Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 1 of 80 Page ID #:2327
`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 1 of 80 Page ID #:2327
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`EXHIBIT 14
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`EXHIBIT 14
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 2 of 80 Page ID #:2328
`
`In The Matter Of:
`Philips v.
`Fitbit
`
`Thomas Martin, PH.D.
`June 18, 2020
`
`Min-U-Script® with Word Index
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`

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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 3 of 80 Page ID #:2329
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 3
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`Page 1
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` 1 UNITED STATES DISTRICT COURT
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` 2 FOR THE DISTRICT OF MASSACHUSETTS
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` 3
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` 4
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` 5 PHILIPS NORTH AMERICA LLC, ) Case No. 1:19-cv-11586-IT
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` 6 Plaintiff, )
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` 7 v. )
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` 8 FITBIT, INC., )
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` 9 Defendant. )
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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 REMOTE VIDEOTAPED DEPOSITION OF
`
`15 THOMAS L. MARTIN, PH.D.
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`16 June 18, 2020
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`17 10:02 a.m. Eastern Standard Time
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`18 Blacksburg, Virginia
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`19
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`20
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`21
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`22
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`23 REPORTED BY:
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`24 Kristi Caruthers
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`25 CLR, CSR No. 10560
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` 1 APPEARANCES:
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` 2
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` 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
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` 9 For Defendant:
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`10 PAUL HASTINGS LLP
` BY: CHAD PETERMAN, ESQ.
`11 200 Park Avenue
` New York, New York 10166
`12 212.318.6797
` chadpeterman@paulhastings.com
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`14
` ALSO PRESENT:
`15
` Christian Ruiz, Videographer
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` 3 Blacksburg, Virginia
` 4 June 18, 2020
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` 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.
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` 1 INDEX TO EXAMINATION
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` 2 WITNESS: THOMAS L. MARTIN, PH.D
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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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`Min-U-Script®
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`www.LexitasLegal.com/Premier Lexitas 888-267-1200
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`(1) Pages 1 - 4
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 4 of 80 Page ID #:2330
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 7
`
`Page 5
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` 1 INDEX TO EXHIBITS
`
` 2 THOMAS L. MARTIN, PH.D.
`
` 3 Thursday, June 18, 2020
`
` 4 Kristi Caruthers, CLR, CSR 10560
`
` 5
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` 6 MARKED: DESCRIPTION: PAGE:
`
` 7 Exhibit 1 Expert Disclosure of Thomas 17
` L. Martin, Ph.D.
` 8
` Exhibit 2 Patent No. US 6,013,007 65
` 9
` Exhibit 3 Geographical Information 81
`10 Systems FAQ
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`11 Exhibit 4 Patent No. US 7,088,233 B2 103
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`12 Exhibit 5 Patent No. US 6,976,958 B2 153
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`13 Exhibit 6 Patent No. US 8,277,377 159
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`14
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`15
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`16
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`17 QUESTIONS UNANSWERED BY DEPONENT:
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`18 PAGE: LINE:
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`19 17 18
` 138 6
`20
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` 1 Lardner on behalf of -- on behalf of Philips and
` 2 Dr. Martin.
` 3 THE VIDEOGRAPHER: Our court reporter
` 4 today is Kristi Caruthers, representing Lexitas.
` 5 The court reporter will now swear in the witness.
` 6
` 7 THOMAS L. MARTIN, PH.D.,
` 8 called as a deponent and sworn in by
` 9 the deposition reporter, was examined
`10 and testified as follows:
`11
`12 DEPOSITION REPORTER: Raise your right
`13 hand, please.
`14 Do you solemnly swear that the testimony
`15 you are about to give in this matter shall be the
`16 truth, the whole truth, and nothing but the truth,
`17 so help you God?
`18 THE WITNESS: Yes, I do.
`19 DEPOSITION REPORTER: Please commence.
`20 THE VIDEOGRAPHER: Thank you. Please
`21 proceed.
`22 ///
`23 ///
`24 ///
`25 ///
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`Page 6
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`Page 8
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` 1 BLACKSBURG, VIRGINIA
` 2 THURSDAY, JUNE 18, 2020
` 3 10:06 A.M. EASTERN STANDARD
` 4 ---o0o---
` 5
` 6 THE VIDEOGRAPHER: We are now on the
` 7 record. Today's date is June 18, 2020, and the
` 8 timeis 10:06 a.m. Eastern Standard time.
