Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 1 of 8
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`Exhibit 17
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 2 of 8
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`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
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` A P P E A R A N C E S
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`ON BEHALF OF PLAINTIFF:
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` DREW HOLLANDER, ESQUIRE
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` SETH HASENOUR, ESQUIRE
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` RUSS AUGUST & KABAT
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` 12424 Wilshire Boulevard
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` 12th Floor
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` Los Angeles, California 90025
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` 310.826.7474
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`ON BEHALF OF DEFENDANT - APPLE INC.
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` ANDREW RADSCH, ESQUIRE
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` DAVID SERATI, ESQUIRE
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` ROPES & GRAY
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` Three Embarcadero Center
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` San Francisco, California 94111
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` 415.315.6300
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`ALSO PRESENT:
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` George Larkins - Videographer
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` Alan Ross - Remote Technician
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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 HUGH SMITH, Ph.D.
`
` APPEARING REMOTELY FROM SAN LUIS OBISPO, CA
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` WEDNESDAY, JUNE 29, 2022
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` 4:02 P.M. EST
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`Job No.: 453528
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`Pages 1 - 74
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`Reported by: Adrienne Mignano, RPR
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` Deposition of HUGH SMITH, Ph.D., held via
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` C O N T E N T S
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`Zoom videoconferencing pursuant to Notice, before
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`EXAMINATION OF HUGH SMITH, Ph.D. PAGE
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` By Mr. Radsch 6
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` E X H I B I T S
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` (Attached to the transcript)
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`SMITH DEPOSITION EXHIBITS PAGE
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`Exhibit 1 Declaration of Dr. Hugh Smith 16
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`Exhibit 2 '249 Patent 17
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`Adrienne M. Mignano, a Notary Public and Registered
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`Professional Reporter in and for the State of New
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`York.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`

`

`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
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` Q And have you been deposed before?
` A Yes, I have.
` Q About how many times?
` A 40, give or take.
` Q Is there any reason why you cannot
`give complete and accurate testimony today?
` A No, there is not.
` (Pause in proceedings.)
` Q Do you have any exhibits or documents
`with you today?
` A Yes, I do.
` Q What do you have with you?
` A I have my declaration, a copy of the
`'249 patent, a copy of the claims, 10 -- 1 and
`10, and then the declaration of Dr. Black.
` Q When you say you have "a copy of the
`claims," is that just a document to which the
`claim language has been copied?
` A Yes, and it has the claim term and
`then the claim language for Claim 1 and the
`claim language for Claim 10.
` Q Okay. And, in any of the documents
`you just listed, are there any annotations in
`any of them?
` A No, there is not.
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` THE VIDEOGRAPHER: We are now on the
`record. Here begins Media Unit Number 1 in the
`video deposition of Dr. Hugh Smith in the matter
`of Aire Technology Limited versus Apple
`Incorporated, being heard in the United States
`District Court for the Western District of
`Texas, Waco Division; Case Number:
`6:21-cv-1101-ADA.
` Today's date is June 29, 2022. The
`time on the video monitor is 4:02 p.m. Eastern
`Time. My name is George Larkins, notary and
`remote certified legal video specialist on
`behalf of Planet Depos. Today's video
`deposition is taking place -- is taking place
`remotely.
` Will counsel please state their
`appearances and whom they represent at this
`time.
` MR. RADSCH: This is Andrew Radsch
`from Ropes & Gray on behalf of Defendant,
`Apple Inc., and I am joined today by David
`Serati, also from Ropes & Gray.
` MR. HOLLANDER: This is Drew
`Hollander. I am with Russ August & Kabat on
`behalf of the plaintiff. With me today is Seth
`
`6
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`Hasenour, also with Russ August on behalf of the
`plaintiff.
` THE VIDEOGRAPHER: The court reporter
`today is Adrienne Mignano representing Planet
`Depos.
` Will the court reporter please swear
`in the witness.
`Whereupon,
` HUGH SMITH, Ph.D.,
`being first duly sworn or affirmed to testify to
`the truth, the whole truth, and nothing but the
`truth, was examined and testified as follows:
` EXAMINATION BY COUNSEL FOR THE DEFENDANT -
` APPLE INC.
`BY MR. RADSCH:
` Q Good afternoon, Dr. Smith.
` A Good afternoon.
` Q Could you please state your full name
`for the record.
` A Yes. Hugh Morris Smith.
` Q And where are you located, Dr. Smith?
` A I'm in San Luis Obispo, California.
` Q Who are you currently employed by?
` A California Polytechnic State
`University.
`
` Q What is your current role at Cal
`Poly?
` A I am a full professor in the
`Department of Computer Engineering, and I'm --
`teach computer engineering, computer science
`courses.
` Q What experience do you have with
`authentication technologies?
` A So in terms of relating to the
`technologies we're talking about in this case, I
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`started in, probably, 1988 working with a large
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`distributed system on authenticating the users
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`and how we manage multi -- multiple sign-ons and
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`things like that that is in a purchasing system
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`at Procter & Gamble.
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` In addition, I have studied them as a
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`grad student through the '90s, and then, also, I
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`teach different techniques for security and
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`authentication in my networking courses.
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` Q In those networking courses, which
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`different techniques for security authentication
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`do you teach?
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` A So a lot of the focus there is on
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`using public/private-key and then symmetric-key
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`encryption for authenticating using keys, using
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 3 of 8
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`

