UNITED STATES PATENT AND TRADEMARK OFFICE
`
`THE DATA COMPANY
`TECHNOLOGIES INC.,
`
`:
`:
`
`DEPOSITION OF:
`
`DAVE LEVIN
`
`Petitioner
`
`Vv.
`
`BRIGHT DATA LTD.,
`
`Patent Owner.
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`Case IPR2022-00138
`IPR2022-00135
`
`Job No.: 5325
`
`The virtual recorded deposition
`
`of DAVE LEVIN,
`
`taken stenographically by Karen
`
`Friedlander, CCR=-NJ, RCR=NY, RMR, RDR, CRR, on
`
`the above date, at 9:00 a.m. ET.
`
`TransPerfect LegalAecelt Speer
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`THE DATA COMPANY
`TECHNOLOGIES INC.,
`
`:
`:
`
`DEPOSITION OF:
`
`DAVE LEVIN
`
`Petitioner
`
`Vv.
`
`BRIGHT DATA LTD.,
`
`Patent Owner.
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`Case IPR2022-00138
`IPR2022-00135
`
`Job No.: 5325
`
`The virtual recorded deposition
`
`of DAVE LEVIN,
`
`taken stenographically by Karen
`
`Friedlander, CCR=-NJ, RCR=NY, RMR, RDR, CRR, on
`
`the above date, at 9:00 a.m. ET.
`
`TransPerfect LegalAecelt Speer
`212-400-8845 - Depo@TransPerfect.com
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`APPEARANCES:
`
`Wolf Greenfield
`BY:
`Adam R. Wichman, Esquire
`600 Atlantic Avenue
`Boston, Massachusetts 02210-2206
`617.646.8571
`Adam.Wichman@wolfgreenfield.com
`Attorneys for Petitioner
`
`Cherian LLP
`BY:
`Thomas M. Dunham, Esquire
`Elizabeth O'Brien, Esquire
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`Tomd@ruyakcherian.com
`Elizabetho@ruyakcherian.com
`Attorneys for Patent Owner
`
`Luis Garcia, Videographer
`
`ALSO PRESENT:
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`Examinations
`
`DAVE LEVIN
`
`BY MR. DUNHAM:
`
`BY MR. WICHMAN:
`
`EXHIBITS
`
`- No exhibits marked -
`
`Description
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`THE VIDEOGRAPHER: Good morning.
`
`We are now on the record. Today's date is
`
`July 22, 2022, and the time is 9:03 a.m. Eastern
`
`Standard Time.
`
`This is the video deposition of
`
`Technologies, Inc., versus Bright Data LTD,
`
`filed in the United States Patent and Trademark
`
`Office before the Patent Trial and Appeal Board,
`
`and the case number is IPR2022-00135,
`
`This deposition is taking place
`
`Via web videoconference with all participants
`
`attending remotely.
`
`My name is Luis Garcia,
`
`I am the
`
`videographer representing TransPerfect Legal
`
`Solutions.
`
`Will counsel on the conference
`
`please identify yourselves and state whom you
`
`represent, beginning with the questioning
`
`Dr. Dave Levin in the matter of The Data Company
`
`MR. WICHMAN: This is Adam
`
`attorney.
`
`MR. DUNHAM: This is Tom Dunham
`
`for patent owner Bright Data Limited.
`
`I'm with
`
`the firm of Cherian LLP, and with me today is
`
`Elizabeth O'Brien.
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`Wichman,
`
`I represent the data company, The Data
`
`Company Technologies, and with me is Dr. Dave
`
`Levin.
`
`I do want
`
`to point out that there
`
`are two cases that are involved today.
`
`It's not
`
`just IPR2022-00135, but also IPR2022-00138.
`
`THE VIDEOGRAPHER:
`
`Thank you.
`
`Our court reporter today is Karen Friedlander
`
`representing TransPerfect Legal Solutions.
`
`Would the court reporter please
`
`Swear in the witness.
`
`(DAVE LEVIN, having been duly sworn as a
`
`witness,
`
`testified as follows:)
`
`MR. DUNHAM: Okay. Would the
`
`but keep the video (sic)
`
`running.
