UNITED STATES PATENT AND TRADEMARK OFFICE
`
` __________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` __________________
`
`Page 1
`
` GOOGLE, LLC,
`
` Petitioner,
`
` vs.
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` JAWBONE INNOVATIONS, LLC,
`
` Patent Owner.
`
` --------------------
`
` Case IPR 2022-01059
`
` U.S. Patent No. 10,779,080
`
` --------------------
`
` DEPOSITION OF JEFFREY S. VIPPERMAN, Ph.D.
`
` Washington, D.C.
`
` Monday, March 6, 2023 - 10:30 a.m.
`
`Reported by:
`
`Laurie Donovan, RPR, CRR, CSR
`
`Job No.: 6693
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Jawbone's Exhibit No. 2015, IPR2022-01124
`Page 001
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`
`
` __________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` __________________
`
`Page 1
`
` GOOGLE, LLC,
`
` Petitioner,
`
` vs.
`
` JAWBONE INNOVATIONS, LLC,
`
` Patent Owner.
`
` --------------------
`
` Case IPR 2022-01059
`
` U.S. Patent No. 10,779,080
`
` --------------------
`
` DEPOSITION OF JEFFREY S. VIPPERMAN, Ph.D.
`
` Washington, D.C.
`
` Monday, March 6, 2023 - 10:30 a.m.
`
`Reported by:
`
`Laurie Donovan, RPR, CRR, CSR
`
`Job No.: 6693
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Jawbone's Exhibit No. 2015, IPR2022-01124
`Page 001
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`Page 2
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` Deposition of
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` Jeffrey S. Vipperman, Ph.D.
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`Held at the offices of:
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` Finnegan, Henderson, Farabow,
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` Garret & Dunner, LLP
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` 1875 Explorer Street
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` Suite 800
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` Reston, Virginia 20190
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` (404)653-6574
`
` Taken pursuant to notice, before
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` Laurie Donovan, Registered Professional
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` Reporter, Certified Realtime Reporter, and
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` notary public in and for the Commonwealth
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` of Virginia.
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Jawbone's Exhibit No. 2015, IPR2022-01124
`Page 002
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`Page 3
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` A P P E A R A N C E S
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`ON BEHALF OF PETITIONER:
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` Finnegan, Henderson, Farabow,
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` Garret & Dunner, LLP
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` 271 17th Street, NW
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` Suite 1400
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` Atlanta, Georgia 30363
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` (404)653-6400
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` By: Robert High, Esq.
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` robert.high@finnegan.com
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` Daniel C. Cooley, Esq. (DC office)
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` daniel.cooley@finnegan.com
`
`ON BEHALF OF PATENT OWNER:
`
` Fabricant, LLP
`
` 411 Theodore Fremd Avenue
`
` Suite 206 South
`
` Rye, New York 10580
`
` (212)257-5797
`
` By: Peter Lambrianakos, Esq.
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` plambrianakos@fabricantllp.com
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`ALSO PRESENT:
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` Bowen Li, with Finnegan
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`Jawbone's Exhibit No. 2015, IPR2022-01124
`Page 003
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` EXAMINATION INDEX
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` PAGE
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`EXAMINATION BY MR. LAMBRIANAKOS . . . . . . . 5
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` E X H I B I T S
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`--------------------------------------------------
`
` P R O C E E D I N G S
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` 10:30 a.m.
`
`--------------------------------------------------
`
`Whereupon,
`
` JEFFREY S. VIPPERMAN, Ph.D.,
`
` having been first duly sworn, testified
`
` upon his oath as follows:
`
` EXAMINATION BY COUNSEL FOR PATENT OWNER
`
`BY MR. LAMBRIANAKOS:
`
` Q Good morning.
`
` A Good morning.
`
` Q Would you please state your name for the
`
`record?
`
` A Sure. It's Jeffrey S. Vipperman.
`
` Q You understand we're here today with
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`respect to the deposition for IPR 2022-01059?
`
` A That's correct.
`
` Q And that proceeding relates to U.S.
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`Patent Number 10,779,080?
`
` A That's correct.
`
` Q In that proceeding, Petitioner asserted
`
`grounds of invalidity under obviousness, right?
`
` A That's correct.
`
` Q You submitted a declaration in this
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`212-400-8845 - Depo@TransPerfect.com
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`Jawbone's Exhibit No. 2015, IPR2022-01124
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`matter?
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` A Yes, I did.
