Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 1 of 10
`Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 1 of 10
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`EXHIBIT 17
`EXHIBIT 17
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`Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 1 of 10
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`EXHIBIT 17
`EXHIBIT 17
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 2 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 2 of 10
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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
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` FOR THE WESTERN DISTRICT OF TEXAS
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` WACO DIVISION
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`1 2
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`3
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`4
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`5 6
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` IOENGINE, LLC., )
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`7 Plaintiff/ )
` Counterclaim Defendant, )No.6:21-cv-
`8 )1296-ADA
` )
`9 vs. )
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`10 ROKU, INC., )
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`11 Defendant/ )
` Counterclaim Plaintiff. )
`12 -----------------------------)
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`13
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`14
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`15
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`16 REMOTE VIDEOTAPED DEPOSITION OF
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`17 DR. MICHAEL MITZENMACHER
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`18
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`19 Thursday, September 8, 2022
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`20
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`21
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`22 Reported by:
` LISA M. MURACO
`23 JOB NO. 216719
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`24
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`25
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 3 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 3 of 10
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`Page 2
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` Thursday, September 8, 2022
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`1 2
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`3 10:00 a.m.
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` REMOTE Deposition of DR. MICHAEL
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`4 5 6
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`7 MITZENMACHER held VIA ZOOM, before LISA M.
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`8 MURACO, a Notary Public of the State of New
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`9 York and Florida.
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`10
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`11
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`12
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`13
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`14
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`15
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`17
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`18
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`20
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`22
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`25
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`Page 3
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 4 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 4 of 10
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` A P P E A R A N C E S:
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`1 2
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`3 (REMOTE)
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` Dechert LLP
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`4 5
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`6 Attorneys for Plaintiff and Counterclaim
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`7 Defendant
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`8 1095 Avenue of the Americas
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`9 New York, NY 10036
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`10 BY: GREGORY CHUEBON, ESQ.
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`11
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`12
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`13 Oblon, McClelland, Maier & Neustadt, L.L.P.
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`14 Attorneys for Defendant and Counterclaim
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`15 Plaintiff
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`16 1940 Duke Street
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`17 Alexandria, VA 22314
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`18 BY: CHRISTOPHER RICCIUTI, ESQ.
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`19 ELISSA SANFORD, ESQ.
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`20
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`21
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`22 ALSO PRESENT:
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`23 Legal Video Specialist, Adrienne Chemel
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`24
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`25
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`Page 4
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 5 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 5 of 10
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`1 M. Mitzenmacher
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`2 THE VIDEOGRAPHER: Good morning,
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`3 Counsellors. My name is Adrienne Chemel.
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`4 I am a legal videographer in association
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`5 with TSG Reporting Inc.
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`6 I will not be in the same room with
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`7 the witness. Instead, I will record this
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`8 videotaped deposition remotely.
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`9 The reporter, Lisa Muraco, also will
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`10 not be in the same room and will swear the
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`11 witness remotely.
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`12 Do all parties stipulate to the
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`13 validity of this video recording and remote
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`14 swearing, and that it will be admissible in
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`15 the courtroom as if it had been taken
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`16 following Rule 30 of the Federal Rules of
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`17 Civil Procedures and the state's rules
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`18 where this case is pending?
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`19 MR. CHUEBON: This is Greg Chuebon
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`20 of Dechert, on behalf of plaintiff and
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`21 counterclaim defendant Ioengine, LLC. And
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`22 we do so stipulate.
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`23 MR. RICCIUTI: Christopher Ricciuti
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`24 of the Oblon firm, on behalf of defendant
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`25 Roku. And we so stipulate as well.
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`Page 5
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 6 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 6 of 10
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`1 M. Mitzenmacher
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`2 THE VIDEOGRAPHER: Thank you.
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`3 This is the start of tape labeled
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`4 number one of the videotaped deposition of
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`5 Dr. Michael Mitzenmacher in the matter
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`6 Ioengine, LLC, v. Roku, Inc., in the United
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`7 States District Court for the Western
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`8 District of Texas, Waco Division, Case
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`9 No. 6:21-cv-1296-ADA.
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`10 All parties have agreed to appear
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`11 remotely on September 8, 2022, at
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`12 approximately 10:01 a.m.
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`13 Will counsel please introduce
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`14 yourself.
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`15 MR. CHUEBON: This is Greg Chuebon
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`16 of Dechert LLP, on behalf of plaintiff and
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`17 counterclaim defendant Ioengine, LLC.
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`18 MR. RICCIUTI: Christopher Ricciuti
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`19 of the Oblon firm, on behalf of defendant
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`20 Roku, counterclaim plaintiff, as well as
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`21 the witness Dr. Mitzenmacher.