`
`Just to confirm, we are still
`
`recording audio, correct?
`
`THE VIDEOGRAPHER: Correct.
`
`MR. DUNHAM: Okay.
`
`Thank you.
`
`Great. Well, good morning, and
`
`videographer please stop the video recording now
`
`EXAMINATION
`
`BY MR. DUNHAM:
`
`Q.
`
`A.
`
`Dr. Levin, are you ready to go?
`
`I am.
`
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`thank you for being here today.
`
`And, Mr. Wichman,
`
`thank you for
`
`the clarification.
`
`I had intended to note as
`
`well, by agreement by the parties,
`
`the
`
`deposition today is applying to two IPRs,
`
`the
`
`-00135 and the -00138.
`
`So, Dr. Levin, please allow me to
`
`been deposed before?
`
`begin with a little bit of background. Have you
`
`about that yesterday.
`
`A.
`
`Q.
`
`No. This is my first deposition.
`
`Great.
`
`So let me just go over a
`
`few ground rules with you so we can try to make
`
`things as smooth as possible.
`
`A.
`
`Q.
`
`Great.
`
`So I will be asking you a series
`
`of questions.
`
`From time to time, your counsel
`
`may interpose an objection. Unless your counsel
`
`instructs you not to answer, even if he has
`
`objected, please answer my question, okay?
`
`A.
`
`Okay.
`
`MR. DURHAM:
`
`It appears that the
`
`video has frozen of the witness.
`
`Is this something that's been
`
`going on with your system?
`
`I
`
`think I heard
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`MR. WICHMAN:
`
`TI
`
`think we
`
`discovered this -- yes.
`
`(Court reporter seeks
`
`clarification. )
`
`MR. WICHMAN: We discovered that
`
`difficult for the court reporter and that
`
`speak at the same time, it becomes exceptionally
`
`there is this intermittent issue with some calls
`
`freezing on the conference room video.
`
`MR. DURHAM: Well, we'll work
`
`through this. Hopefully, it will go smoothly.
`
`BY MR. DURHAM:
`
`QO.
`
`Dr. Levin, as I said, I'll be
`
`asking you a series of questions, and it's
`
`important when you respond to a question,
`
`that
`
`if you first don't understand the question,
`
`please ask me to clarify, and I'll do my best
`
`to
`
`do so.
`
`In addition, you must always answer with
`
`a verbal answer.
`
`The court reporter will not
`
`take down nods or gestures,
`
`so please always
`
`give an audible answer,
`
`Is that understood?
`
`A.
`
`Q.
`
`I understand, yes.
`
`Thank you. Also, it's important
`
`that we all do our best to make sure we only
`
`speak one person at a time.
`
`If the two of us
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`creates a lot of problems.
`
`So I will do my best
`
`when you are answering me,
`
`to wait until your
`
`answer is complete, and I would ask that you do
`
`the same when I am asking questions.
`
`Please
`
`wait until I have finished asking the questions
`
`before you respond and that will give us a much
`
`cleaner record at the end of the proceeding.
`
`All right?
`
`A.
`
`Q.
`
`Yep, I'll do my best.
`
`We will be going through some
`
`documents today.
`
`I do see you have a few
`
`binders on the table in front of you and then
`
`also some boxes,
`
`the boxes we shipped to you,
`
`and there should be also one box or envelope
`
`don't know if it's that red box or something
`
`different.
`
`A.
`
`QO.
`
`This red box says Sir Speedy on
`
`Great. Most of what
`
`I will be
`
`materials are in front of you on the table that
`
`from Sir Speedy that was -- I believe red, and I
`
`talking to you about
`
`today will be in that red
`
`box with one minor exception, but I do notice
`
`you have a couple of binders in front of you.
`
`Could you please tell me what
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`are not from those boxes?
`
`A.
`
`Yes,
`
`in this binder to my left,
`
`I
`
`have my declaration for the '319 patent, and
`
`this binder here to the right, my right,
`
`I have
`
`my declaration for the '510 patent, and in
`
`front,
`
`these are just the table of contents from
`
`my declaration, and this one I'm pointing to
`
`here,
`
`these are just a printout of the claim
`
`listings from the respective patents.