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` Q Are all your obviousness opinions
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`included in your declaration?
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` MR. HIGH: Objection; form.
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` THE WITNESS: I'm not offering any
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` new obviousness grounds today.
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`BY MR. LAMBRIANAKOS:
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` Q Will you be offering any new evidence to
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`support your obviousness grounds today?
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` MR. HIGH: Objection; form.
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` THE WITNESS: So I'm here to answer
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` questions for you. I may not recite my deck
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` word for word. I'm here to answer questions.
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`BY MR. LAMBRIANAKOS:
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` Q Is it your intention, in answering
`
`questions, to provide new evidence?
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` MR. HIGH: Objection; form.
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` THE WITNESS: What do you mean by
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` "new evidence"?
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`BY MR. LAMBRIANAKOS:
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` Q Evidence which is not already in your
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`declaration.
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` A I mean I plan to provide clarifications
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`for what's already in the declaration.
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`Jawbone's Exhibit No. 2015, IPR2022-01124
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` Q So you're going to clarify the evidence
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`in your declaration?
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` MR. HIGH: Objection; form.
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` THE WITNESS: If, if you request me
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` to do so.
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`BY MR. LAMBRIANAKOS:
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` Q And in providing clarification, would
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`that include also providing new evidence which is
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`not already in your declaration?
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` MR. HIGH: Objection; form.
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` THE WITNESS: Well, I'm here under
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` oath to answer questions about my
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` declaration, and that may include
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` clarification of what's there.
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`BY MR. LAMBRIANAKOS:
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` Q I'm just asking you if clarification, in
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`your mind, includes offering new evidence.
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` MR. HIGH: Objection; form.
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` THE WITNESS: I mean I don't know
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` how else to answer that. I'm here to talk
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` about the evidence that's already in my
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` declaration.
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`BY MR. LAMBRIANAKOS:
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` Q Have you been deposed before?
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` A Yes.
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`TransPerfect Legal Solutions
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`Jawbone's Exhibit No. 2015, IPR2022-01124
`Page 007
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` Q How many times, approximately?
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` A Maybe 15 or so.
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` Q Are you familiar with the ground rules
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`of a deposition?
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` A I think so.
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` Q Let's just go through a couple of them.
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` I'm here to ask questions, and you're
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`here to answer them. If I ask you a question that
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`you don't understand, please let me know. If you
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`answer a question, I'll assume that you understood
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`it.
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` Is that okay?
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` A That's okay.
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` Q If your attorney objects to any
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`question, you're still to answer it unless he
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`instructs you not to answer and you take his
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`instruction.
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` Do you understand that?
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` A Indeed.
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` Q If you need a break at any point, let me
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`know, and we'll end the -- or we will wait until
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`we've completed the line of questioning, and then
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`we'll take that break.
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` Does that work?
`
` A Mm-hmm, yes.
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`TransPerfect Legal Solutions
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`Jawbone's Exhibit No. 2015, IPR2022-01124
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` Q Are you under medication that would
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`prevent you from providing full and truthful
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`answers?
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` A No.
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` Q Is there any reason why you can't
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`provide full and truthful answers today?
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` A No.
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` Q When were you retained in connection
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`with this IPR?
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` A I believe it was March of 2022. I
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`believe. I'm not completely sure.
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` Q Who retained you?
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` A I'm retained directly by Google.
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` Q Were you also retained in connection
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`with the underlying patent infringement case?
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` MR. HIGH: Objection. I think that
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` goes to privilege, so I'll instruct the
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` witness not to answer.
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` MR. LAMBRIANAKOS: The fact of his
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` retention is privileged?
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` MR. HIGH: I think that -- yeah, I
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` think that goes to privilege. I think you're
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` asking him about what's going on with respect
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` to the district court litigation, so . . .
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` MR. LAMBRIANAKOS: I disagree --
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` MR. HIGH: Okay.
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` MR. LAMBRIANAKOS: -- but I don't
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` think it's important enough to fight about
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` it.
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` MR. HIGH: Okay.
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`BY MR. LAMBRIANAKOS:
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` Q Did you conduct any prior art searches
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`against the '080 patent in connection with your
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`work on this IPR?
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` MR. HIGH: Objection; privilege.
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` Instruct the witness not to answer.
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` MR. LAMBRIANAKOS: The fact of his
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` conducting prior art searches is relevant to
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` the fact that he's provided opinions on, on
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` validity, and it's not privileged, because
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` he's providing those opinions, and so his
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` efforts in connection with that are
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` discoverable, and in any event, the fact of
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` his conducting a prior art search is not a
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` communication, which is what's covered by the
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` privilege.