`

`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
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`that are not biometric.
` Q So from that perspective then, is it
`your opinion the claims require use of a
`biometric method?
` MR. HOLLANDER: Objection. Misstates
`testimony.
` A Well, as I stated, the patent is
`talking about something that presupposes the
`presence of the user for the inherently
`relatively higher quality, and we just discussed
`biometric is one way to do that. And it -- as I
`sit here, it's the only way that I'm aware of.
`It doesn't mean it is the only way that will
`ever be available.
` Q At the time of the '249 patent's
`purported invention, were there other methods
`available, other than biometric, that
`presupposed the personal presence of the user?
` A As I sit here today, I cannot recall
`any other technique other than the biometric
`techniques at the time of this patent. I don't
`recall any at this time.
` MR. RADSCH: If you could turn to
`Claim 1 of the patent and put that on the
`screen, if you would.
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`relatively higher quality. And so it is about
`the nature of that method, is what that is
`talking about, what they clarified when they
`added that amendment.
` Do you want me to keep going on every
`word? I mean, it is all laid out in my
`declaration, so I could continue reading from my
`declaration if you wish.
` Q Well, it -- paragraph 13 of your
`declaration, you say that no construction is
`necessary and that the phrase is understood
`under plain and ordinary meaning; do you see
`that?
` A Yes.
` Q And what do you contend the plain and
`ordinary meaning of that phrase is?
` A So for me -- and, now, we're talking
`in a very general sense, so the plain and
`ordinary meaning of that is, is there a -- based
`on the way the specification reads, first of
`all, we can look at inherently relatively higher
`quality. Okay. So this -- I -- right?
` Well, the specification is clear on
`that, that that is something that presupposes
`the presence of the user, like a biometric
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` If you will, just scroll to the last
`page of the document, Claim 1, please.
` Thank you.
` Q So do you see on the screen,
`Dr. Smith, Claim 1 of the '249 patent?
` A Yes.
` THE WITNESS: Can you zoom so I can
`see the whole thing?
` A Yes, I do.
` Q And it is your opinion that that last
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`clause, the "wherein the difference in quality
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`of said user authentication methods," et cetera,
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`that -- your opinion, that's not indefinite,
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`correct?
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` A So my opinion is that the term
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`"inherently relatively lower quality, inherently
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`relatively higher quality" from a security
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`perspective would be understood by one skilled
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`in the art. So, no, it is not indefinite.
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` Q So those -- the -- if the phrase said
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`"user authentication methods" in what you
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`referenced, refers back to the different-quality
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`user authentication methods at the beginning of
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`Claim 1; is that right?
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` MR. HOLLANDER: Objection. Vague.
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`PLANET DEPOS
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`method. And then the next part is relatively --
`inherently relatively lower quality, and the
`specification is also very clear on that, that
`that is something that does not presuppose the
`presence of the user, and, in that case, like
`knowledge based.
` And so I think that sort of spells it
`out. I think one skilled in the art reading the
`specification would see it that way.
` Q So the claims are limited to use of a
`biometric method; is that your opinion?
` MR. HOLLANDER: Objection. Misstates
`testimony.
` A No, that wasn't my testimony. So my
`testimony is that it -- that the inherently --
`the relatively higher quality from a security
`perspective, inherently relatively higher
`quality, would be something that presupposes the
`presence of the user, such as a biometric
`technique.
` Q Are there other authentication
`methods other than biometric techniques that
`presuppose the presence of the user?
` A As I sit here today, I'm not aware of
`any that presuppose the presence of the user
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 4 of 8
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`

