the help viewer, Aperture 3 is actually running
`·9· ·on the computer.· Is that right?
`10· · · ·A· · Yes.
`11· · · ·Q· · And then in paragraph 16, you mentioned that
`12· ·the Aperture 3 user manual HTML file set could also be
`13· ·viewed with a web browser.
`14· · · · · · Do you see that?
`15· · · ·A· · I see it.
`16· · · · · · And that is correct.
`17· · · ·Q· · And -- okay.
`18· · · · · · And the Aperture 3 user manual HTML file set
`19· ·that is viewed with the web browser is the same HTML
`20· ·file set that the user would view using the help viewer.
`21· ·Is that correct?
`22· · · ·A· · Correct.
`23· · · ·Q· · How would the user navigate to the Aperture 3
`24· ·user manual HTML file set using the web browser?
`25· · · ·A· · Well, they wouldn't navigate using the web
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`·1· · · ·Q· · So here you say "After Apertur