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` MR. HIGH: I disagree. I think it
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` goes to, you know, something that he's
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` potentially been instructed to do by an
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` attorney. I think he's here to answer
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`Jawbone's Exhibit No. 2015, IPR2022-01124
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` questions about his declaration. If you want
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` to ask him opinions about what he's placed in
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` his declaration, that's one thing, but if you
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` want to ask him about underlying prior art
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` searches, then that's privileged, and I'm
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` going to instruct him not to answer.
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` MR. LAMBRIANAKOS: I didn't ask
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` about who asked him or if he was asked. I
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` asked him what he did, and without asking
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` about who asked him to do it, it's not
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` privileged. It's just a question about his
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` activities in connection with providing
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` opinions here.
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` He's a testifying expert, so I'm
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` entitled to know what he did to come to his
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` opinions. That is not privileged.
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` MR. HIGH: I disagree.
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` MR. LAMBRIANAKOS: Well, we'll come
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` back to that later, and maybe we'll call the
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` board with all the questions at the same
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` time.
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`BY MR. LAMBRIANAKOS:
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` Q How did you decide to include these
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`references in your declaration?
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` MR. HIGH: I'm going to say that
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` that's also privileged. Objection;
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` privilege. Instruct the witness not to
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` answer.
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` MR. LAMBRIANAKOS: He didn't say
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` that an attorney told him to. It's not
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` privileged. I'm asking the expert how he did
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` his analysis. I'm entitled to know that.
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` MR. HIGH: If you want to ask him
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` about his analysis, that's one thing, but
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` you're asking underlying decisions that were
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` made.
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` MR. LAMBRIANAKOS: I'm asking the
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` expert about his decisions with respect to
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` the references that he's opining on. I'm
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` entitled to know that.
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` MR. HIGH: Yeah, I'm going to
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` maintain my objection.
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`BY MR. LAMBRIANAKOS:
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` Q Are you the person who chose the
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`combinations that are in your declaration? That's
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`a yes-or-no question.
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` A It was a collaborative effort. We
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`worked together. We had several meetings where we
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`worked together to put together the grounds.
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` Q Who is "we"?
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` A Me and my counsel.
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` Q You have your declaration in front of
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`you?
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` A I do.
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` Q Do you see in paragraph 23, beginning at
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`page 10, you identify the qualifications that you
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`believe a person of ordinary skill in the art
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`would have had at the time of the filing of the
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`'080 patent?
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` Do you see that?
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` A Yes I see it.
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` Q And it's your opinion that you were at
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`least a person of ordinary skill in the art as of
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`June 13, 2007.
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` Do you see that?
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` A Yes, I see that.
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` Q Does your level of skill in the art
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`exceed that of a person of ordinary skill?
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` A To be honest, probably, but I did my
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`analysis through the lens of this imaginary person
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`of ordinary skill in the art.
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` Q So --
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` A "Hypothetical" would be a better word.
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` Q And why do you think your qualifications
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`exceed that of a person of ordinary skill?
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` A I don't know that they do. I've never
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`been told or evaluated as to that, but I do have
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`more education and more experience than what's
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`listed here.
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` Q So you don't know whether your
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`qualifications exceed that of a person of ordinary
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`skill; is that your testimony?
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` MR. HIGH: Objection; form.
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` THE WITNESS: I would assume I
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` exceed the level of ordinary skill in the
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` art, but again I did my analysis through the
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` lens of the POSITA that I defined here.
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`BY MR. LAMBRIANAKOS:
`
` Q So you have a master's degree; is that
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`right?
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` A I do.
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` Q And you have a doctorate?
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` A I do.
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` Q And a person of ordinary skill would
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`have a minimum of a bachelor's degree in certain
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`fields, right?
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` A That's correct.
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` Q As well as certain industry experience,
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`right?
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` A That's right.
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` Q So how did you create this lens that you
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`used in order to ensure that you were not applying
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`a level of ordinary skill that exceeded that of a
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`POSITA, as you have defined it?
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` MR. HIGH: Objection; form.
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` THE WITNESS: So as I mention in
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` paragraph 22, I looked at "the type of
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` problems encountered in the art; the prior
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` art solutions to those problems; rapidity
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` with which innovations are made;
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` sophistication of the technology; and the
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` educational level of active workers in the
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` field."