`

`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
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`12 (45 to 48)
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`you know, in terms of the context of the rest of
`the claim, we would have to go through and talk
`about the rest of the claim, but this claim --
`this here, the term we're talking about, is
`talking about two caps. It is defining those
`two.
` Q Two caps are inherently lower and
`inherently higher quality authentication
`methods, correct?
` A As we have been discussing throughout
`this deposition.
` Q And the portion of the specification
`that we just read from, where it says that "The
`biometric method inherently constitutes the
`higher quantity one here," that is referring to
`the specific example provided in the
`specification, correct? That's what is meant by
`the word "here"?
` A Well, it means "here" because it
`is -- yes, it is the example of something that
`presupposes a personal presence of the user, and
`so sort of a qualification there of what it --
`why, right? And biometric happens to be, you
`know, a whole category of techniques that
`presuppose the presence of the user.
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`authentication check and at least one biometric,
`within which the biometric features of the user
`may be present. The biometric method inherently
`constitutes the higher quality one here since it
`presupposes the personal preference of the user.
`This is not insured in a knowledge-based method
`since the knowledge can be acquired by an
`unauthorized user.
` And so right there, it is talking
`about the higher quality versus the lower
`quality, which is presupposing the presence of
`the user, like a biometric, or not presupposing
`the presence of the user.
` Q Have you -- sorry. Go ahead.
` A So if you look at paragraph 16, there
`is a number of other references that discuss
`that, including column 3:58 through 62 and
`column 5:31 through 38. So there is at least
`one more that -- I believe, column 1:62 through
`column 2:3 -- line 3. Okay.
` I'm sorry. I think I answered your
`question. Go ahead and ask the next one.
` Q In the portion of the specification
`that you read from at column 3 around line 25,
`where it states that -- or a little lower than
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` Q Would you agree that this sentence
`doesn't say that biometric methods always
`inherently constitute a higher quality method?
` A I think once -- yes, I -- actually, I
`do because the biometric method says it
`presupposes a personal preference of the user,
`so to the extent that the biometric method
`presupposes the presence of the user, it would
`always fall into the higher quality.
` Now, if it -- if there is a biometric
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`method you'd like to talk about that doesn't
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`presuppose the presence of the user, then that
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`would fall into the lower category if it doesn't
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`presuppose, but I'm not aware of any, as I sit
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`here, that don't presuppose the presence of the
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`user.
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` Q Doesn't your answer ignore the word
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`"here" in that sentence, where it says, "The
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`biometric method inherently constitutes the
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`higher quality one here" instead of in all
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`biometric cases?
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` A No, because it is -- actually, you
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`can read that word "here" to say versus a lower
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`quality, which would be the PIN, which is what
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`it goes on to talk about below that. And then
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`PLANET DEPOS
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`that, line 28 -- "The biometric method
`inherently constitutes the higher quality one
`here."
` What does that word, "here," in that
`sentence mean?
` A So it is just talking about in this
`example the biometric one constitutes the higher
`quality one since it presupposes the presence of
`the user. So, earlier today, you asked me, is
`biometric the only way that you can do
`authentication that presupposes presence of the
`user? And I said it is the only way that I'm
`aware of. But, in this case, it is the example
`of a technique that presupposes the presence of
`the user.
` Q So would use of two authentication
`techniques, each of which presupposes the
`presence of the user, would that be -- then fall
`outside the scope of the claims, in your
`opinion?
` A So in terms of the term that we're
`construing here, discussing the construction of,
`I believe it is looking at two camps, and in one
`that presupposes and one that doesn't, or
`biometric versus knowledge based. I don't --
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 5 of 8
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`

