`
`Transcript of Andrew Sears, Ph.D.
`
`Date: May 19, 2023
`Case: Apple, Inc. -v- CPC Patent Technologies PTY, Ltd. (PTAB)
`
`Planet Depos
`Phone: 888.433.3767
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`
`WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY
`
`CPC EXHIBIT 2015
`Apple Inc. v. CPC Patent Technologies PTY Ltd.
`IPR2022-00602
`
`Page 1 of 90
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`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ________________________
` PATENT TRIAL AND APPEAL BOARD
` ________________________
` APPLE INC.,
` Petitioner,
` v.
` CPC PATENT TECHNOLOGIES PTY LTD.,
` Patent Owner
` __________________________
` Case: IPR2022-00601 & IPR2022-00602
` U.S. Patent Nos. 9,269,208; 9,665,705
` __________________________
` Deposition of ANDREW SEARS, PH.D.
` Conducted Virtually via Zoom
` Friday, May 19, 2023
` 9:00 a.m. CST
`
`Job No.: 488924
`Pages: 1 - 69
`Reported by: THERESA A. VORKAPIC,
` CSR, RMR, CRR, RPR
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
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`2
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` Deposition of Andrew Sears, Ph.D.,
`conducted virtually via Zoom, pursuant to notice
`before Theresa A. Vorkapic, a Certified Shorthand
`Reporter, Registered Merit Reporter, Certified
`Realtime Reporter, Registered Professional
`Reporter and a Notary Public in and for the State
`of Illinois.
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
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`3
`
` A P P E A R A N C E S
`ON BEHALF OF THE PATENT OWNER:
` GEORGE C. SUMMERFIELD, ESQUIRE
` K&L GATES
` 70 West Madison Street
` Suite 3300
` Chicago, Illinois 60602
` 312-807-4376
` george.summerfield@klgates.com
`
`ON BEHALF OF THE PETITIONER:
` JENNIFER C. BAILEY, ESQUIRE
` ERISE IP
` 7015 College Boulevard
` Suite 700
` Overland Park, Kansas 66211
` 913-777-5600
` jennifer.bailey@eriseip.com
`
`ALSO PRESENT:
` Jackson Schueler, Audiovisual Technician,
` Planet Depos
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
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`4
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` C O N T E N T S
`EXAMINATION OF ANDREW SEARS, PH.D. PAGE
` Examination By Mr. Summerfield 5
` E X H I B I T S
` (Retained by counsel.)
`SEARS DEPOSITION EXHIBITS PAGE
`
` Exhibit 2015 Deposition Notice 7
` IPR2022-00601
` Exhibit 2013 Deposition Notice 7
` IPR2022-00602
`
`PREVIOUSLY MARKED EXHIBITS PAGE
`
`Exhibit Sears Declaration in 12
`1003 IPR2022-00602
`Exhibit Sears Supplemental 8
`1090 Declaration in
` IPR2022-00602
`Exhibit US Pub. No. 2004/123113 28
`1004 Mathiassen
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
`
`5
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` P R O C E E D I N G S
` THE REPORTER: Would you raise your right
`hand, please.
` (The witness was duly sworn.)
` ANDREW SEARS, PH.D.,
`called as a witness herein, having been first duly
`sworn, was examined and testified as follows:
` EXAMINATION
`BY MR. SUMMERFIELD:
` Q Hey, Dr. Sears. I wanted to get some
`housekeeping matters out of the way to begin with.
`I think it will simplify things.
` First of all, do you have hard copies of
`anything with you today?
` A I have hard copies of a bunch of things,
`my declaration, petitioner's response, patent
`owner's response, background references for both
`of the patents.
` Q You have your supplemental declarations as
`well?
` A Yes. That's the one I meant actually.
` Q Okay. As we go through this, what I'm
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`6
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`going to do is ask you if you have hard copies of
`certain things. I think that will obviate the
`need for putting them on the screen and you can
`just refer to the hard copies as we go through if
`that's okay with everybody.
` Secondly, we're here obviously to talk
`about your supplemental declaration in a couple of
`different IPRs, but do you agree that they are
`substantially the same?
` A Yes.
` Q Do you agree that your answer for one IPR
`would be the same for the other as concerns your
`supplemental declarations?
