Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 1 of 16
`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 1 of 16
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`EXHIBIT 25
`EXHIBIT 25
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 1 of 16
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`EXHIBIT 25
`EXHIBIT 25
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`
` UNITED STATES DISTRICT COURT
` FOR THE WESTERN DISTRICT OF TEXAS
` WACO DIVISION
`---------------------------------X
`AIRE TECHNOLOGY LTD., :
` Plaintiff, :
` v. :Civil Action No:
` :6:21-cv-955-ADA
`SAMSUNG ELECTRONICS CO., LTD. :
`and SAMSUNG ELECTRONICS AMERICA, :
`INC., :
` Defendants. :
`---------------------------------X
`AIRE TECHNOLOGY LTD., :
` Plaintiff, :
` v. :Civil Action No:
` :6:21-CV-1101
`APPLE INC. :
` Defendant. :
`---------------------------------X
`AIRE TECHNOLOGY LTD., :
` Plaintiff :
` v. :Civil Action No:
` :6:21-cv-1104
`GOOGLE LLC, :
` Defendant. :
`---------------------------------X
` DEPOSITION OF MICHAEL C. BROGIOLI, Ph.D.
` APPEARING REMOTELY FROM AUSTIN, TEXAS
` WEDNESDAY, JUNE 29, 2022
` 12:05 P.M. EST
`
`Job No.: 453528
`Pages 1 - 86
`Reported by: Adrienne Mignano, RPR
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 3 of 16
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`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`2
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` Deposition of MICHAEL BROGIOLI, Ph.D., held
`via Zoom videoconferencing pursuant to Notice, before
`Adrienne M. Mignano, a Notary Public and Registered
`Professional Reporter in and for the State of New
`York.
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 4 of 16
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`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`3
`
` A P P E A R A N C E S
`
`ON BEHALF OF PLAINTIFF:
` SETH HASENOUR, ESQUIRE
` DREW HOLLANDER, ESQUIRE
` RUSS AUGUST & KABAT
` 12424 Wilshire Boulevard
` 12th Floor
` Los Angeles, California 90025
` 310.826.7474
`
`ON BEHALF OF DEFENDANT - APPLE INC.
` ANDREW RADSCH, ESQUIRE
` TAYLOR LAWRENCE, ESQUIRE
` ROPES & GRAY
` Three Embarcadero Center
` San Francisco, California 94111
` 415.315.6300
`
`ALSO PRESENT:
` George Larkins - Videographer
` Alan Ross - Remote Technician
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 5 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`4
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` C O N T E N T S
`
`EXAMINATION OF MICHAEL BROGIOLI, Ph.D. PAGE
` By Mr. Radsch 7
`
` E X H I B I T S
` (Attached to the transcript)
`Exhibit 1 Expert Declaration of Michael C. 1
` Brogioli, Ph.D.
`Exhibit 2 U.S. Patent 8,174,360 12
`Exhibit 3 Dictionary page from The Free 35
` Dictionary website
`Exhibit 4 Exhibit 5 to defendant's brief, 65
` Bates Nos. AIRE-SAMS-00000274-283
` and 407-413
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 6 of 16
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`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`39
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` A I don't know. I haven't gone through
`this list.
` Q Are any of these listed instruments
`used to monitor the frequency or impedance of a
`transmission oscillator?
` A No, I don't know that I have seen
`this list before.
` Q This list isn't a document that you
`cited in your declaration, right?
` A I believe it's from the same website.
`I guess I'm not -- just kind of visually seeing
`the document, I'm a little hazy on that. But if
`that's the case, then it would have been cited
`in there, sure.
` Q And feel free to review it now, but
`just to answer, to circle back to my question,
`it is -- are any of these listed instruments
`used for monitoring a -- the frequency or
`impedance of a transmission oscillator?
` A Okay. Let me just take a quick look
`for you.
` (Witness reviewing document.)
` I don't know -- I don't see that, at
`least verbatim, this list mentions, quote,
`transmission oscillator. I also don't recall
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 7 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`40
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`going through an exercise to see if any one of
`these example definitions is or is not doing
`that or could be doing that or something like
`that.
` Q Okay. We can put that exhibit aside.
` Going back to the patent claim with
`respect to the claimed measuring device, just so
`I understand, it's your opinion that --
` MR. RADSCH: Or strike that.
` Q What is your opinion with respect to
`what a "measuring device" refers to in the
`claim?