` 9 This is the video deposition of Dr. Thomas
`10 L. Martin in the matter of "Philips North America
`11 LLC versus Fitbit, Inc.," filed in the United States
`12 District Court for the District of Massachusetts,
`13 Case Number 1:19-cv-11586-IT.
`14 This deposition is taking place via Web
`15 video conference with all participants attending
`16 remotely due to the Covid-19 pandemic.
`17 My name is Christian Ruiz. I am the
`18 videographer representing Lexitas.
`19 Would counsel on the conference please
`20 identify yourselves and state whom you represent,
`21 beginning with the questioning attorney.
`22 MR. PETERMAN: Good morning. Chad
`23 Peterman of Paul, Hastings on behalf of Defendant
`24 Fitbit.
`25 MR. RODRIGUES: Ruben Rodrigues of Foley &
`
` 1 EXAMINATION
` 2 BY MR. PETERMAN:
` 3 Q. Good morning, Dr. Martin. A pleasure to
` 4 meet you virtually.
` 5 A. Good morning.
` 6 Q. As you know, you're here for your
` 7 deposition today and we'll go through the ground
` 8 rules of it.
` 9 You know, I know that we are in a
`10 different technological environment doing this
`11 remotely. So, obviously, if there's any technical
`12 difficulties or you can't hear something that I've
`13 said or there's background noise or anything like
`14 that, please speak up or flag me down, and we'll
`15 certainly work -- work through that.
`16 I know that dealing with exhibits is a
`17 little bit more difficult in a situation like this,
`18 and so, obviously, we will work through those
`19 issues, and to the extent, you know, you need more
`20 time for any additional documentation from me,
`21 please let me know.
`22 Is that fair?
`23 A. That's fine.
`24 Q. Would you please state your name for the
`25 record.
`
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`(2) Pages 5 - 8
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 5 of 80 Page ID #:2331
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 11
`
`Page 9
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` 1 A. Thomas L. Martin.
` 2 Q. And what city and state do you live in?
` 3 A. I live in Blacksburg, Virginia.
` 4 Q. Are you currently employed?
` 5 A. Yes, I am.
` 6 Q. Who are you employed by?
` 7 A. Virginia Tech.
` 8 Q. And what is your position at Virginia
` 9 Tech?
`10 A. I'm a professor in electrical and computer
`11 engineering.
`12 Q. And do you have any field of specialty
`13 within electrical and computer engineering?
`14 A. My field of specialty is wearable
`15 computing and technologies, electronic textiles,
`16 basic computing environments and interdisciplinary
`17 design teams.
`18 Q. What does wearable computing mean?
`19 A. Wearable computing is any sort of
`20 computing technology, sensing technology, that's
`21 meant to be worn.
`22 Q. Is a Fitbit watch wearable computing
`23 technology?
`24 A. I would consider it to be, yes.
`25 Q. What other examples of wearable computing
`
` 1 A. Okay. So I was still in graduate school
` 2 then, still working on wearable computing, and --
` 3 sorry. When I asked what year, what was my
` 4 involvement? Was that the question?
` 5 Q. Yes. What was your -- I guess the level
` 6 of your expertise, your involvement in wearable
` 7 computing by 1998.
` 8 A. Yes. So --
` 9 MR. RODRIGUES: Objection.
`10 You may answer.
`11 THE WITNESS: Okay. So I was still in
`12 graduate school. I was in one of the two groups in
`13 the United States working on wearable computing.
`14 I was already becoming involved with the
`15 International Symposium on Wearable Computers, which
`16 is the leading symposium on wearable computing, and
`17 I had worked on a variety of systems at Carnegie
`18 Mellon. And by systems, I mean wearable computing
`19 systems.
`20 BY MR. PETERMAN:
`21 Q. Had you worked on any wearable computing
`22 systems related to exercise back in 1998?
`23 A. Not exercise by 1998.
`24 Q. Had you been involved in wearable
`25 computing relating to health monitoring back in
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`Page 10
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`Page 12
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` 1 technologies are you aware of now?