`
`Oh, and here is a printout of
`
`during the day, please do not hesitate to ask,
`
`Plamondon, as far as I can tell a clean printout
`
`of Plamondon -- I'm sorry,
`
`this is just a blank
`
`legal pad.
`
`©;
`
`Thank you. And I
`
`think you
`
`anticipated my next question.
`
`In terms of the
`
`materials in front of you, are there any notes,
`
`post-its, markings,
`
`tabs, any other markings of
`
`any form in any of those documents you just
`
`identified?
`
`A.
`
`Not to my knowledge, no.
`
`I
`
`flipped through them.
`
`I don't see any, no.
`
`Q.
`
`Okay.
`
`So as we go through the
`
`day today, we'll take a break approximately
`
`every hour.
`
`If at any time you need a break
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`and I'll work with you to get you a break as
`
`question or two to get to the next break, but
`
`I
`
`certainly want to make sure we accommodate any
`
`scheduling issues or if you need just a mental
`
`break or other type of break,
`
`that's fine.
`
`So,
`
`please don't hesitate to let me know. Okay?
`
`A.
`
`QO.
`
`That sounds good,
`
`thank you.
`
`All right. And this question
`
`always sounds a little strange to witnesses, but
`
`it's important we always ask.
`
`Is there any
`
`reason today, such as medication or illness,
`
`anything of that nature,
`
`that would prevent you
`
`from giving complete,
`
`truthful answers in your
`
`testimony?
`
`A.
`
`No, not that I can think of, no.
`
`Okay.
`
`Thank you.
`
`So can you tell me, generally,
`
`quickly as possible. We may have to finish up a
`
`some of the other prior art.
`
`what you did to prepare for the deposition
`
`today?
`
`A.
`
`Generally,
`
`I read back through my
`
`declarations,
`
`I read back through and
`
`refamiliarized myself with the patents,
`
`the '319
`
`patent and the '510 patent, and Plamondon and
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`
`T spoke with Mr. Wichman about
`
`what a deposition process is like and watched
`
`some YouTube videos, seeing as how I mentioned,
`
`this is my first deposition,
`
`I wasn't really
`
`sure what it was.
`
`So basic background preparation,
`
`refamiliarizing myself with these documents.
`
`I
`
`also spoke with my dad. Turns out my dad had
`
`given depositions years and years ago and he
`
`me some other links to YouTube videos.
`
`So
`
`generally speaking, that's what
`
`I did.
`
`Q.
`
`Approximately how much time did
`
`you spend preparing for the deposition today?
`
`A.
`
`I'm not sure exactly.
`
`How much
`
`time -- in terms of a number of hours?
`
`Q.
`
`A.
`
`Yes.
`
`I'm not sure exactly.
`
`I started
`
`preparing last week and spent
`
`time each day this
`
`week.
`
`In terms of number of hours,
`
`I'm not sure
`
`off the top of my head.
`
`Q.
`
`Would you say more than a full
`
`just gave me some general advice and also sent
`
`More than two days?
`
`day preparing?
`
`Yes.
`
`A.
`
`QO.
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`
`A.
`
`Q.
`
`More than two work days? Yes,
`
`Have you been keeping track of
`
`your time in these two matters?
`
`A.
`
`I have been keeping track of the
`
`time,
`
`I just don't remember it off the top of my
`
`head.
`
`Q.
`
`Sure.
`
`Do you have -- can you
`
`tell me how many hours in total you have devoted
`
`to these two particular matters?
`
`A.
`
`In total, even beyond the
`
`preparing for the deposition?
`
`Yes, sir.
`
`either.
`
`I'm sorry.
`
`I don't remember that
`
`Do you know if it's more than 50
`
`A.
`
`Q.
`
`I don’t remember.
`
`I'm sorry.
`
`IT want to mark two exhibits just
`
`for -- so they're in the record. These are not
`
`Correct.
`
`going to be among the documents in front of you.
