`Exhibit  C  
`
`Exhibit C
`
`

`

`In The Matter Of:
`Philips v.
`Fitbit
`
`Thomas Martin, PH.D.
`June 18, 2020
`
`Min-U-Script® with Word Index
`
`

`

`Philips v.
`Fitbit
`
`Page 1
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 3
`
` 1 UNITED STATES DISTRICT COURT
`
` 2 FOR THE DISTRICT OF MASSACHUSETTS
`
` 3
`
` 4
`
` 5 PHILIPS NORTH AMERICA LLC, ) Case No. 1:19-cv-11586-IT
`
` 6 Plaintiff, )
`
` 7 v. )
`
` 8 FITBIT, INC., )
`
` 9 Defendant. )
`
`10 ____________________________)
`
`11
`
`12
`
`13
`
`14 REMOTE VIDEOTAPED DEPOSITION OF
`
`15 THOMAS L. MARTIN, PH.D.
`
`16 June 18, 2020
`
`17 10:02 a.m. Eastern Standard Time
`
`18 Blacksburg, Virginia
`
`19
`
`20
`
`21
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`22
`
`23 REPORTED BY:
`
`24 Kristi Caruthers
`
`25 CLR, CSR No. 10560
`
` 1 APPEARANCES:
`
` 2
`
` 3 For Plaintiff:
`
` 4 FOLEY & LARDNER LLP
` BY: RUBEN J. RODRIGUES, ESQ.
` 5 111 Huntington Avenue
` Suite 2500
` 6 Boston, Massachusetts 02199-7610
` 617.342.4000
` 7 rrodrigues@foley.com
`
` 8
`
` 9 For Defendant:
`
`10 PAUL HASTINGS LLP
` BY: CHAD PETERMAN, ESQ.
`11 200 Park Avenue
` New York, New York 10166
`12 212.318.6797
` chadpeterman@paulhastings.com
`13
`
`14
` ALSO PRESENT:
`15
` Christian Ruiz, Videographer
`16
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` 3 Blacksburg, Virginia
` 4 June 18, 2020
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` 7
` 8 REMOTE VIDEOTAPED DEPOSITION OF THOMAS L.
` 9 MARTIN, PH.D., located in Blacksburg, Virginia,
`10 pursuant to agreement before Kristi Caruthers, a
`11 California Shorthand Reporter of the State of
`12 California.
`13
`14
`15
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` 1 INDEX TO EXAMINATION
`
` 2 WITNESS: THOMAS L. MARTIN, PH.D
`
` 3
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` 4 EXAMINATION PAGE
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` 5 By Mr. Peterman 8, 165
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` 6 (AFTERNOON SESSION) 103
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` 7 By Mr. Rodrigues 161, 167
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`(1) Pages 1 - 4
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`