` 2 A. So there's a lot of work in smart garments
` 3 where the electronics and technology is in the
` 4 garment itself.
` 5 I've been working in wearable computing
` 6 since the early '90s and, you know, we built fanny
` 7 pack computers and things like that. So any sort of
` 8 technology that you would wear on your person.
` 9 Q. You said you started with wearable
`10 computing technology in the 1990s.
`11 Can you just give me a little bit of
`12 background for what work you were doing in the 1990s
`13 in that field?
`14 A. Sure. So when I went to graduate school
`15 at Carnegie Mellon in 1992, I was brought in to work
`16 on a wearable computing project. That involved --
`17 it had a couple of applications. One was for making
`18 wiring harnesses for Boeing for the workers who did
`19 the wiring harnesses, and the other was a campus
`20 tour guide to guide people around the Carnie Mellon
`21 campus.
`22 Q. And in the 1998 time frame, what was your
`23 experience at that point with wearable computing?
`24 A. I'm sorry. Did you say 1998?
`25 Q. Yes.
`
` 1 1998?
` 2 A. No.
` 3 Q. Approximately when was the first time that
` 4 you had direct experience in wearable computing for
` 5 exercise?
` 6 A. It would have been around the time I went
` 7 to Huntsville, which was '99 or 2000.
` 8 Q. And at that point, what experience did you
` 9 get in wearable computing for exercise?
`10 A. We were looking at heart rate monitoring.
`11 Q. When did the first heart rate monitor for
`12 wearable computing come out?
`13 MR. RODRIGUES: Objection to form.
`14 THE WITNESS: There -- off the top of my
`15 head, people were already -- I'd have to look back
`16 and see, but people were already doing like heart
`17 rate straps and things like that for exercise at the
`18 time I started working in it.
`19 BY MR. PETERMAN:
`20 Q. Prior to 1998, were there already heart
`21 rate straps for exercise?
`22 MR. RODRIGUES: Objection.
`23 THE WITNESS: I'm sorry. Heart rate --
`24 BY MR. PETERMAN:
`25 Q. Prior to 1998, was there already heart
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 6 of 80 Page ID #:2332
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 15
`
`Page 13
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` 1 rate monitors using straps for exercises?
` 2 MR. RODRIGUES: Same objection.
` 3 THE WITNESS: (Inaudible.)
` 4 BY MR. PETERMAN:
` 5 Q. I didn't hear you, Doctor. I note
` 6 Mr. Rodrigues's objection, but I didn't hear your
` 7 answer.
` 8 A. I believe there were. I'd have to go back
` 9 to look to be sure, but I believe there were.
`10 Q. Have you ever been deposed before?
`11 A. No, I have not.
`12 Q. So, as you've already surmised and I'm
`13 sure you've been prepped, I'm just going to be
`14 asking you a series of questions today. If you
`15 don't understand my question, certainly ask me for
`16 clarification, and I'll do my best to clarify.
`17 From time to time, your counsel may raise
`18 an objection, but if your counsel does not instruct
`19 you not to answer, then I still expect an answer for
`20 my question.
`21 A. Okay.
`22 Q. If you respond to my question, I will
`23 assume that you have understood it, and if you need
`24 to take a break at any point in time, please let me
`25 know and we'll certainly go off the record.
`
` 1 matter?
` 2 A. No, I have not.
` 3 Q. Do you generally call -- generally recall
` 4 what the subject of your expert report in the TomTom
` 5 matter was?
` 6 A. It was about whether you could calculate
` 7 distance from accelerometers and other sorts of
` 8 inertial measurements.
` 9 Q. And did you reach a conclusion as to
`10 whether or not you could calculate distance from
`11 accelerometers in that report?
`12 A. I'd have to go back to look to give the
`13 exact conclusion, but my conclusion was that getting
`14 the exact distances as specified in that patent
`15 wouldn't have been possible with accelerometers.
`16 Q. And did you prepare that report and file
`17 it in 2017?
`18 A. I believe that's correct, yes.
`19 Q. Did you sit for a deposition in connection
`20 with that report?
`21 A. No, I did not.
`22 Q. Do you know what became of the matter
`23 between TomTom and the company that you hadn't heard
`24 of before?