`
`These are just your notices of
`
`deposition, which are paper 15 from both IPRs.
`
`I am assuming from what you've told me, you do
`
`not have those in front of you;
`
`is that correct?
`
`A.
`
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`Q.
`
`They are in Box 1 that we
`
`shipped, and if you are able to open Box 1,
`
`they
`
`would be in the first file folder to the left.
`
`A.
`
`QO.
`
`I'm not sure which one is Box 1,
`
`Is there a green tear sheet
`
`in
`
`the box you just opened on top?
`
`A.
`
`Not that I see.
`
`I don't see a
`
`green tear sheet.
`
`Q.
`
`Okay.
`
`Can you open the Sir
`
`Speedy box,
`
`then,
`
`the red box, please.
`
`A.
`
`There's some tape here.
`
`I've
`
`just opened it.
`
`Q.
`
`There should be two papers,
`
`they
`
`just will say patent owner's notice of
`
`deposition of Dave Levin.
`
`A.
`
`I see --— I see one stapled
`
`as paper 15 and these are the notices of
`
`document with three pages that says that, and
`
`that refers to case IPR2022-00138.
`
`QO.
`
`Sure. And there should be
`
`another one just like it for the 135 case.
`
`A.
`
`Q.
`
`Yes,
`
`I have the notice.
`
`Okay. All right.
`
`So for the
`
`record -- and thank you for retrieving those
`
`from the box. These are both marked in the IPRs
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`deposition that patent owners served for your
`
`deposition today,
`
`for both IPRs,
`
`the 135 case
`
`and the 138 case.
`
`And my question is, sir, have you
`
`seen these notices of deposition before?
`
`A.
`
`O's
`
`I have not.
`
`You do understand you're
`
`testifying nere today in response to these
`
`notices to give testimony about
`
`the opinions
`
`you've rendered in the two IPRs,
`
`the 135 IPR and
`
`the 138 IPR, correct?
`
`A.
`
`Q.
`
`That's my understanding, yes.
`
`So today your testimony is just
`
`as if you were in court under oath in front of a
`
`tribunal.
`
`You understand that, correct?
`
`A.
`
`O'.
`
`I understand.
`
`Okay.
`
`Thank you. That is --
`
`that is the bulk of my housekeeping,
`
`so you can
`
`certainly place those notices aside now,
`
`A.
`
`Q.
`
`Thank you.
`
`What
`
`I would like to do now is
`
`work primarily from your declaration in the 135
`
`proceed to asking you some questions about some
`
`things you've made in statements in your
`
`declarations, and for convenience,
`
`I'm going to
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`that I had -— I may have not drafted
`
`here and there in terms of the specific wording
`
`of that,
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`IPR, and that is Exhibit No, 1003 from the IPR.
`
`So if you could get that
`
`declaration handy,
`
`that would be great. And
`
`this would be the declaration on the '319
`
`patent.
`
`IT have that declaration in front
`
`Q.
`
`Okay. Before I get into the
`
`substance, did you draft your declarations in
`
`this case?
`
`A.
`
`Yes,
`
`I did. There were some
`
`parts of it, especialiy the guite specifics
`
`legal background part.
`
`I'm not a lawyer,
`
`I'm
`
`not trained in the law.
`
`I did not write the
`
`first draft of that,
`
`the lawyers did, but
`
`I read
`
`it,
`
`I understand it, and this is my report and I
`
`know I'm going to have to answer guestions about
`
`it.
`
`Q.
`
`Did you draft the remaining
`
`portions of the declarations, besides the legal
`
`section, as you've just explained?
`
`A.
`
`Yes,
`
`there may have been a couple
`
`small parts.
`
`So again,
`
`there's some legalese
`
`
`
`initially or may have had some help with.
`
`Things also like the references,
`
`I didn't fill
`
`in the exact reference numbers to reference
`
`paragraphs. There are some things that worked
`
`with that, but, yes,
`
`I did.
`
`Q.