`

`Philips v.
`Fitbit
`
`Page 45
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 47
`
` 1 MR. RODRIGUES: Objection to form.
` 2 THE WITNESS: Again, it's my opinion that
` 3 would be obvious to somebody, you know, skilled in
` 4 the art.
` 5 BY MR. PETERMAN:
` 6 Q. And you keep using the term it would be
` 7 obvious to someone of skill in the art.
` 8 What does -- what does that mean?
` 9 A. Well, as I've detailed in the report, I'm
`10 assuming somebody with a degree in electrical
`11 engineering or computer engineering or computer
`12 science, some related field, related knowledge, you
`13 know, from practice in the field.
`14 Q. Were you finished or -- I wasn't sure if
`15 you were finished with your answer.
`16 A. Yes, I'm finished.
`17 Q. So your opinion is is that all of these
`18 calculations that are called for in the claims would
`19 have been obvious for someone of skill in the art to
`20 implement?
`21 MR. RODRIGUES: Objection to form.
`22 THE WITNESS: Yes. It would have been
`23 obvious to someone skilled in the art.
`24 BY MR. PETERMAN:
`25 Q. So we've talked a lot about distance.
`
` 1 the structure in connection with the function of
` 2 computing athletic performance feedback data from a
` 3 series of time-stamped waypoints obtained by a GPS
` 4 receiver; is that correct?
` 5 MR. RODRIGUES: Objection to form.
` 6 THE WITNESS: And I'm sorry, Chad. Would
` 7 you repeat that again? You broke up in the middle.
` 8 BY MR. PETERMAN:
` 9 Q. Sure. I'd like to just direct your
`10 attention to Exhibit 1, Paragraph 13 of your report.
`11 A. Let me -- let me scroll back. You said
`12 Paragraph 13?
`13 Q. Correct.
`14 A. Okay. I'm looking at it.
`15 Q. Okay. And why don't you read it to
`16 yourself. I'm going to ask you some questions about
`17 that paragraph.
`18 (Document reviewed by witness.)
`19 THE WITNESS: Okay. I've read it to
`20 myself.
`21 BY MR. PETERMAN:
`22 Q. Okay. So do you agree with Philips's
`23 proposed construction for the term means for
`24 computing athletic performance feedback data from
`25 the series of time-stamped waypoints obtained by
`
`Page 46
`
`Page 48
`
` 1 Would it also have been obvious to
` 2 determine the current or average speed of an
` 3 athlete?
` 4 A. Well, as I've described in my report, once
` 5 you have the distance and you know the -- and you
` 6 would have been keeping track of the time, then
` 7 average speed is just the distance divided by the
` 8 time, again, a calculation that someone in grade
` 9 school would be able to do.
`10 Q. Is there an algorithm for calculating
`11 average sp.eed that's disclosed in the patent
`12 specification?
`13 MR. RODRIGUES: Objection to form.
`14 THE WITNESS: It's my opinion that just
`15 stating -- you know, finding the average speed would
`16 be sufficient.
`17 BY MR. PETERMAN:
`18 Q. And is that your same opinion also for
`19 finding the current speed?
`20 MR. RODRIGUES: Objection to form.
`21 THE WITNESS: Yes.
`22 BY MR. PETERMAN:
`23 Q. So I'd like to understand this a little
`24 bit more, and I know we're talking about the '007
`25 patent, and you've identified a processor as being
`
` 1 said GPS receiver?
` 2 A. I agree.
` 3 Q. Part of that construction is a processor.
` 4 Do you see that?
` 5 A. Yes, I do.
` 6 Q. What is meant by "processor" here?
` 7 MR. RODRIGUES: Objection to form.
` 8 THE WITNESS: It means a computational
` 9 element, you know, a microcontroller or a
`10 microprocessor.
`11 BY MR. PETERMAN:
`12 Q. So, for example, an Intel chip would be an
`13 example of a microprocessor?
`14 A. Yes, an Intel chip would be an example of
`15 a microprocessor.
`16 Q. Do microprocessors need to be programmed
`17 with algorithms in order to perform?
`18 MR. RODRIGUES: Objection to form.
`19 THE WITNESS: Yes, they need to be
`20 programmed.
`21 BY MR. PETERMAN:
`22 Q. Does an Intel chip off the shelf know how
`23 to calculate distance between two waypoints?
`24 MR. RODRIGUES: Objection to form.
`25 THE WITNESS: No. An Intel processor off
`
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`(12) Pages 45 - 48
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`