` A I mean, I would say it's just as this
`claim element is talking about, at least here,
`and how I describe it throughout my declaration,
`that it's this device that's got the ability to
`monitor properties of this transmission
`oscillator component, and it's got various
`inputs and outputs, and, as it says here,
`outputs a control signal when it detects certain
`changes in the property it's monitoring. The
`patent talks about a couple cases of that.
` And the patent talks about that it
`can be done in hardware or it can be done in
`software to implement the purpose or -- you
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 8 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`41
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`know, you can kind of go back and forth between
`the two as what this measuring device is doing
`and contextually, you know, what the structure
`is and how it fits in with the other components.
` Q You mentioned that the measuring
`device has various inputs. How many inputs does
`it have?
` A So I would say you can see at
`least -- I'll scroll back up for you here. I
`don't know that the patent firmly says it has to
`be 17 inputs and not 18 or something like that.
`But as we look at, you know, for example,
`figure 1 here -- I'm making a mess of scrolling
`around for you, I'm sorry -- the measuring
`device, you know, 14 is in communication with
`block 13 and 15. If you continue down to
`figure 2, there is a measuring device here, 14,
`24, communication element interfaces. There are
`some other dotted lines with things like
`actuators, measuring units, et cetera, switches.
` So there's a number of different, I
`would say, inputs -- or input and outputs that
`are shown here.
` Q Is it your opinion that the claimed
`measuring device is limited by this described
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 9 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`42
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`structure at 14, 24 in figure 2?
` MR. HASENOUR: Objection. Vague.
` A So you're -- perhaps I can hear your
`question again? Sorry.
` Q Sure. Is it your opinion that the
`claimed measuring device is limited by the
`structure disclosed at -- or described within
`the boxed unit 14, 24 here in figure 2?
` A I don't think I perform that analysis
`in my declaration. This is certainly one
`example of what the patent is talking about.
` Q So going back to my earlier question
`of how many inputs the claim "measuring device"
`has, the patent does not tell a POSITA how many
`inputs it has; is that right?
` A I think I would phrase it that the
`patent talks about the various embodiments that
`would inform this POSITA. I don't recall the
`patent saying it has to be some specific number
`or it may not have to not be that specific
`number or something like that. I don't recall
`having an opinion on that.
` Q What is the shape of the claimed
`measuring device?
` A I'm not sure I quite understand the
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 10 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`43
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`question. Are you asking about this figure 2?
` Q I'm asking you in general. My
`understanding of your opinion is that you
`contend that the measuring device describes a
`structure or class of structures, correct?
` A Correct.
` Q My question is what is the shape of
`that structure or class of structures?
` A I don't think I've offered an opinion
`on that, that it -- you know, it's necessarily
`a -- I hope I'm not oversimplifying your
`question -- a circle or a square or something
`like that.
` Q Is software a structure?
` A It can be, is my understanding, yes.
` Q In what circumstances can it be?
` A I would think if you've got software
`performing, you know, a specific task, perhaps
`you don't want to use a digital circuit specific
`for it. You'd want to do it in a
`microcontroller with firmware or something.
`That could be a structure.
` Q So you would have to have the
`recitation of some algorithm for there to be
`structure associated with a -- with software?
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 11 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`44
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` MR. HASENOUR: Objection. Vague.
` A I'd probably need to go back to my
`declaration to see if I cover that. I don't
`remember in my declaration talking about that
`one way or the other.
` Q With respect to the claimed measuring
`device, can you go into a store and purchase
`one?
` A I don't know that I have done that
`analysis, if you could go purchase -- yeah, I
`don't have an opinion on that right now.
` Q So you don't know one way or the
`other whether that would be possible?
` A You could certainly go to a store and
`purchase a, you know, embedded microcontroller
`and do things with it. I don't know that I've
`really performed an analysis of -- you know,
`we're pretty far off the road. This sounds very
`hypothetical, but as I, you know, go to the
`microprocessor store and take it out of the box,
`is that a measuring device? I don't know.
`Could you use it for that? Perhaps. I mean, I
`haven't gone into that analysis in my claim
`construction declaration.
` Q Well, I understand that. I'm just
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 12 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`45
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`trying to better understand, what is the class
`of structures to which measuring device relates,
`in your opinion?
` A I would say that at least two
`examples or, I would say, data points the patent
`gives are hardware or software. That's always
`sort of a -- for this measuring device, and
`there's reasons why you might want to do one or
`the other or a mix. I've always kind of viewed
`it as a continuum. There's trade-offs to
`either, cost, power, what have you. Those
`certainly, either hardware or software or
`various points in between, would be a structure
`for the measuring device.