`
`Okay. We had received an email
`
`from Mr. Wichman on July 19th at 6:26 p.m.,
`
`indicating several corrections that you had
`
`wished to make to your declarations, and my
`
`guestion is --
`
`MR. WICHMAN: Objection.
`
`MR. DUNHAM:
`
`Pardon?
`
`MR. WICHMAN: That's misstating
`
`the record.
`
`He identified two typographic
`
`errors.
`
`BY MR. DUNHAM:
`
`Q.
`
`Well, are those errors you wish
`
`to correct in your report, sir?
`
`A.
`
`I don't recali exactly which
`
`errors you're -—-— which typographic errors you
`
`are referring to.
`
`Q.
`
`Well, sir,
`
`then, sitting here
`
`there
`
`today, are there any corrections that you would
`
`wish to make to either of your declarations?
`
`A.
`
`I -- if I recall correctly,
`
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`319, if I recall correctly, where I had some
`
`claim numbers that were incorrect.
`
`I think that
`
`was clarified by the attorney.
`
`I
`
`think that's
`
`the typographical error that you are referring
`
`to.
`
`I noticed a couple of other -- in
`
`was an email about -- I believe it was paragraph
`
`declarations today?
`
`going back and preparing for this deposition and
`
`preparing my declaration,
`
`I noticed a few other
`
`small typographic errors.
`
`JI
`
`think at one point,
`
`for example,
`
`I wrote ETDX referring to the
`
`Eastern District Court of Texas or the EDTX,
`
`little typographic errors like that that -- I
`
`think it’s still clear from the context what
`
`I
`
`was referring to.
`
`But that one,
`
`in terms of the
`
`claim numbers,
`
`I
`
`think that's perhaps the
`
`typographical error that you're referring to and
`
`I did want that corrected,
`
`Or,
`
`So other than the error that you
`
`testified about that was captured by the email
`
`that counsel sent and maybe some ministerial
`
`errors of naming the Court
`
`in Texas, were there
`
`any other corrections you wish to make to your
`
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`A.
`
`No,
`
`just like I said,
`
`small
`
`little typographical errors, but
`
`the context I
`
`think still remains clear. But those are the
`
`only ones that I recall at this time.
`
`Q.
`
`I'd like you to turn to paragraph
`
`21 of your declaration, and again,
`
`for
`
`convenience, we're working out of the
`
`declaration in the 135 IPR.
`
`And if it's helpful, please take
`
`a moment to review that paragraph.
`
`A.
`
`Q.
`
`Okay.
`
`I've read the paragraph.
`
`Sir, are you relying on inherency
`
`to support any of your opinions as to
`
`anticipation?
`
`for a legal --
`
`MR. WICHMAN: Objection. Calls
`
`THE WITNESS:
`
`I understand
`
`"inherency" to be a legal term.
`
`I'm nota
`
`lawyer.
`
`I don't think I can really speak
`
`I understand the question.
`
`definitively to that. As I recall through my
`
`declaration,
`
`I mainly use "obviousness," but
`
`again,
`
`I'm not -- I'm not a lawyer,
`
`so if -- if
`
`there's a specific,
`
`like,
`
`technical
`
`legal
`
`question about notion of inherency,
`
`I'm not sure
`
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`BY MR. DUNHAM:
`
`QO.
`
`Well, sir,
`
`in your declaration,
`
`you say that:
`
`"Each and every limitation must
`
`be satisfied, expressly, or inherently, and the
`
`subject matter provided by a single prior art
`
`reference."
`
`Do you see that language?
`
`I see that.
`
`And my question is:
`
`In your
`
`A.
`
`QO.
`
`analysis, did you find each and every limitation
`
`to be expressly disclosed, or did you rely on
`
`So is the answer, you're not sure
`
`inherency to support your anticipation opinions?
`
`MR. WICHMAN: Objection.
`
`Form.
`
`Calls for a legal conclusion.
`
`THE WITNESS: Again,
`
`these are
`
`legal terms.
`
`I'm not sure exactly what
`
`the
`
`question is. Throughout my -- if there's a
`
`specific part of the declaration, a specific
`
`part of my declaration where I'm drawing a
`
`conclusion that you -- that you're asking about,
`
`that you'd like to ask about, which is whether I
`
`implied that it was satisfied expressly or
`
`inherently,
`
`I'm happy to try to answer that.