`

`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
`49
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`13 (49 to 52)
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`element correctly -- I'm going to assume that.
`I didn't follow you reading it, but -- so what
`it is talking about there is the user
`authentication varies between an inherently
`relatively lower quality and an inherently
`relatively higher quality, right? So it is --
`whatever that method is, it can fall into one of
`those two camps.
` Q And is it your opinion that all
`authentication methods would fall into either
`one or two of those camps?
` A So, as I sit here today, and as the
`patent discusses, I'm not really aware of any
`that don't fall within those two camps, but the
`ones that I'm aware of do fall within
`presupposing versus not presupposing, so...
` Q So if one were to design a data
`carrier that was arranged to perform a
`knowledge-based method and a token-based method,
`that would be with -- fall outside the scope of
`Claim 1?
` MR. HOLLANDER: Objection. Vague.
` A I don't really have -- I don't have
`an opinion on that particular question. What I
`would say is that -- assuming that we're
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`it clarifies why that is here, why that
`particular method is, is because it presupposes
`the presence of the user. So, no, I do not -- I
`disagree that -- with your reading of the word
`"here."
` Q Is a claim, Claim 1, for example,
`limited to use of just two different
`authentication methods?
` A So the claim is --
` MR. HOLLANDER: Objection. Vague.
` Sorry. Objection Vague.
` A So if we look at it, the claim term
`that we're looking at, which is inherently lower
`quality, inherently relatively higher quality,
`it is really looking at two categories of
`techniques, and we've already talked about those
`categories being one presupposing the presence
`of the user and the other not presupposing the
`presence of the user.
` Q Going back to my question, I don't
`think that quite answered it. The -- does the
`claim -- is the claim limited to the use of just
`two different authentication methods?
` A What do you mean --
` MR. HOLLANDER: Objection. Vague.
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`defining "token based" as being an external fob,
`key, or something like that, that both of those
`would be knowledge based and fall underneath the
`relatively lower quality category of techniques.
` Q So it is your opinion that neither
`would be relatively higher as compared to the
`other in the case of a token- versus a
`knowledge-based method?
` MR. HOLLANDER: Objection. Misstates
`testimony.
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` A As I've already stated, the token is
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`basically a knowledge based at the point where
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`you get the passkey or whatever it is from the
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`fob, so both of those would fall underneath the
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`same category of an inherently relatively lower
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`quality technique.
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` Q Is it your opinion that all
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`token-based methods are knowledge based at the
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`point of entry?
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` MR. HOLLANDER: Objection. Vague.
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` A So assuming that the token is an
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`external fob, then it doesn't presuppose the
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`presence of the user, and so, therefore, if
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`that's the case, it would fall underneath the
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`lower -- the inherently relatively lower
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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` A What do you mean by "authentication
`methods"?
` Q I'm using that term as is used in
`Claim 1.
` A Okay. Let me read and find that. So
`it is a method, but that's not the method you're
`talking about. Okay.
` Different user authentication
`methods, so you're talking about earlier in the
`claim?
` Q The claim recites the data carrier
`arranged to perform different quality user
`authentication methods, correct?
` A Correct.
` Q And the claim at the end refers back
`to those user authentication methods where it
`states that there is -- "Wherein the difference
`in quality of said user authentication methods
`varies between an inherently relatively lower
`quality and an inherently relatively higher
`quality from a security perspective," right?
` A So --
` MR. HOLLANDER: Objection.
`Argumentative.
` A So assuming you read that claim
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 6 of 8
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`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
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`perspective as a method that requires simply the
`input of one digit?
` MR. HOLLANDER: Objection. Misstates
`testimony.
` A From the perspective of this
`particular claim element and the term that we're
`talking about is would those both fall into --
`or would that technique fall into the higher
`quality, the relatively -- inherently relatively
`higher quality or the inherently relatively
`lower quality? And, in this case, because it
`presupposes the presence of the user, it would
`fall into the higher quality.
` Q So outside the context of the '249
`patent, how would a POSITA at the time of
`alleged invention analyze the quality of an
`authentication method?
` MR. HOLLANDER: Objection. Vague.
` A Yeah, you're going to have to say
`more. So there's all sorts of different things
`to think about when we're talking about an
`authentication method and what is important to
`the person -- or not to -- not to the user, but
`to the system developer. So it is clear from
`the '249 that that criteria is present or not
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`inherently relatively lower?
` MR. HOLLANDER: Objection. Calls for
`speculation.
` A So the question really becomes down
`to does it presuppose a presence of the user,
`such as a biometric, or does it not presuppose
`the presence of the user?
` Q Okay. So taking the former, the
`presupposing the presence of the user, again,
`can you, sitting here today, identify any
`authentication methods, other than biometric
`methods, that presuppose the personal presence
`of the user?
` A As I answered this question earlier,
`I don't recall -- I don't have any on the top of
`my head that are not biometric that -- let me
`make sure I don't do double-negatives the wrong
`way -- that presupposes the presence of the
`user.
` Q Okay. And then with respect to
`inherently relatively lower quality
`authentication methods, you gave knowledge based
`as an example. Are there others that you
`contend fall within that scope?
` A I haven't really thought about that.
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`presence of the user. From, you know, the
`system you're, designing what is your criteria?
` Q Now, with respect to biometrics, a
`biometric method can be spoofed, correct, in
`which case the personal presence of the user is
`not required?
` MR. HOLLANDER: Objection. Vague.
` A So it doesn't change for the
`categorization, the inherent, right? So this is
`where that inherent quality comes in. It
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`doesn't change the inherentness that that
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`presupposes the presence of the user. Now, if
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`you have a poor implementation or whatever, now,
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`that is a different story, but it doesn't change
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`the inherent nature of the technique. That's
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`just an implementation issue or problem.
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` Q So the answer is that, yes, the
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`biometric methods can be spoofed?
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` MR. HOLLANDER: Objection. Misstates
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`testimony.
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` A So my testimony is the fact that that
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`is sort of irrelevant to the claim term that
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`we're talking about, and that's what we're here
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`to talk about today, is this particular claim
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`element, or claim term, and so the -- it doesn't
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`And just doing it on the fly, just like the same
`thing with the biometric versus other
`techniques, it is not something that I'm ready
`to do, so I -- at this point, I think a perfect
`example is a knowledge based, but I don't have
`any other examples that I have come up with.
` Q And going back to the question of
`multifactor authentication, would a --
`fingerprints entered in a specific order be more
`secure than just a single fingerprint?
` MR. HOLLANDER: Objection. Calls for
`speculation.
` A So that's not really the question to
`ask in terms of this particular claim term. So
`the question to ask is: Does the technique
`require or presuppose the presence of the user?
`And so the answer is: Yes, it does. And it
`would -- the fingerprinting, because that's
`what's being used, would fall into the higher
`category.
` Q So just so I understand your
`testimony, your testimony is that an
`authentication methodology in which a user had
`to input her fingerprints in a specific order
`has the same inherent quality from a security
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 7 of 8
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`