`
` I also looked at the legal
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` standards and applied those, and I used my
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` experience as a professor, and even a
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` consultant, to apply this definition to the
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` obviousness combination in considering the
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` prior art.
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`BY MR. LAMBRIANAKOS:
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` Q But how specifically did you make sure
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`that when you were applying that standard, that
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`you didn't perhaps unwittingly apply your
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`expertise which exceeds that of the person of
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`ordinary skill?
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` MR. HIGH: Objection; form.
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` THE WITNESS: I haven't always
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` exceeded a person of ordinary skill in the
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` art, and so I would reflect back to the
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` period when I was just a POSITA.
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`BY MR. LAMBRIANAKOS:
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` Q During what period of time were you
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`"just a POSITA"?
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` A I would say probably at the time I was
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`getting my master's degree and working as a
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`research associate, because as I mention -- as I
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`mention, "Work experience can substitute for
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`formal education, and additional formal education
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`can substitute for work experience."
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` Q So you got your Ph.D. about ten years
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`before the effective U.S. filing date of the '080
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`patent; is that right?
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` A That's correct.
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` Q So how did you put yourself in the place
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`of someone who didn't necessarily have a master's
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`or a Ph.D. as of June 13, 2007?
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` MR. HIGH: Objection; form.
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` THE WITNESS: Well, again, I was
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` once a POSITA, and I know what the knowledge
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` base of the POSITA is, and so I applied that
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` and legal standards to the obviousness
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` analyses.
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`BY MR. LAMBRIANAKOS:
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` Q In your declaration you use a simulation
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`as part of the evidence you present; isn't that
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`right?
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` A That's correct.
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` Q Why did you decide to conduct a
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`simulation?
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` A Well, I wanted to determine the linear
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`responses of the Akeda McCowan Kanamori system.
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` Q Why did you want to do that?
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` A Because I needed to know what the
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`performance of that system was so they could be
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`compared to the '080.
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` Q When you say "performance," are you
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`referring to the linear responses of the
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`microphones in the combination?
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` A I believe that's all I simulated was
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`linear responses.
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` Q And you wanted to be able to compare the
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`linear responses of those microphones with the
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`linear responses of the microphones disclosed in
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`the '080 patent?
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` MR. HIGH: Objection; form.
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` THE WITNESS: I needed to -- well,
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` there's no way for me to determine whether
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` the Akeda McCowan Kanamori reference is
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` obvious over the '080 without comparing the
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` linear responses between the two.
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`BY MR. LAMBRIANAKOS:
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` Q As part of your analysis, you reviewed
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`the '080 patent, right?
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` A That's correct.
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` Q Does the '080 patent disclose the
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`structure of the circuits that it uses?
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` A What do you mean by "circuits"?
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` Q I'm just referring to the apparatus that
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`is used in the '080 patent and which is claimed.
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` A And the '080, for example, presents a
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`general structure in Figure 3 for creating a
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`virtual microphone from omnidirectional
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`microphones.
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` Q Is Figure 3 a circuit diagram?
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` A It's more of a schematic than a circuit
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`diagram.
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` Q What in the specification of the '080
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`patent did you look at, if anything, to understand
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`the structure of the system that's claimed?
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` A I referenced the '080 throughout my
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`declaration, so the '080 patent has equations in
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`the specification, for example. You also have
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`linear response plots. You have -- we have
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`photographs. We have this general schematic that
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`I was talking about earlier. So quite a bit, and
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`I read the claims, of course.
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` Q Is the information that you just cited
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`sufficient for a person of ordinary skill to build
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`the claimed system?
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` MR. HIGH: Objection; form, scope.
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` THE WITNESS: Well, in paragraph 25
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` of my declaration, I talk about how I was
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` told that the proper obviousness analysis
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` requires, "(a), determining the scope and
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` content of the prior art; (b), ascertaining
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` the differences between the prior art and the
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` claims at issue; (c), resolving the level of
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` ordinary skill in the pertinent art; and (d),
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` concerning evidence of secondary indicia of
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` non-obviousness (if available)."
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`BY MR. LAMBRIANAKOS:
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` Q The question was whether the information
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`that you cited in your previous answer is
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`sufficient for a person of ordinary skill in the
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`art to build the claimed system.
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` Yes or no, sir?
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` MR. HIGH: Same objections.
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` THE WITNESS: There is an
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` assumption that patents generally teach how
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` to create the invention.