`

`Philips v.
`Fitbit
`
`Page 49
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 51
`
` 1 the shelf would not be able to find the distance
` 2 between two points. It also wouldn't be able to do
` 3 anything else.
` 4 BY MR. PETERMAN:
` 5 Q. Would any processor off the shelf be able
` 6 to find the distance between two waypoints?
` 7 MR. RODRIGUES: Objection to form.
` 8 THE WITNESS: I'm not a lawyer -- I'm
` 9 sorry. What was that?
`10 MR. RODRIGUES: I was just saying
`11 objection to form.
`12 You can answer.
`13 THE WITNESS: Okay. I'm not a lawyer, but
`14 it is entirely possible that somebody could have
`15 made a processor that's dedicated to find distances
`16 between latitude and longitude points.
`17 BY MR. PETERMAN:
`18 Q. But in the 1998 to, you know, 2002 time
`19 frame, what processors were you aware of off the
`20 shelf that could find distance between two GPS
`21 waypoints?
`22 A. Well, almost any processor that somebody
`23 programmed to find those -- those waypoints would be
`24 able to do it.
`25 Q. But the key is that someone would need to
`
` 1 I'm happy to do it. I'm also happy to keep pushing
` 2 through. Whatever your preference is, sir.
` 3 A. I'm good. We can keep going.
` 4 Q. So your report, Paragraph 11, you lay out
` 5 your understanding of what a person of ordinary
` 6 skill in the art is.
` 7 A. Okay. I'm there.
` 8 Q. How did you come up with this construction
` 9 of a person of ordinary skill in the art?
`10 A. It's based upon my experience as -- as a
`11 professor and as a graduate student in the field.
`12 Q. So just tracking through your opinion. So
`13 you say:
`14 "A person of ordinary skill
`15 in the art of patent inventions
`16 as of the earliest claim priority
`17 date on the face of each patent."
`18 I just want to understand what your
`19 understanding is of the earliest claim priority date
`20 means.
`21 A. It's -- it's when the patent was first
`22 filed.
`23 Q. And you determined when the patent was
`24 filed by looking at the face of each of the
`25 respective patents?
`
`Page 50
`
`Page 52
`
` 1 program those off-the-shelf processors; correct?
` 2 A. That is correct.
` 3 Q. And the same is true for the current or
` 4 average speed of an athlete; correct? That would
` 5 need to be programmed by someone?
` 6 A. So the average speed would have to be
` 7 programmed, but the '007 patent actually stated that
` 8 the GPS unit could provide current speed.
` 9 Q. Would the average pace of an athlete need
`10 to be programmed into an off-the-shelf
`11 microprocessor?
`12 MR. RODRIGUES: Objection to form.
`13 THE WITNESS: Someone would have to write
`14 a program to do that, yes.
`15 BY MR. PETERMAN:
`16 Q. And it's your opinion that it would just
`17 be obvious to write a program to do these
`18 calculations; correct?
`19 MR. RODRIGUES: Objection to form.
`20 THE WITNESS: That is correct.
`21 BY MR. PETERMAN:
`22 Q. Just want to shift gears a little bit,
`23 still sticking with your expert declaration. And I
`24 also know that we've been going a little bit over an
`25 hour. If you'd like to take a break at this point,
`
` 1 A. Yes, I did.
` 2 Q. You continue in Paragraph 11 saying:
` 3 "It's an individual with at
` 4 least a bachelor's degree in
` 5 electrical engineering, computer
` 6 engineering or computer science."
` 7 Correct?
` 8 A. That's correct.
` 9 Q. And then you go on to say:
`10 "Some experience with
`11 activity and/or health-monitoring
`12 technologies or the equivalent
`13 thereof."
`14 Do you see that?
`15 A. I see that.
`16 Q. In your opinion, what counts as some
`17 experience with activity or health-monitoring
`18 technologies?
`19 A. It would be some work with the type of
`20 embedded system that is typically used for -- for
`21 the wearable devices and some of the sensing
`22 technologies around that.
`23 Q. Okay. So it's not just wearing a activity
`24 or health-monitoring tracker; correct?
`25 A. Sorry. I'm not sure what you're asking.
`
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`(13) Pages 49 - 52
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`