` A Yes.
` Q And just to be clear, if there's an
`instance where that wouldn't be the case, can you
`please let me know?
` A Absolutely, yes.
` MR. SUMMERFIELD: So here is what I think
`I'm going to do. Oh, and Jennifer, as the last
`time, I am going to use the IPR exhibit numbers
`for the documents we're talking about today if
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`7
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`that's all right.
` MS. BAILEY: Yes. That works for me.
` MR. SUMMERFIELD: The only other
`housekeeping matter is I'll go ahead and have the
`reporter mark the deposition notices in the two
`cases. I don't know that Dr. Sears needs to take
`a look at them but for numbering purposes, in the
`601 IPR, the deposition notice will be Exhibit
`No. 2013.
` (A certain document was marked Sears
`Deposition Exhibit 2013 for identification, as of
`05/19/2023.)
` MR. SUMMERFIELD: And in the 602 matter
`the deposition notice will be Deposition Exhibit
`No. 2015.
` How does that sound?
` MS. BAILEY: That's fine for me.
` (A certain document was marked Sears
`Deposition Exhibit 2015 for identification, as of
`05/19/2023.)
`BY MR. SUMMERFIELD:
` Q Dr. Sears, let's go ahead and move to your
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
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`8
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`supplemental declarations and the one I'm going to
`use is the one in the 602 proceeding, which is
`Exhibit 1090 in that proceeding.
` Do you have that in front of you?
` A Yes, yes.
` Q I want to talk initially about how this
`was prepared.
` Without revealing communications you may
`have had with counsel, can you outline for us the
`process by which the supplemental declaration was
`prepared.
` A I think it was prepared very much like the
`other declarations where I described it as a
`collaborative process where I drafted pieces,
`counsel may have provided some input, but most
`importantly by the time we had gone through the
`end, I had gone through everything repeatedly,
`recommended and made all the changes that I felt
`necessary for it to reflect my opinions.
` Q Are you able to tell me how the issues for
`your supplemental declaration were identified
`without revealing attorney communications?
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` A I think it's safe to say they are based
`largely on the patent owner's response and some of
`the key points in there were that it was felt that
`some clarification of my perspective was useful.
` Q And, again, without revealing attorney
`communications, can you tell me the process by
`which the points that needed clarification were
`identified?
` A I think it certainly started -- well, from
`my perspective, it started by reading through the
`patent owner's response and just seeing the issues
`that were raised there and then from there I would
`say conversations of what I needed to address.
` Q And that would be conversations with
`counsel?
` A Yes.
` Q Were there any instances where it was
`determined that additional opinions were required
`in the supplement?
` A I'm not sure, just looking compared to
`what --
` Q As compared to clarifying opinions that
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`10
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`were already expressed in your original
`declaration.
` A I think the purpose was really just to
`clarify -- I would say it was to clarify the
`opinions I had when the original declaration was
`drafted and submitted.
` Q Let's go ahead and turn to Paragraph 5 of
`Exhibit 1090 if we can. The first sentence reads:
`"Indicating duress by discretely signalling duress
`was well known to be desirable."
` Do you see that?
` A Yes.
` Q And then you cite to your original
`declaration Paragraph 153, which in turn cites to
`I believe that's supposed to be Zingher,
`Z-i-n-g-h-e-r; is that right?
` A Quite possibly. I would have to go back
`and look to make sure, but that would seem
`reasonable, yes.
` Q Why did you feel this was necessary to
`clarify?
` Just one favor, Dr. Sears, since we can't
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`11
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`see what you're looking at, if you're consulting
`anything in responding to the questions, if you
`can just let us know what that is.
` A Unless I say otherwise, it's my
`supplemental declaration at this point.
` Q Thank you.
` A So as I commented in that paragraph, I
`think this was motivated at least in part due to
`the material that was presented I think both in
`the patent owner's response and in Dr. Easttom's
`opinions where there was the talk about using the
`pushbutton and just thinking through if you have
`any pushbutton in addition to having the
`fingerprint scanner, you've got multiple things
`that people are interacting with. It's going to
`be less discrete as you're interacting with them.
`You're going to be moving through different parts
`of the controls.