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`BY MR. LAMBRIANAKOS:
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` Q And in your opinion, does that
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`assumption hold with respect to this patent, based
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`on its disclosure?
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` MR. HIGH: Objection; form, scope.
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` THE WITNESS: If you're asking if I
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` understand the claims, yes, I do.
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`BY MR. LAMBRIANAKOS:
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` Q What I'm asking you is whether the
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`specification provides sufficient information for
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`you to understand how one would structure a system
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`that meets the claims.
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` MR. HIGH: Objection; form, scope.
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` THE WITNESS: The '080 patent does
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` present some embodiments that can meet the
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` claim language.
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`BY MR. LAMBRIANAKOS:
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` Q Can you point to an embodiment in the
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`spec of the '080 patent that you believe meets the
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`claim language?
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` A So columns 9 and 10 describe an
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`embodiment that I believe meets the claim
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`language.
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` Q Just 9 or 10, or does the description of
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`the embodiment you were pointing to continue
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`thereafter?
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` MR. HIGH: Objection; scope.
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` THE WITNESS: Well, I mean I
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` considered the entire specification in my
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` analysis, so just sitting here today, I
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` remember -- yes, I mean it does continue into
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` columns 11 and 12. It's -- sitting here
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` today, it's kind of hard to pull out exact
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` sections of specification other than what
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` I've referenced in my declaration.
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`BY MR. LAMBRIANAKOS:
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` Q Did you familiarize yourself with the
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`specification of the '080 patent and its claims
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`before you performed your obviousness analysis?
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` A I believe the first reference I read was
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`the '080 patent.
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` Q So you read and studied the '080 patent
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`before you analyzed obviousness or performed any
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`simulations, right?
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` A I didn't do the deep dive. I just did a
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`cursory reading through it. I had to understand
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`the specification and the claims in order to
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`provide my obviousness analysis.
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` Q And the purpose of your obviousness
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`analysis was to find a combination of prior art
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`that together you believe would show that the
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`claims are invalid; is that right?
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` MR. HIGH: Objection; form.
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` THE WITNESS: Well, I laid out a
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` logical path for the obviousness analysis,
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` starting with Akeda, which provides -- so
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` Akeda is a very similar system to the '080
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` that a POSITA would be aware of, and so it
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` provides the virtual microphones and the
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` adaptive voice reduction application.
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` And then a POSITA would look to
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` McCowan to figure out how to handle near
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` field sources, such as at the headset, and
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` then a POSITA would look to Kanamori to
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` figure out how to prevent leakage of the
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` speech signal into the noise reference
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` signal.
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`BY MR. LAMBRIANAKOS:
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` Q I object to that answer as not
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`responsive. The question, sir, was about the
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`purpose of your analysis, not how you did it.
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` Was the purpose of your analysis to find
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`a combination of prior art that together you
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`believe would show that the claims are invalid?
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` MR. HIGH: Objection; form.
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` THE WITNESS: Well, I just
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` explained how I approached it in lieu of what
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` you're suggesting.
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`BY MR. LAMBRIANAKOS:
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` Q I'm not suggesting anything. I'm asking
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`you about the purpose, not, not your procedure.
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` Was the purpose of your analysis to find
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`a combination of prior art that you believe would
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`show that the claims were obvious?
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` MR. HIGH: Same objection.
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` THE WITNESS: I mean I'm not sure
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` how else to answer that.
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`BY MR. LAMBRIANAKOS:
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` Q Do you know what the purpose of your
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`obviousness analysis was?
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` A It was to look to the art and figure out
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`how to improve noise reduction systems.
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` Q So it's your testimony that the purpose
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`of your conducting your obviousness analysis was
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`just to come up with some improvement of noise
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`reduction systems?
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` MR. HIGH: Objection; form,
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` mischaracterizes.
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` THE WITNESS: So I looked to the
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` '080 patent to see its teachings, which I had
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` to do in order to realize that my obviousness
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` analysis produced similar results.
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`BY MR. LAMBRIANAKOS:
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` Q What do you mean when you say in order
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`to realize that your "obviousness analysis
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`produced similar results"?
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` A To -- well, to -- well, I mean that I
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`was, looked at the prior art and the obviousness
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`analysis through the eyes of a POSITA, and
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`compared that to teachings in the '080.
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` Q And the purpose of your looking at the
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`prior art was what; to help formulate an
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`invalidity argument against the '080 patent?