`

`Philips v.
`Fitbit
`
`Page 73
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 75
`
` 1 Q. Back in the 1998 time frame, did GPS
` 2 waypoints possibly contain errors?
` 3 A. Yeah. Selective availability was still
` 4 being used in the '90s. I think they turned it off
` 5 during the Gulf -- the first Gulf War for a short
` 6 period of time, but -- and I'd have to go back and
` 7 look exactly when they turned it off.
` 8 Q. And what does "selective availability"
` 9 mean?
`10 A. So -- sorry. Selective availability, when
`11 GPS first came out, it was intended for military
`12 applications, and the consumer versions of the
`13 receivers got a less accurate version of the
`14 signals. And so selective availability referred to
`15 that less accurate version of the GPS that was
`16 available for consumers.
`17 Q. So how did the patent claims overcome
`18 issues of selective availability?
`19 MR. RODRIGUES: Objection to form.
`20 THE WITNESS: So the patent did note that
`21 selective availability was an issue and limited the
`22 accuracy, but for the types of distances involved,
`23 and the application is there, the accuracy would
`24 have been -- actually, in terms of the sorts of
`25 feedback that they were giving the runner, or that
`
` 1 Do you see that?
` 2 A. Uh-huh, yes.
` 3 Q. Other than saying "smart algorithm," does
` 4 the specification actually provide an algorithm?
` 5 MR. RODRIGUES: Objection to form.
` 6 THE WITNESS: Actually, my opinion is
` 7 wherever the phrase "smart algorithm" is used seemed
` 8 to be referring to in addition to the other things
` 9 that were already claimed. So in addition to the
`10 feedback, they could be calculated from the
`11 waypoints. Whenever it mentioned smart algorithm,
`12 it was going further.
`13 BY MR. PETERMAN:
`14 Q. So in answer to my question, is there a
`15 smart algorithm disclosed in the specification or
`16 not?
`17 A. So smart algorithm is mentioned in a
`18 couple of places in response to a couple of
`19 different things.
`20 So are you asking about this particular
`21 mention of smart algorithm?
`22 Q. Yeah, I'm just asking whether there's an
`23 algorithm actually disclosed in the specification to
`24 filter out the erroneous position points resulting
`25 from signal interference or from induced errors
`
`Page 74
`
`Page 76
`
` 1 they actually -- I'm sorry -- would have been better
` 2 than what would have been available without GPS,
` 3 even in its -- even in the selective availability
` 4 form.
` 5 BY MR. PETERMAN:
` 6 Q. Where does the specification say what you
` 7 just said?
` 8 MR. RODRIGUES: Objection to form.
` 9 THE WITNESS: It mentions selective
`10 availability in that same column, Column 7. I'd --
`11 I'd have to look back through it to find out if it
`12 mentions selective availability anywhere else.
`13 BY MR. PETERMAN:
`14 Q. So in Column 7 at Line 51, it's a
`15 paragraph saying:
`16 "A smart algorithm can be
`17 used to filter out the erroneous
`18 position points resulting from
`19 signal interference or from
`20 induced errors through the U.S.
`21 government's Selective
`22 Availability (SA) program, which
`23 intentionally limits the absolute
`24 accuracy of civilian GPS
`25 receivers."
`
` 1 through the SA program.
` 2 A. So it's saying that if you want to avoid
` 3 these errors, you would have to filter out those --
` 4 filter out the induced errors.
` 5 Q. And does the specification provide an
` 6 algorithm for filtering out the induced errors?
` 7 MR. RODRIGUES: Objection to form.
` 8 THE WITNESS: It notes that if you were
` 9 concerned about the errors, you would have to filter
`10 them out, but implementation details are not
`11 provided.
`12 BY MR. PETERMAN:
`13 Q. And does the opinion that you offer in
`14 your report relate to the smart algorithm at all?
`15 A. Well, as I said before, the smart
`16 algorithm that's mentioned in the various places in
`17 the patent seems to be, in my opinion, in addition
`18 to what's described in terms of calculating
`19 performance, and it doesn't affect the opinion I've
`20 expressed in -- expressed in the declaration.
`21 Q. If the waypoints have errors in them,
`22 won't the calculation of the performance also have
`23 errors?
`24 MR. RODRIGUES: Objection to form.
`25 THE WITNESS: As I said earlier, the
`
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`(19) Pages 73 - 76
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`