`
`BY MR. DUNHAM:
`
`QO.
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`
`
`if you relied on inherency in any of our
`
`opinions on anticipation?
`
`A.
`
`I
`
`-— I don't recall a specific
`
`use of inherency.
`
`I
`
`remember speaking to
`
`obviousness.
`
`Q.
`
`Okay.
`
`If you look further down
`
`the limitation based on inferences that a POSA
`
`would reasonably be expected to draw from the
`
`explicit teachings.
`
`Do you see that reference in
`
`paragraph 21?
`
`A.
`
`Yes.
`
`in that same paragraph, you reference disclosing
`
`(Pertinent portion of the record
`
`What did you mean by that?
`
`What
`
`I meant -- this is a lot of
`
`legalese.
`
`I just want
`
`to make sure I answer
`
`your question to the best of my ability.
`
`What did I mean when I said -- 1
`
`understood the last part -- based on inference
`
`ig.i==
`
`clarification.)
`
`(Court reporter seeks
`
`THE WITNESS: Actually, would you
`
`mind reading back the question to me, please.
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`is read back.)
`
`THE WITNESS:
`
`By that,
`
`I believe
`
`that was in relation to inferences that a person
`
`of ordinary skill in the art would reasonably be
`
`expected to draw from the explicit teachings of
`
`the reference when read in the context provided
`
`by the person of ordinary skill in the art.
`
`(Court reporter seeks
`
`clarification. )
`
`THE WITNESS: As I understand,
`
`the question was, what did I mean by "that,"
`
`where "that" was referring to inferences that a
`
`person of ordinary skill in the art would
`
`reasonably be expected to draw from the explicit
`
`teachings in the reference when read in the
`
`context provided by the person of ordinary skill
`
`in the arts, knowledge, and experience.
`
`in terms of what it
`
`believe a person of ordinary skill in the art at
`
`So as I understand that, it means
`
`that a person of ordinary skill in the art at
`
`the time would read the reference and the
`
`specification and under what I, as an expert,
`
`the time would understand and know at the time
`
`that also what, what
`
`they would -- what
`
`they
`
`would infer from a patent,
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`means, what problems it raises, how it might
`
`combine with other -- other work that was known
`
`at the time. That's -—- that's my understanding
`
`of it.
`
`BY MR. DURHAM:
`
`Q.
`
`Sir,
`
`in paragraph 22 of your
`
`declaration, you describe your understanding of
`
`when a limitation may be inherent, and you refer
`
`to the phrase:
`
`"A claim limitation is inherent
`
`in a prior art reference if that limitation is
`
`necessarily present when practicing the
`
`teachings of the reference," and the paragraph
`
`goes on from there.
`
`Are you relying on an element
`
`being necessarily present, as opposed to
`
`expressly disclosed in a reference to support
`
`any of your opinions as to anticipation?
`
`A,
`
`I don’t recall any instances
`
`where I am relying on it being necessarily
`
`present.
`
`If there's a specific claim or a
`
`specific paragraph from my declaration you'd
`
`that even if a person of ordinary skill in the
`
`like to ask about, I'd be happy to. But off the
`
`top of my head,
`
`I can't think of one,
`
`Q.
`
`Is it your understanding, sir,
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`art would not recognize the presence of a
`
`limitation in a prior art reference,
`
`that
`
`limitation may still be present for purposes of
`
`anticipation?
`
`A.
`
`May I please have that question
`
`read back to me?
`
`Q.
`
`Sure.
`
`Is it your position that
`
`even if a person of ordinary skill in the art
`
`would not recognize the presence of limitation
`
`in a prior art reference,
`
`that limitation may
`
`that's fine.
`
`still be present for purposes of anticipation?
`
`A.
`
`If I'm understanding the question
`
`correctly,
`
`I believe that's what
`
`I say in my
`
`paragraph 22.