` Really he was talking about the ideas that
`were put forward with regard to that pushbutton
`and, again, why that really didn't seem to make as
`much sense as was being argued.
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`12
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` Q Were did you call out Zingher specifically
`in your supplement if you recall?
` A Let me go back and look at my original
`declaration. Let me just figure this out.
` Q Just for the record, that's Exhibit 1003.
` A And, yes, it is Zingher without an h is
`the reference.
` Q I think the h is after the g actually?
` A Yes, z. The h is in the wrong place
`there.
` So in the paragraph of my original
`declaration, I cite to it's quoted from Zingher
`that the present system and method provides for
`discretely identifying a signalling a user's
`distress.
` (Reporter clarification).
` So in Paragraph 153 of my original
`declaration, I talk about Zingher and there's a
`quote there from Zingher that reads: "The present
`system and method provides for discretely
`identifying the signal of the user's distress or
`duress at an ATM."
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` So it was simply an example that
`highlights that being discrete when indicating
`duress that was desirable.
` Q Do you have Zingher in front of which that
`was Exhibit 1037 to the petition?
` A I may. I found it I believe.
`Exhibit 1037.
` Q It should be US Publication
`No. 20004/0015450.
` A Yes, I have it.
` Q From Paragraph 11 of Zingher the document
`defines biometric identifier emergency or BIDE?
` Do you see that?
` A Yes.
` Q If we go to Paragraph 14, Zingher teaches
`that: "Alternatively, a BIDE could be triggered
`by other means touch as tapping a fingerprint
`scanner or pressing hard on the lens of a
`fingerprint scanner."
` Do you see that?
` A Yes.
` Q So focusing on the iteration where the
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`14
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`user is pressing hard on the lens of a fingerprint
`scanner, how does that work?
` A I can't speak to exactly how they were
`envisioning it working from the description there.
` Q How do you understand it to be working
`when the mechanism is pressing hard on the lens of
`a fingerprint scanner?
` A One possibility since there's pressing
`hard, there must be some mechanism for sensing the
`amount of pressure that's being applied.
` Q What kind of mechanism would that be?
` MS. BAILEY: Counsel, your questions are
`getting pretty far astray from the supplemental
`declaration and, I appreciate Zingher was
`mentioned in it, but none of this was in
`Paragraph 153 of his original declaration.
` MR. SUMMERFIELD: I disagree.
` MS. BAILEY: I'm going to allow you to ask
`another question or two to see where you're going
`with this, but if it's apart from his supplemental
`declaration in the citation of Zingher for the
`purpose in the supplemental dec, I'll instruct the
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`15
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`witness not to answer.
` MR. SUMMERFIELD: Okay.
`BY MR. SUMMERFIELD:
` Q Can you answer the question, Dr. Sears.
` How is the fingerprint scanner functioning
`when the measure is of pressure variations?
` A That is a different technology beyond the
`ones that we've been talking about in this patent.
` Q So you don't know?
` A I didn't opine on that in my original
`declaration or my supplemental declaration. So I
`don't feel comfortable to come up with new
`opinions here right now.
` Q Okay. Take a look at Paragraph 50 of
`Zingher if you can, and if you could read that to
`yourself, please.
` A Okay.
` Q You did opine on the undesirability of
`having an pushbutton separate from the fingerprint
`scanner, correct?
` A I opined on the idea that moving your
`finger between things is less discrete than
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`keeping your finger on the fingerprint scanner.
` Q And the "things" in this circumstance were
`a fingerprint sensor and a pushbutton, right?
` A Yes.
` Q But that is precisely the configuration
`that Zingher teaches in Paragraph 50, correct?
` MS. BAILEY: I'm going to instruct the
`witness not to answer the question.
` MR. SUMMERFIELD: On what possible ground?
` MS. BAILEY: Because you are only allowed
`to ask him questions regarding the supplemental
`declaration.
` MR. SUMMERFIELD: Darn right.
` MS. BAILEY: And these questions are
`outside of what he opined upon in the supplemental
`declaration with respect to Zingher referenced.
`You could have asked him these questions during
`his original deposition.
` MR. SUMMERFIELD: Unfortunately, his
`original declaration didn't say anything about the
`lack of desirability of a separate pushbutton.