`

`Philips v.
`Fitbit
`
`Page 77
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 79
`
` 1 accuracy would -- would be better than what would be
` 2 available without GPS, and so even with those
` 3 errors, you would still have a better estimate of
` 4 the distance you've traveled and your average speed
` 5 and so forth than if you didn't have any GPS at all.
` 6 And it would -- in my opinion, would be more than
` 7 sufficient for the sort of athletic performance that
` 8 we're talking about.
` 9 BY MR. PETERMAN:
`10 Q. So you're comparing the performance with
`11 GPS versus without GPS; correct?
`12 A. Yes. So trying to calculate those
`13 parameters without having a GPS unit, I don't think
`14 you could get that kind of accuracy by yourself, you
`15 know, anyplace in the world.
`16 Q. But let's assume that you're in a fully
`17 GPS world.
`18 Would you rather have waypoints without
`19 errors or waypoints with errors before doing the
`20 calculation of distance?
`21 MR. RODRIGUES: Objection to form, calls
`22 for speculation, incomplete hypothetical.
`23 THE WITNESS: That wasn't the comparison I
`24 was making earlier. The comparison I was making
`25 earlier was with GPS or without GPS. I mean if I'm
`
` 1 their -- their clocks, could that introduce errors
` 2 into the actual waypoints that get -- that get
` 3 calculated?
` 4 A. I'd -- I'd have to go read in more detail
` 5 the description of how GPS works, but off the top of
` 6 my head, if I'm recalling correctly, if the
` 7 satellites got out of sync with each other, you'd
` 8 have bigger problems than -- than your error. It
` 9 depends -- GPS depends upon the time of flight of
`10 the signals.
`11 Q. So if you had inaccurate time of flights,
`12 that would impact the GPS waypoint calculation?
`13 A. Again, I'd have to go look more to say,
`14 but off the top of my head, yes.
`15 Q. And are there environmental factors, you
`16 know, caused by, you know, the ionosphere or other
`17 atmospheric layers that could impact GPS accuracy?
`18 A. I'd have to look into that. I'm not aware
`19 off the top of my head, but I'd have to look into
`20 that.
`21 Q. Are you an expert on GPS calculations?
`22 A. In terms of what to do from the unit, or
`23 how the actual units work in the satellite system?
`24 Q. In terms of how the actual units work in
`25 the satellite system.
`
`Page 78
`
`Page 80
`
` 1 comparing two GPS systems and one's got more error
` 2 than the other, then I prefer the one with less
` 3 error, but if all I have is the choice of the one
` 4 with error, I'd prefer that over nothing.
` 5 BY MR. PETERMAN:
` 6 Q. Other than selective availability back in
` 7 the 1998 time frame, what are other sources of error
` 8 that could cause a GPS waypoint to be inaccurate?
` 9 A. Well, as noted in the patent, the altitude
`10 value from GPS had less accuracy than -- than the
`11 latitude/longitude estimate, so that would be
`12 another source of error.
`13 Off the top of my head, you know,
`14 interference from the signal. So if you're in an
`15 area -- this still occurs with GPS units again. If
`16 you're in an area with tall buildings or heavy trees
`17 or something that's blocking the signal, you might
`18 lose the signal for a while, and that would induce
`19 errors. That's all I can think of at the moment.
`20 Q. Would the clock synchronization
`21 potentially introduce errors?
`22 A. Can you explain what you mean by "the
`23 clock synchronization"?
`24 Q. If the satellites that you were using for
`25 GPS were not, you know, synchronized in terms of
`
` 1 A. No, I'm not an expert in how the GPS
` 2 satellite system works, but I don't think that's
` 3 necessary for this case because they're just using
` 4 the receiver.
` 5 Q. Jumping ahead to the long paragraph that
` 6 you have beginning on Paragraph 21 of your report.
` 7 Do you see the paragraph?
` 8 A. Yes, I do.
` 9 Q. I think you alluded to this earlier, and
`10 you're talking about the post from faq.org.
`11 Do you see that? It's on -- I guess
`12 Page 10 --
`13 A. Yes.
`14 Q. -- of the document?
`15 A. Yes.
`16 Q. And I should actually send it to you,
`17 unless you have it already, but just give me a
`18 second and let me send the document to you. It
`19 should have popped up in your chat.
`20 A. Yeah, I'm downloading it now.
`21 MR. PETERMAN: So I'm going to want to
`22 mark this document as Exhibit 3 to the deposition,
`23 and it's the Geographic Information Systems FAQ
`24 that's referred to in Paragraph 21 of Dr. Martin's
`25 report.
`
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`