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` A I can't perform an obviousness analysis
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`without understanding the '080 patent.
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` Q And so you reviewed the prior art with
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`the purpose of formulating an invalidity argument
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`against the '080 patent?
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` MR. HIGH: Objection. Objection;
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` form.
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` THE WITNESS: Could you please
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` repeat the question?
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`BY MR. LAMBRIANAKOS:
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` Q Did you review the prior art with the
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`purpose of formulating invalidity arguments
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`against the '080 patent?
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` MR. HIGH: Same objection.
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` THE WITNESS: I only provided -- so
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` again, I, I think I answered this, but I
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` reviewed the '080 patent and its teachings,
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` and I have to understand that patent in order
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` to perform an obviousness analysis that's
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` created by looking at teachings of the prior
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` art and evaluating them as a POSITA would.
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`BY MR. LAMBRIANAKOS:
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` Q Would you turn to Exhibit 1006, which is
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`the Akeda records.
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` A Okay.
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` Q Would you turn to page 8 of the
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`document.
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` Do you see Figure 3 there?
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` A I do.
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` Q Is this the frequency response of the
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`main virtual microphone?
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` MR. HIGH: Objection; form.
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`Page 26
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` repeat the question?
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`BY MR. LAMBRIANAKOS:
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` Q Does Figure 3 show the frequency
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`response of the main virtual microphone?
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` MR. HIGH: Objection; form.
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` THE WITNESS: Figure 3 displays
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` what the '080 refers to as a linear response.
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`BY MR. LAMBRIANAKOS:
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` Q Does this figure show that there are
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`angles that would null out the incoming noise
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`signal?
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` A To me, yes.
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` Q Approximately what angles would you say
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`have nulls?
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` A Looks like approximately 135 and
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`225 degrees.
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` Q Now, turning to Figure 5, is this the --
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`does this figure show the linear response of the
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`reference microphone?
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` A Yes, from paragraph 24 it says, "The
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`reference microphone illustrated in Figure 4 has
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`directional characteristics with respect to the
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`back surface side, as illustrated in Figure 5."
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` Q Is there a null shown in Figure 5 at
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`135 degrees?
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` A No.
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` Q Are there nulls shown in Figure 5 at
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`225 degrees?
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` A No.
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` Q If noise were coming at some angle
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`between 90 degrees and 270 degrees, do the mics
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`shown in Figure 3 and Figure 5 have similar linear
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`responses?
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` MR. HIGH: Objection; form, scope.
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` THE WITNESS: I would consider
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` those dissimilar.
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`BY MR. LAMBRIANAKOS:
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` Q What about if noise were coming in from
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`an angle between 270 degrees and 90 degrees; do
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`the mics shown in Figures 3 and 5 have similar
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`linear responses?
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` A Between 90 and 270?
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` Q I was going counter-clockwise between
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`270 and 90.
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` A Counter-clockwise. Well, Figure 5 has a
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`null at zero degrees, so I would consider those
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`dissimilar responses.
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` Q They're dissimilar because Figure 5
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`shows a null at zero degrees, but Figure 3 does
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`not?
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` MR. HIGH: Objection; form.
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` THE WITNESS: They're dissimilar
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` for that reason. Plus, we're taught in the
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` patent that they are dissimilar.
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`BY MR. LAMBRIANAKOS:
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` Q Does Akeda explicitly disclose that a
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`null in the direction of a target sound source is
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`only effective for noise sources at a given
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`distance?
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` A As I recall, Akeda deals with far field,
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`far field sources, and McCowan teaches how to deal
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`with near field sources.
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` Q I object to that answer as
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`nonresponsive.
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` Does Akeda explicitly disclose that a
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`null in the direction of a target sound source is
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`only effective for noise sources at a given
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`distance?
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` MR. HIGH: Objection; form.
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` THE WITNESS: As I say, Akeda deals
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` with far field sound, which has a, you know,
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` a distance associated with it, and McCowan,
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` it deals with near field sound.
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`BY MR. LAMBRIANAKOS:
`
` Q I object to that answer as
`
`nonresponsive. I'm asking you about Akeda's
`
`explicit disclosure, not McCowan or anything else.
`
`Akeda.
`
` Does Akeda say anywhere in the patent
`
`that, that a null in the direction of a target
`
`sound source is only effective at nulling noise
`
`sources at a given distance?
`
` MR. HIGH: Objection; form.
`
` THE WITNESS: Is there a particular
`
` section you're r
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