`

`19 (73 to 76)
`
`Transcript of Hugh Smith, Ph.D.
`Conducted on June 29, 2022
`73
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` ACKNOWLEDGMENT OF DEPONENT
`
` I, HUGH SMITH, Ph.D., do hereby
`acknowledge that I have read and examined the
`foregoing testimony, and the same is a true,
`correct and complete transcription of the
`testimony given by me and any corrections appear
`on the attached Errata sheet signed by me.
`
`_____________________ ______________________
` (Date) (Signature)
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`74
` CERTIFICATE OF REPORTER - NOTARY PUBLIC
` I, ADRIENNE MIGNANO, the officer before
`whom the foregoing deposition was taken, do hereby
`certify that the foregoing transcript is a true
`and correct record of the testimony given; that
`said testimony was taken by me and thereafter
`reduced to typewriting under my direction; that
`reading and signing was requested; and that I am
`neither counsel for, related to, nor employed by
`any of the parties to this case and have no
`interest, financial or otherwise, in its outcome.
` IN WITNESS WHEREOF, I have hereunto set
`my hand and affixed my notarial seal this 5th day
`of July, 2022.
`My Commission Expires: June 2026.
`
`
`
`
`
`_______________________
`Adrienne Mignano
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`
`
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`PLANET DEPOS
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`Case 6:21-cv-01101-ADA Document 49-5 Filed 07/28/22 Page 8 of 8
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