`

`Philips v.
`Fitbit
`
`Page 97
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 99
`
` 1 BY MR. PETERMAN:
` 2 Q. Yes.
` 3 A. -- some particular type of systems or --
` 4 or what?
` 5 Q. Are you aware -- I'll take us through a
` 6 couple steps.
` 7 Did cops give speeding tickets before
` 8 1998?
` 9 A. Yes, cops gave speeding tickets before
`10 1998.
`11 Q. And is a determination of whether to give
`12 a speeding ticket whether the car is above or below
`13 the posted speed limit?
`14 A. Yes, that's the determination of whether
`15 or not to give the car a speeding ticket, the driver
`16 a speeding ticket.
`17 Q. Is the posted speed limit a threshold?
`18 A. Yes. Sorry, I'm smiling because, you
`19 know, the speed limit plus some -- some fraction of
`20 the usual... But, yes, in the case of speeding
`21 tickets.
`22 Q. And are you aware of any other systems
`23 that made a determination regarding whether a data
`24 point was above or below a threshold and then took
`25 some function -- took some action based on that
`
` 1 THE WITNESS: Well, can you be more
` 2 specific? Because I'm pretty sure people were able
` 3 to hear sounds before the patent was filed, so
` 4 that's, you know, audio traveling through the air.
` 5 BY MR. PETERMAN:
` 6 Q. Were headphones in use in any application
` 7 prior to the invention of the '007 patent in 1998?
` 8 A. Yes, headphones were in use before 1998.
` 9 Q. And did people receive information through
`10 headphones before 1998?
`11 A. Certainly, if you consider songs to be
`12 information, then, yes.
`13 Q. And in addition to songs, people could
`14 listen to speech before 1998 through a headphone;
`15 correct?
`16 A. That's correct.
`17 Q. People exercised before 1998; correct?
`18 A. Sure.
`19 Q. And people tracked distances that they ran
`20 before 1998?
`21 A. They would have tracked the distances that
`22 they ran before 1998, but I'm not aware of anybody
`23 who was using GPS to do it.
`24 Q. And people tracked the length of time that
`25 they ran before 1998; correct?
`
`Page 98
`
`Page 100
`
` 1 answer?
` 2 MR. RODRIGUES: Objection to form.
` 3 THE WITNESS: Any -- any system that
` 4 checked whether something was greater or lesser than
` 5 some value would be checking against the threshold.
` 6 BY MR. PETERMAN:
` 7 Q. Turning to Claim 1 of the '007 patent, the
` 8 last cause there is the "means for presenting the
` 9 athletic performance feedback data to an athlete."
`10 Do you see that?
`11 A. I'm looking -- I'm looking at it, yes.
`12 Q. Do you know what means for presenting the
`13 athletic performance feedback data is disclosed in
`14 the specification?
`15 MR. RODRIGUES: Objection to form, lacks
`16 foundation, calls for speculation.
`17 THE WITNESS: I wasn't asked to look at
`18 the -- the means for providing the feedback, but my
`19 recollection is it was through headphones, so an
`20 audio signal. I'd have to look back to be sure.
`21 BY MR. PETERMAN:
`22 Q. Were audio signals available in the art
`23 prior to the time of the invention of the '007
`24 patent?
`25 MR. RODRIGUES: Objection to form.
`
` 1 MR. RODRIGUES: Objection to form.
` 2 THE WITNESS: Yes, people would track
` 3 the length of their -- the time length of their
` 4 workout before 1998.
` 5 BY MR. PETERMAN:
` 6 Q. And people were able to compute how much
` 7 time was left in a workout before 1998; correct?
` 8 A. Sure.
` 9 Q. People could determine their average speed
`10 prior to 1998?
`11 MR. RODRIGUES: Objection to form.
`12 THE WITNESS: Can you be more specific
`13 about when they could determine their speed?
`14 BY MR. PETERMAN:
`15 Q. Could people have determined their speed
`16 at the end of a workout through calculating it by
`17 1998?
`18 A. At the end of the workout, once they had
`19 completed it and they knew how far they went and how
`20 long, then, yeah.
`21 Q. Could a person determine their average
`22 speed during the workout if they knew how far they
`23 had gone and how much time it took them?
`24 A. Are we talking about just runners?
`25 Q. Let's just focus on runners, yes.
`
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`