` Q With respect to claim 1 again, going
`back into what was claimed, do the claims state
`or require --
` MR. RADSCH: Strike that. Let me
`start over.
` Q In claim 1 did the claims state
`whether the measuring device is connected to the
`transmission oscillator?
` A Let me take a second to review the
`claim.
` (Witness reviewing document.)
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 13 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`46
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` Your question was, is -- does the
`claim state is the measuring device connected to
`the oscillator; is that correct?
` Q Yeah. Does the claimed measuring
`device have to be connected to the claimed
`transmission oscillator?
` MR. HASENOUR: Objection. Vague.
` A (Witness reviewing document.)
` So I see in the claim element
`starting in column 12, line 7, "a measuring
`device for monitoring a property of the
`transmission oscillator." I don't see that, at
`least in this claim, it is using the word
`"connected" in, sort of -- explicitly in the
`claim language, if that's what your question
`was.
` Q My question is does there have to be
`any connection between those two elements, the
`transmission oscillator and the measuring
`device.
` A So "connection" is, sort of, a word
`we haven't discussed yet, or I don't think we
`have. It doesn't say, for example, it must or
`must not be a connection of a certain kind or
`things like that. It's saying that the
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 14 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`63
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` A In the sense that all of these blocks
`can be done in software. We've -- there's
`always this continuum of hardware and software.
`We even have things like software-defined radio
`now. So these filters, comparators and things
`could be implemented in software and you would
`feed that into, perhaps, a microcontroller and
`some firmware that's going to implement the
`algorithm.
` Q I'm not sure that that answered my
`question. But in what sense is figure 5 a
`software algorithm?
` A In the sense that if I am looking to
`implement figure 5 in software, it's showing
`you're using an input 13 and there is an
`oscillator, and then there is a divider, you're
`going to do some comparison, and these various
`steps that occur before generating whatever your
`output is, or maybe a digital representation of
`it on that lower right-hand corner.
` Q To be clear, figure 5 is a hardware
`schematic, correct?
` A It's a block diagram of -- I think
`what the figure is described as is a circuit
`implementation.
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 15 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
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`64
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` Q And a circuit is hardware, correct?
` A I mean, it can be. We also have
`software models of circuits. But I think what
`the description of figure 5 is saying is this is
`kind of a visualization of what could be a
`circuit. Obviously, we don't see resistors or
`capacitors in this dotted box 46 but ...
` Q Figure 5 is described in the
`specification as being a PLL circuit, correct?
` A As part of it, yes, a phase lock
`loop.
` Q What is a phase lock loop circuit?
` A Generally, it's a circuit that's
`looking at the phase relationship between, kind
`of, two waveforms, and if they're synced up,
`everything is okay kind of thing. You know, if
`one starts to veer off, it can use feedback to
`kind of bring them back in alignment. That's
`one of the things you can use it for.
` Q Could you please turn to paragraph 37
`of your declaration.
` A And you'd figure I would be more
`efficient at scrolling by now. Sorry.
` Q That's okay. It's not easy remotely.
` So in paragraph 37 of your
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`PLANET DEPOS
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`Case 6:21-cv-01101-ADA Document 42-3 Filed 07/07/22 Page 16 of 16
`
`Transcript of Michael C. Brogioli, Ph.D.
`Conducted on June 29, 2022
`
`65
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`declaration, you refer to the prosecution
`history of the '360 patent, correct?
` A That's correct, yes.
` Q And in the third sentence of
`paragraph 37, you state, "For example, the
`Examiner issued a rejection stating that the
`'measuring device' recited in the pending claims
`was a structure 'known in the art of
`communications.'" Do you see that?
` A Yes.
` Q I'd like to take a look at that
`exhibit so you can see what the examiner said.
` MR. RADSCH: If we could please pull
`up Exhibit 5 to defendant's brief.
` (Brogioli Exhibit 4 marked for
`identification and attached to the transcript.)
` Q Okay. And your declaration cites to
`pages ending in Bates number 275 through 276.
`So that's where I would focus your attention.
`Do you see that there in paragraph 37 of your
`declaration?
` A I do, yes.
` Q Okay. So focusing on those two pages
`of Exhibit 4, Bates numbers ending 275 and 276,
`so the examiner refers to a reference to
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