`That didn't show up until the supplemental
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`17
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`declaration which is why I'm asking them now.
` MS. BAILEY: Counsel, you had the
`opportunity to ask him during his original
`deposition. You knew you were going to make the
`argument in the patent owner response and you
`could have asked him with respect to the Zingher
`reference.
` MR. SUMMERFIELD: So your position is that
`I should have had him supplement his original
`declaration to rebut an argument that we were
`going to make that he hadn't made?
` MS. BAILEY: My position is that you are
`limited to asking him questions with respect to
`his supplemental declaration.
` THE WITNESS: His reference to Zingher was
`with respect to the duress condition has nothing
`to do with the pushbutton argument that you are
`now trying to make.
` MR. SUMMERFIELD: Okay.
`BY MR. SUMMERFIELD:
` Q Dr. Sears, are you going to abide by your
`counsel's instruction?
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` A I think that's what I'm supposed to do.
` MS. BAILEY: Counsel, if you would like to
`discuss this off the record, I'm happy --
` MR. SUMMERFIELD: No, I don't want to
`discuss this off the record. You've made your
`objection. I guess the witness is going to abide
`by it. I'll address it with the board.
` MS. BAILEY: Understood.
`BY MR. SUMMERFIELD:
` Q Speaking of that, Dr. Sears, if we look at
`Paragraph 5 again of Exhibit 1090, there is a
`sentence in there that says: "Requiring a user to
`perform two operations would increase the risk
`that an assailant stop a user from indicating they
`are under duress and provides more opportunity for
`user error."
` Do you see that?
` A Yes.
` Q Can you find where you said anything close
`that in your original report?
` A I can't point to somewhere specific or I
`probably would have cited it, but if you want me
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`to read through my entire original declaration --
` Q If that's what it takes you to do to
`answer the question, then, yes, I want you to read
`through your entire declaration unless you can
`tell me now, yes, it's not in there, then, yeah I
`want you to confirm it's not in there.
` A Okay.
` Q Actually, before we do that, do you
`remember having said that in your original report?
` A I don't remember saying that specific
`thing, but the report is 200-plus pages long.
` Q I understand. Do you remember saying
`anything close to that in your original report?
` A I remember talking about duress.
` Q Specifically, Dr. Sears, do you remember
`saying anything about two operations being
`undesirable for whatever reason?
` A I can't point to a specific paragraph off
`the top of my head, no.
` Q Do you think you need to review your
`entire declaration to answer that question
`definitively?
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` A To answer definitively absolutely, I'd
`have to read the entire thing because I don't
`remember every word I wrote in the 200-plus pages
`in my original declaration.
` Q Great. Let's take a break. How long do
`you think you need?
` MS. BAILEY: Counsel, I'm going to
`interrupt.
` He needs to read it on the record. We
`need to sit here. If you're going to ask him to
`read, he needs to read it on the record.
` MR. SUMMERFIELD: He literally does not
`need to read it on the record. There is no
`requirement that there be dead space for a half an
`hour on the record.
` MS. BAILEY: If you're asking him to
`review something, it needs to be on record.
` MR. SUMMERFIELD: Where is that coming
`from, Jennifer? I don't know any rule that
`requires that.
` MS. BAILEY: Counsel, I don't know any
`rule that allows for what you're suggesting.
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` MR. SUMMERFIELD: Right. That's the
`point. There isn't a rule one way or the other
`which means he can do it.
` MS. BAILEY: If you want him to review
`something, he need to do it on the record. You're
`asking him to review his entire original
`declaration, which he has already noted is
`200-plus pages long. If you are going to insist
`on that, then I am going to assist it's done on
`the record.
` MR. SUMMERFIELD: I'm going to insist that
`he do whatever is necessary to answer the question
`that I posed to him, which is is this opinion in
`Paragraph 5 anywhere in his original report? If
`that means he's got to read the whole thing to say
`it, okay. If he knows that it's not, okay. If
`you want to tell him it's not, okay. But whatever
`needs to happen to have him answer that question
`is going to happen. And if you want the camera to
`point on him for the next 20 minutes, half hour,
`hour, whatever it is, to answer that question, I
`guess that's fine with me. I'm going to turn my
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`22
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`video off, though, if that's okay with you.