`

`Philips v.
`Fitbit
`
`Page 101
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 103
`
` 1 A. I mean if they could do math in their
` 2 head, they would have been able to, but I don't know
` 3 any -- I'm not aware of any device at the time that
` 4 would have been able to do that for them.
` 5 Q. So a marathoner, for instance, at the
` 6 halfway point of a marathon, could figure out their
` 7 average miles, average time per mile, knowing that
` 8 they were 13.1 miles into a marathon; correct?
` 9 A. Yeah, if they could do math in their head.
`10 Q. But a calculation as to times is a simple
`11 calculation, distance divided by time?
`12 A. I'm sorry. You broke up between
`13 "calculation" and "times." Could you repeat that?
`14 Q. The calculation of speed is just simply
`15 distance divided by time; is that correct?
`16 A. That's correct.
`17 MR. PETERMAN: All right. I'm going to
`18 switch topics here. If you want to take a lunch
`19 break, it's probably a decent time to do it. You
`20 know, I'd propose a half hour, but if you want it
`21 longer or shorter, I'm sure the court reporter wants
`22 to rest her fingers a bit. But let me know what
`23 you'd like to do.
`24 THE WITNESS: A half hour is fine.
`25 MR. PETERMAN: Okay. So it's 12:53 now.
`
` 1 BLACKSBURG, VIRGINIA
` 2 THURSDAY, JUNE 18, 2020
` 3 1:26 P.M.
` 4 ---o0o---
` 5
` 6 THE VIDEOGRAPHER: We are going back on
` 7 the record. The time is 1:26 p.m. Eastern Standard
` 8 time. Please proceed.
` 9
`10 EXAMINATION (Resumed)
`11 BY MR. PETERMAN:
`12 Q. Thanks, Dr. Martin, and welcome back.
`13 Did you discuss the deposition at all with
`14 anyone other than your wife over the lunch break?
`15 A. I told my son we were taking a lunch
`16 break.
`17 Q. All right. You got to get the whole
`18 family involved.
`19 So we're going to move on to the '233
`20 patent, and I'd like to mark that as our next
`21 exhibit, Exhibit 4.
`22 (Whereupon, Martin Exhibit 4 was
`23 marked for identification by the
`24 deposition reporter and is attached
`25 hereto.)
`
`Page 102
`
`Page 104
`
` 1 Why don't we reconvene at 1:25?
` 2 THE WITNESS: That sounds great.
` 3 MR. PETERMAN: Okay.
` 4 THE VIDEOGRAPHER: We are going off the
` 5 record. The time is 12:53 p.m. Eastern Standard
` 6 time.
` 7 (Whereupon, a luncheon recess was
` 8 held from 12:53 p.m. to 1:56 p.m.)
` 9 ///
`10 ///
`11 ///
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
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`23
`24
`25
`
` 1 BY MR. PETERMAN:
` 2 Q. Do you have the '233 patent handy?
` 3 A. Hang on while I open it. Okay. I have
` 4 the '233 patent open.
` 5 Q. What is your understanding of what the
` 6 subject matter of the '233 patent is?
` 7 MR. RODRIGUES: Objection to form.
` 8 THE WITNESS: So my understanding of the
` 9 '233 patent is that it's intended to be a personal
`10 device for communicating health and wellness
`11 information to -- onto a network.
`12 BY MR. PETERMAN:
`13 Q. You cut out a little bit. I'm not sure if
`14 Kristi had gotten that. But I -- you cut out a
`15 little bit before you said network for communicating
`16 health information, and then I think you --
`17 A. I said "health and wellness information."
`18 Q. Okay. Over a network? Is that what you
`19 said?
`20 A. Yes.
`21 Q. And what do you understand to be the
`22 inventive aspect over the prior art of the '233
`23 patent?
`24 MR. RODRIGUES: Objection to form.
`25 THE WITNESS: So the '233 patent provided
`
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`(26) Pages 101 - 104
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`