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`22 M I C H A E L M I T Z E N M A C H E R, called
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`23 as a witness, having been duly sworn by a
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`24 Notary Public, was examined and testified as
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`25 follows:
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`Page 98
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 16 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 7 of 10
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`1 M. Mitzenmacher
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`2 saying that some of the actual drafting may
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`3 have been done by counsel or counsels, you
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`4 know, subordinates.
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`5 Q. So who was the draftsperson for the
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`6 asserted patents?
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`7 MR. RICCIUTI: Objection. Scope.
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`8 Asked and answered.
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`9 A. I would have to look back at the
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`10 file history to see if there was additional
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`11 information. I don't recall, as I sit here.
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`12 Q. So you don't know who the
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`13 draftsperson was for the asserted patents,
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`14 correct?
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`15 MR. RICCIUTI: Objection. Scope.
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`16 Asked and answered.
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`17 A. I certainly don't recall, as I sit
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`18 here.
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`19 And again, to be clear, this came up
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`20 in the context, you know, where you were
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`21 discussing, you know, the person drafting had
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`22 them, you know, had the knowledge or the
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`23 capability, or some phrasing that you used
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`24 regarding, could have stated these terms.
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`25 And to be clear, I guess we're
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`Page 99
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 17 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 8 of 10
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`1 M. Mitzenmacher
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`2 talking about different patents, the '819
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`3 patent and the '006 patent.
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`4 And, like, I would have to go back
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`5 and check or recall, you know, that they might
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`6 well -- aspects of the actual drafting may not
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`7 have not been done even by the same person
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`8 within the law firm, even if it was done by the
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`9 same law firm.
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`10 Clearly, I was not there when the
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`11 patents were drafted. So, you know, I cannot
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`12 comment on the mindset of the individuals
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`13 drafting.
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`14 Q. Okay.
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`15 Well, do you know who the
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`16 draftsperson was when you wrote your
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`17 September 2, 2022, declaration?
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`18 A. I don't recall --
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`19 MR. RICCIUTI: Objection.
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`20 Asked and answered.
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`21 BY MR. CHUEBON:
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`22 Q. Sorry. You were cut off there.
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`23 What was your answer?
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`24 A. I don't recall so.
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`25 Q. So -- well, in paragraph 5 of your
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 18 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 9 of 10
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`1 M. Mitzenmacher
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`2 September 2, 2022, declaration, you refer to
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`Page 100
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`3 something as a draftsman error in the
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`4 specification, don't you?
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`5 A. Well, I -- (inaudible) --
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`6 specifically say it appears to be a draftsman
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`7 error.
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`8 Q. Okay.
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`9 Have you seen any testimony from the
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`10 draftsman confirming that he or she made an
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`11 error in the drafting of the specification?
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`12 MR. RICCIUTI: Objection to form.
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`13 A. No, I had -- no, I have not.
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`14 Q. Have you seen any statement of any
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`15 sort by the draftsperson confirming that he or
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`16 she made an error in the drafting of the
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`17 specification?
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`18 A. I have not seen such confirmation.
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`19 Q. Okay.
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`20 Have you asked the draftsperson of
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`21 the specification whether or not he or she made
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`22 an error in the drafting of the specification?
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`23 A. No, I have not.
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`24 Q. Has Roku's counsel sought any
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`25 testimony from the draftsperson of the
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`Page 152
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`Case 6:21-cv-01296-ADA-DTG Document 72-2 Filed 09/16/22 Page 38 of 38Case 6:21-cv-01296-ADA Document 317-17 Filed 01/09/24 Page 10 of 10
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` C E R T I F I C A T E
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` STATE OF NEW YORK )
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`1 2
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`3 4
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`5 ) ss.:
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`6 COUNTY OF NEW YORK )
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` I, LISA M. MURACO, a Notary Public
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`7 8
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`9 within and for the State of New York and
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`10 Florida, do hereby certify:
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`11 That DR. MICHAEL MITZENMACHER, the
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`12 witness whose deposition is hereinbefore
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`13 set forth, was duly sworn by me and that
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`14 such deposition is a true record of the
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`15 testimony given by such witness.
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`16 I further certify that I am not
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`17 related to any of the parties to this
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`18 action by blood or marriage; and that I am
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`19 in no way interested in the outcome of this
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`20 matter.
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`21 IN WITNESS WHEREOF, I have hereunto
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`22 set my hand this 12th day of September,
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`23 2022.
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`24 -------------------------
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`25 LISA M. MURACO
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`
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