`
`I say:
`
`"I understand that the
`
`claim limitation is inherent in a prior art
`
`reference if that limitation is necessarily
`
`present when practicing the teachings of the
`
`reference, regardless of whether a person of
`
`ordinary skill in the art recognizes the
`
`presence of that limitation in the prior art."
`
`So as it pertains to inherency,
`
`that sounds like my paragraph 22.
`
`Q.
`
`If you could take a look at
`
`paragraph 27, sir.
`
`And if you'd like to take a
`
`moment to read it to yourself,
`
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`
`A.
`
`Q.
`
`I've read it.
`
`Sir, would you agree that when
`
`combining references in an obviousness
`
`to change in the proposed combination,
`
`then such
`
`a combination would be improper?
`
`MR. WICHMAN: Objection. Calls
`
`combination, if the function of an element were
`
`there's no change in their respective functions,
`
`for a legal conclusion.
`
`(Court reporter seeks
`
`clarification.)
`
`THE WITNESS:
`
`Can I have that
`
`question read back to me one more time?
`
`BY MR. DUNHAM:
`
`Q.
`
`I'll repeat it for you, sir.
`
`Would you agree that when
`
`combining references in an obviousness
`
`combination,
`
`if the function of an element were
`
`to change in the proposed combination,
`
`then such
`
`a combination would be improper?
`
`MR. WICHMAN: Objection. Calls
`
`for a legal conclusion.
`
`THE WITNESS:
`
`I don't know the
`
`answer to that question, as I'm not a lawyer.
`
`I
`
`do know from my paragraph 27,
`
`that if the -- if
`
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`then the combination would have yielded -—- I'm
`
`sorry,
`
`I'm sorry.
`
`That -- it's my understanding
`
`claimed elements were known in the prior art,
`
`one skilled in the art would have combined the
`
`elements as claimed by the methods with no
`
`change in their respective functions, and that
`
`the combination would have yielded nothing more
`
`than predictable results.
`
`So since we are describing the
`
`same thing,
`
`then yes.
`
`BY MR. DUNHAM:
`
`that a patent claim is invalid as obvious if the
`
`though I
`
`Q.
`
`If you could please -- if you'd
`
`like to read paragraph 28 to yourself,
`
`that's
`
`fine.
`
`I just have a couple of questions about
`
`aes
`
`A.
`
`Q.
`
`Sure. Okay.
`
`I'm mostly going to focus on the
`
`last bullet in paragraph 28, if that helps you
`
`orient yourself, and my first question, sir,
`
`is:
`
`In performing your obviousness analysis, did you
`
`read every word of each reference that you
`
`relied upon?
`
`A.
`
`I believe that I did,
`
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`certainly have not committed them to memory.
`
`O's
`
`Did you consider portions of the
`
`references that taught away from your proposed
`
`combinations?
`
`MR. WICHMAN: Objection. Calls
`
`for a legal conclusion.
`
`THE WITNESS:
`
`I'm not sure I
`
`recall any parts that taught away.
`
`I would have
`
`considered the entire references, but it seems
`
`to be presupposing that there are parts that
`
`taught away the combination, and I'm not
`
`familiar that any part of the prior art did
`
`that.
`
`BY MR. DUNHAM:
`
`Q.
`
`It's your understanding that in
`
`an obviousness analysis,
`
`in order to modify the
`
`prior art reference which combined more than one
`
`prior art reference,
`
`there must be some
`
`in the prior art, but it's also my
`
`teaching, suggestion, or motivation in the prior
`
`art?
`
`MR. WICHMAN: Objection.
`
`THE WITNESS:
`
`It is my
`
`understanding that -- that that is one -- that's
`
`one relevant consideration for motivation,
`
`that
`
`it was taught
`
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`
`understanding that that motivation could have
`
`been clear to a person of ordinary skill
`
`through,
`
`through -- it would have been clear to
`
`a person of ordinary skill.
`
`BY MR. DUNHAM:
`
`Q.
`
`Is it your understanding,
`
`then,
`
`that the motivation to combine can come solely
`
`from outside of the references sought to be
`
`modified or combined?
`
`A.