`

`Philips v.
`Fitbit
`
`Page 105
`
`Thomas Martin, PH.D.
`June 18, 2020
`Page 107
`
` 1 a way to take some sort of signal, some physiological
` 2 signal that's indicative of health and wellness and
` 3 communicate that to a care provider or somebody else
` 4 back on a network.
` 5 BY MR. PETERMAN:
` 6 Q. So is that a form of remote monitoring of
` 7 physiological signals?
` 8 MR. RODRIGUES: Objection to form.
` 9 THE WITNESS: Define what you mean by
`10 remote monitoring?
`11 BY MR. PETERMAN:
`12 Q. I believe that you said it would take a
`13 physiological signal and then -- of some health
`14 indication and then transmit that signal to someone
`15 else over a network? Is that your understanding of
`16 the '233 patent?
`17 MR. RODRIGUES: Objection to form.
`18 THE WITNESS: I think I also said "health
`19 and wellness," but, yes.
`20 BY MR. PETERMAN:
`21 Q. So then my question was whether that was
`22 an example of the ability to remotely monitor
`23 someone's physiological signals.
`24 MR. RODRIGUES: Objection to form.
`25 THE WITNESS: And that's why I was
`
` 1 an opinion regarding the language that appears in
` 2 Claim 1(c), for instance:
` 3 "A security mechanism
` 4 governing information
` 5 transmitted between the first
` 6 personal device and second
` 7 device."
` 8 Is that correct?
` 9 A. That's correct.
`10 Q. Okay. And what is your opinion as to how
`11 that term should be construed by the court?
`12 MR. RODRIGUES: Objection to form.
`13 THE WITNESS: So following Claim 1, the
`14 patent describes several different security
`15 mechanisms, okay? And so -- and in the abstract, it
`16 talks about multiple levels of security. So that
`17 was my opinion about what the security mechanism
`18 governing the information transmitted means, as I've
`19 described in my report. And I'm sorry (coughing).
`20 BY MR. PETERMAN:
`21 Q. So just at a more basic level just so
`22 we're on the same page, is it your opinion that
`23 security mechanism governing information transmitted
`24 between the first personal device and the second
`25 device means security mechanism controlling the
`
`Page 106
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`Page 108
`
` 1 asking -- sorry, Ruben.
` 2 MR. RODRIGUES: Go ahead.
` 3 THE WITNESS: I was asking what you meant
` 4 by remote monitoring. Can you be more specific
` 5 about what you mean by remote monitoring?
` 6 BY MR. PETERMAN:
` 7 Q. I mean someone who is not with the patient
` 8 or subject being able to receive the signals of that
` 9 subject's physiological state.
`10 A. That -- that would be one use of it, yes.
`11 Q. What are the other uses that you have
`12 gleaned from the patent regarding the invention?
`13 A. The data collected might also be put up on
`14 the network and could be used by the individual in
`15 question later on.
`16 Q. So you've opined in terms of claim
`17 construction in connection with the '233 patent;
`18 correct?
`19 A. So for the '233 patent, I was asked to
`20 look at the -- the definition around security -- the
`21 security mechanisms that govern the information
`22 that -- sorry -- that govern the information that
`23 was transmitted between devices.
`24 Q. Okay. And just so we're precise on the
`25 term here, my understanding is that you were giving
`
`