` MS. BAILEY: Sure. That's fine. So let's
`keep it on the record and we can note that he is
`reading, and if you want to turn your video off,
`I'm fine with that.
` MR. SUMMERFIELD: That's fine with me.
`BY MR. SUMMERFIELD:
` Q Dr. Sears, just let us know when you're
`done.
` A Okay. I suggest you find something to
`keep yourself busy because it's going to be
`awhile.
` Q No worries there, Dr. Sears. I've got
`plenty of other things to be doing right now.
` A Do I have to keep my audio on and
`stuff?
` Q Not as far as I'm concerned, Dr. Sears,
`but I'll leave that to your counsel.
` MS. BAILEY: No. Dr. Sears, please turn
`your audio off and just remember to turn it off
`when you want to speak again.
` (Witness reviewing document from 9:23 a.m.
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`Transcript of Andrew Sears, Ph.D.
`Conducted on May 19, 2023
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`23
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` to 9:46 a.m. CST)
`BY THE WITNESS:
` A I'm back. I have an answer.
`BY MR. SUMMERFIELD:
` Q Go ahead.
` A Just for clarity, I did not read the
`entire original declaration, but I would say that
`statement is really derived from a number of
`comments in the original declaration that talked
`about the desire -- two key things.
` One was the desire to allow for discrete
`interactions and the other was a desire to
`simplify interactions, both of which were in the
`context of allowing for a single type of
`interaction and interacting with single controls.
`If you look at the statement, it's about
`performing two operations with two different
`controls. Clearly not be used discrete, clearly
`not as simple based on those other references that
`were talked about, the fact that you switch
`between different controls, and the fact that it's
`not as discrete is going to make it more obvious,
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`raise the opportunities for somebody to notice
`that you're doing these interactions and entering
`and I think that's what that sentence was getting
`at.
` Q I understand what the sentence is getting
`at. You're talking about the sentence in your
`supplemental declaration, correct?
` A Yes.
` Q Where is there any discussion in your
`original declaration about a single operation
`being desirable?
` A I would say that is showing up primarily
`around Paragraph 59 through -- at least I would
`say Paragraphs 59 through maybe 64 or, so where it
`talks about Ghassabian -- so I'm not even sure how
`you pronounce it, Ghassabian, talking about
`wanting to -- a key feature is the easy
`manipulation, wanting quickly, easily, most
`importantly, naturally providing functionality and
`then they go on to talk about multiple presses of
`single keys as an example of how you would achieve
`that, and there are other examples in there as
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`well where they're talking about that idea of
`simplifying the interactions, and in some of the
`cases in terms of making them discrete and they
`talk about them in the context of a single --
`single key presses.
` (Reporter clarification).
`BY MR. SUMMERFIELD:
` Q So, Dr. Sears, then at least an example of
`where you opine about the benefits of a single
`operation would be the Ghassabian's multiple
`finger presses?
` A That would be a example.
` Q Anything else that you saw?
` A As I said, there were other, I believe
`Matusis, Exhibit 1032 has some similar
`observations in it.
` Q Just before we leave that, you're talking
`about the reference that you start discussing at
`Paragraph 61?
` A Yes.
` Q And the example of the single operation
`here would be towards the end of that paragraph
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`where we're talking about each fingertip
`corresponds to an upward or downward motion, each
`corresponding with a certain function; is that
`right?
` A It's essentially it. The idea is that
`they're using one small input sensor to capture
`the input.
` Q Where do you describe the Matusis sensor
`in these paragraphs?
` A The very top of Paragraph 46, Matusis
`teaches a system including input sensor,
`arbitrarily small input sensor. They are talking
`one in put sensor there.
` Q I'm sorry. Which paragraph are you
`looking at?
` A The top of -- towards the end of
`Paragraph 61. It's on the top of Page 46 of my
`original declaration.
` Q What do you understand the word
`"arbitrary" to mean there?
` A Arbitrary, I'd have to go back and look
`and I almost wonder what they meant arbitrarily
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`small. I would have to look at the original
`reference.
` Q Any other examples that you saw?