`25 A. Actually, I don't.
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`Page 14
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`Page 16
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` 1 Is that fair?
` 2 A. That's fair.
` 3 Q. And I know you haven't testified at
` 4 deposition before.
` 5 Have you ever testified at a trial before?
` 6 A. No, I have not.
` 7 Q. Have you ever submitted an expert
` 8 declaration or report in any other litigation
` 9 besides the current litigation that we're in this
`10 deposition for?
`11 A. Yes, I have.
`12 Q. And in what matter did you submit an
`13 expert declaration or report?
`14 A. It was -- the law firm was Baker
`15 something, and it was -- I'd have to go back and
`16 look. It was TomTom versus Smart Wearable
`17 Technology. It's some little company that I hadn't
`18 heard of.
`19 Q. And that report that you submitted, was
`20 that in connection with an interparty's review on a
`21 patent?
`22 A. Yes, it was.
`23 Q. Other than that report in connection with
`24 an interparty's review on a patent for TomTom, have
`25 you ever submitted another expert report in a patent
`
` 1 Q. And is the -- the company that was on the
` 2 other side of TomTom, was that Smart Wearable
` 3 Technologies?
` 4 A. I'd have to go back and look at it. I
` 5 think that was the name, yes.
` 6 Q. And after you filed that report in
` 7 connection with TomTom versus Smart Wearable
` 8 Technologies, did you discover any errors or
` 9 corrections that you wanted to make in that report?
`10 A. No.
`11 Q. So in the documents that I sent you via
`12 chat, the first document was titled
`13 "Martindisclosure.pdf."
`14 Do you see that?
`15 A. Yes, and I've opened it.
`16 THE VIDEOGRAPHER: Counsel, would you like
`17 me to share it on the screen?
`18 MR. PETERMAN: All right. Shortly, yeah.
`19 Yeah, I guess just be prepared to do it.
`20 THE VIDEOGRAPHER: Okay. I am.
`21 MR. PETERMAN: Thank you. I'd like the
`22 court reporter to mark the Martindisclosure.pdf as
`23 Exhibit 1.
`24 ///
`25 ///
`
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`(4) Pages 13 - 16
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`

`

`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 7 of 80 Page ID #:2333
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 19
`
`Page 17
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` 1 (Whereupon, Martin Exhibit 1 was
` 2 marked for identification by the
` 3 deposition reporter and is attached
` 4 hereto.)
` 5 BY MR. PETERMAN:
` 6 Q. So you have Exhibit 1 there.
` 7 Can you just tell me: Do you recognize
` 8 Exhibit 1?
` 9 A. Yes, I do.
`10 Q. And Exhibit 1 is titled "Expert Disclosure
`11 of Dr. Thomas L. Martin, Ph.D.," dated June 5th,
`12 2020; correct?
`13 A. Yes, that's correct.
`14 Q. It may be self-evident, but can you just
`15 tell me what Exhibit 1 is?
`16 A. It's the expert disclosure that I've
`17 written for this matter.
`18 Q. Did your counsel discuss Exhibit 1 with
`19 you at any point before this deposition?
`20 MR. RODRIGUES: Objection to form.
`21 I'll instruct you not to answer with
`22 respect to the details of any discussions with
`23 counsel.
`24 BY MR. PETERMAN:
`25 Q. You can answer "yes" or "no" as to whether
`
` 1 please?
` 2 Q. I'll -- I'll take a different track here.
` 3 Did you draft the document that's
` 4 presented here as Exhibit 1?
` 5 A. I was given an initial draft from counsel
` 6 and then worked on it myself.
` 7 Q. And did you review Exhibit 1 before
` 8 signing it?
` 9 A. Yes, I did.
`10 Q. And did you agree with the statements that
`11 you made in Exhibit 1 at the time you signed it?
`12 A. Yes, I did.
`13 Q. And since the time that you signed it, are
`14 there any corrections that you wish to make with
`15 respect to Exhibit 1?
`16 A. There was a place that was highlighted
`17 that should have been noted as being -- there was a
`18 quote where the emphasis was not in the original
`19 quote, and I should have noted that there was some
`20 highlighting there. I'd have to look through it to
`21 find it.