`
`I'm not sure I quite understand
`
`the question.
`
`The motivation —- I mentioned
`
`it's all within the context of the --
`
`no teaching, suggestion, or motivation inside
`
`motivation can come solely from outside of the
`
`(Court reporter seeks
`
`clarification.)
`
`THE WITNESS:
`
`Can I have the
`
`question read back to me, please?
`
`BY MR. DUNHAM:
`
`Q.
`
`I'll repeat it. My question,
`
`Sir,
`
`is then,
`
`is it your understanding that the
`
`references sought to be modified or combined?
`
`A.
`
`I'm not sure exactly what "solely
`
`from outside" means.
`
`Q.
`
`In other words, sir,
`
`if there's
`
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`
`
`the references themselves that you seek to
`
`combine, can that motivation to combine come
`
`solely from some other source?
`
`A.
`
`I believe -- I believe,
`
`from my
`
`paragraph 28,
`
`that it is possible as,
`
`for
`
`example, a person -- there was a use of a known
`
`technique to improve similar devices, methods,
`
`or products in the same way.
`
`So even if -- my understanding of
`
`that is that in that hypothetical situation
`
`where the patent -—- the prior art -- I'm not
`
`sure I quite understand the guestion still.
`
`Solely from outside of the prior
`
`art or solely from outside of the patent that
`
`you're trying to combine with.
`
`I'm sorry,
`
`I
`
`don't understand your question.
`
`OQ.
`
`You're on to it.
`
`The question
`
`is:
`
`Can the motivation to combine or modify
`
`I'm just repeating
`
`come solely from outside the references that you
`
`actually seek to modify or combine?
`
`MR. WICHMAN: Objection.
`
`BY MR. DUNHAM:
`
`Q.
`
`If you're speaking, sir, we're
`
`not receiving audio.
`
`A.
`
`Yeah, sorry.
`
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`the question back to myself.
`
`From my understanding in my
`
`paragraph 28 -- if it was -- there was a known
`
`technique to improve similar devices, methods,
`
`someone of ordinary skill at the time,
`
`if the
`
`references themselves, as I understand it, if
`
`they didn't expressly articulate or teach it,
`
`if
`
`it was known to someone of ordinary skill,
`
`that
`
`-- I believe that that would have sufficed in
`
`that hypothetical situation.
`
`QO.
`
`Would you please turn to
`
`paragraph 141 of your declaration.
`
`A.
`
`I'm at 141 of the declaration for
`
`the '319 patent.
`
`Q.
`
`Sure.
`
`If you notice in that
`
`Paragraph, you state:
`
`"I was asked to compare
`
`the challenged claims to the disclosures in the
`
`Plamondon RFC 2616, RFC 1122,
`
`IEEE 802.11-2007,
`
`Price and Kozat references."
`
`or products in the same way, if it was known to
`
`from the patents at issue and then try to find
`
`Do you see that?
`
`I do.
`
`In performing your analysis, did
`
`A.
`
`Q.
`
`you look at the claims,
`
`the challenged claims
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`where those particular limitations from the
`
`claims appeared in the various prior art
`
`references?
`
`MR. WICHMAN: Objection.
`
`Form.
`
`THE WITNESS:
`
`I read the
`
`challenged claims,
`
`I compared them to the
`
`disclosures of Plamondon and those other
`
`references you just mentioned,
`
`BY MR. DUNHAM:
`
`Q.
`
`Again,
`
`I'm trying to understand
`
`start with the language of the claim and then
`
`the way you did your analysis, sir, and that's
`
`my question.
`
`So let me ask you another
`
`question,
`
`for example, with respect to paragraph
`
`142,
`
`In 142,
`
`in part, you indicate you
`
`were asked to provide your opinion whether
`
`Plamondon describes subject matter that
`
`satisfies the limitations in each challenged
`
`claim.
`
`A.
`
`Os
`
`Do you see that?
`
`I see that.
`
`And I'm just trying to understand
`
`your analysis.
`
`So to do your analysis, did you
`
`TransPerfect Legal TBOBammeMsechnoloaeseeOO
`212-400-8
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