` A I think Hoffman also kind of gets at that
`point. So down in Paragraph 64 where they allow,
`again, where they allow -- again, allow the use of
`one biometric sensor to enter different types of
`input including inputs to alert other people to
`things.
` Q Here in Paragraph 64 you describe Hoffman
`as teaching a user input of an emergency code
`simultaneously with the user's identification
`code; is that right?
` A Yes.
` Q Just to be clear, Dr. Sears, did you see
`anywhere in your report where you said that a
`separate pushbutton is undesirable?
` A I did not see words stating that a
`separate pushbutton would be undesirable. What I
`saw were words that talk about the preference or
`the desirability of discrete interactions, and
`moving between things is certainly less discrete
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`than operating on a single control. Yes.
` Q Let's go back to your supplemental
`declaration at Paragraph 6. And if you could just
`read the first sentence to yourself and let me
`know when you've finished that.
` A Okay.
` Q Do you have Mathiassen with you, by
`chance?
` A Yes.
` Q For the record, that's Exhibit 1004. The
`key fob you mentioned in the first sentence of
`Paragraph 6, that's the key fob depicted in
`Figure 8 of Mathiassen, is that correct?
` A Let me find Mathiassen. I know I have it.
` Can you repeat the question?
` Q The key fob that you reference in this
`first sentence of Paragraph 6 of your supplement,
`that's referring to the key fob depicted in
`Figure 88 of Mathiassen; is that correct?
` A Yes.
` Q Let's turn to Paragraph 192 of Mathiassen
`if we can.
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` Do you see the sentence that reads: "As
`an additional safety feature, the portable or
`embedded device could be equipped with meanings
`for the input of code or commands."?
` A Yes.
` Q Do you understand the portable or imbedded
`device being referred to the automotive
`application described in the paragraphs preceding
`Paragraph 192?
` A Okay. Sorry. Can you repeat the question
`again?
` Q Yes. So the portable or embedded device
`that's referred to as an additional safety
`feature -- strike that.
` The sentence reads: "The additional
`safety feature via portable or embedded device
`could be equipped with means for the input of code
`or commands."
` Do you understand the portable or embedded
`device referenced there to be for the automotive
`application described in the paragraph preceding
`192?
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` A So your question is really about whether
`those two are exclusively in the context of the
`automotive application?
` Q Correct.
` A Okay. In Paragraph 192, we're talking
`exclusively about the automotive application?
` Q That's correct.
` A Based on my quick review of things, I
`don't believe that would necessarily be the case.
`I think they were talking -- they talk about a
`number of different examples of how this invention
`could be implemented. They talk about the car one
`more extensively, but they talk about other ways
`they could be used, and I would think that that
`paragraph was referring to if it's embedded in I
`think there was a safe instance where there wasn't
`remote control, but the embedded part could have
`this built into it where in the car application
`could be in the portable control.
` So I think the ideas would apply to all
`the different examples that they were talking
`about.
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` Q But it would at least apply to the
`automotive example as well, right?
` A I believe so.
` MS. BAILEY: Counsel, when you get to a
`stopping point, may we take a break, please.
` MR. SUMMERFIELD: Just a few more
`questions on this and then we can.
`BY MR. SUMMERFIELD:
` Q The first line of 192 again references an
`additional safety feature.
` Additional to what?
` MS. BAILEY: Counsel, your questions are
`again getting outside of the supplemental
`declaration. I don't see anything in Paragraph 6
`that you just mentioned of the supplemental dec
`that relates to the safety feature described in
`Paragraph 192.
` MR. SUMMERFIELD: I'm getting there.
`BY MR. SUMMERFIELD:
` Q Dr. Sears, additional to what?
` A I guess I'll ask can you help me
`understand where in Paragraph 6, what we're
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`referencing, what we're dealing with.
` Q Do you need to know that to answer that
`question?
` A My understand is I'm being deposed on my
`supplemental declaration.
` Q You are?
` A So it would be very useful to know what
`part of my supplemental declaration I'm being
`asked about.
` Q Why? Why would it be useful for you to
`answer that question other than counsel just told
`you it was?
` A I'm struggling to find a way to describe
`it. It's hard to answer a question about
`something you don't know what you're being asked
`about.
` Q I'm asking you what do you understand --
` A If your questions are supposed t
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