`22 Q. Other than, I guess, a typographical font
`23 type error, is there anything else that you noticed
`24 that's incorrect about Exhibit 1?
`25 A. Off the top of my head, no.
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`Page 18
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`Page 20
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` 1 or not you ever discussed Exhibit 1 with your
` 2 counsel.
` 3 A. Yes.
` 4 Q. How much time do you estimate that you
` 5 took to prepare Exhibit 1?
` 6 A. I'd have to look back in my records to be
` 7 sure of the exact time, but probably between 10 and
` 8 15 hours.
` 9 Q. How was Exhibit 1 prepared?
`10 MR. RODRIGUES: Again, instruct you not to
`11 get into the details of the drafting of the expert
`12 report from any communications with counsel.
`13 BY MR. PETERMAN:
`14 Q. Can you answer that question about how
`15 Exhibit 1 was prepared?
`16 A. Sorry. Since this is my first deposition,
`17 he's instructed me not -- my -- Ruben's instructed
`18 me not to answer with respect to the details.
`19 MR. RODRIGUES: Yeah. And if you can't
`20 answer without violating my instruction, then I
`21 think you don't provide an answer.
`22 BY MR. PETERMAN:
`23 Q. Do you believe you can answer without
`24 violating Mr. Rodrigues's instructions?
`25 A. Would you ask the question again, Chad,
`
` 1 Q. Beyond the opinions that are expressed in
` 2 Exhibit 1, are you planning to express any other
` 3 opinions in this litigation?
` 4 A. Yes. You know, I was asked to provide the
` 5 opinions that are -- on the matters that are in the
` 6 disclosure, but I'd be happy to -- to look at other
` 7 aspects of this case and provide opinions for those.
` 8 Q. So what additional opinions are you
` 9 planning to provide in connection with this
`10 litigation?
`11 MR. RODRIGUES: Objection to form, lacks
`12 foundation, calls for speculation.
`13 BY MR. PETERMAN:
`14 Q. You may answer the question.
`15 A. I'm not planning on providing any -- like,
`16 there aren't particular things I've been asked to
`17 provide an opinion on beyond those that are in the
`18 disclosure.
`19 Q. Are you planning to testify at the claim
`20 construction hearing in this matter?
`21 MR. RODRIGUES: Calls for -- objection;
`22 calls for speculation, lacks foundation.
`23 THE WITNESS: If I'm asked to, I will.
`24 BY MR. PETERMAN:
`25 Q. At this point, have you been asked to
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 8 of 80 Page ID #:2334
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 23
`
`Page 21
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` 1 testify at the claim construction hearing in this
` 2 matter?
` 3 A. I don't recall being asked to testify.
` 4 Q. Are you planning on providing any opinions
` 5 regarding infringement of Fitbit's products in
` 6 connection with this matter?
` 7 MR. RODRIGUES: Objection; calls for
` 8 speculation and lacks foundation.
` 9 THE WITNESS: Again, in terms of planning,
`10 you know, I have no plans other than what I'm asked
`11 to do in the future.
`12 BY MR. PETERMAN:
`13 Q. Are you planning on providing any
`14 invalidity opinions beyond what you've expressed in
`15 Exhibit 1 in this litigation?
`16 MR. RODRIGUES: Objection to form, lacks
`17 foundation, calls for speculation.
`18 THE WITNESS: Again, I'm not -- my plans
`19 are to respond for opinions as I'm asked for them.
`20 BY MR. PETERMAN:
`21 Q. Are you planning on attending trial if it
`22 occurs in this litigation?
`23 MR. RODRIGUES: Objection; calls for
`24 speculation.
`25 THE WITNESS: As I've said before, if I'm
`
` 1 A. No, not that I recall.
` 2 Q. Have you ever used any wearable technology
` 3 from Philips?
` 4 A. I might have tried some things that were
` 5 being demoed at conferences.
` 6 Q. Have you ever used any wearable technology
` 7 from Fitbit?
` 8 A. Similarly, I've -- I might have tried
` 9 things that were being demoed at conferences.
`10 Q. And beyond the possibility of trying
`11 something demoed at a conference, you have no other
`12 recollection of potentially using either a Philips
`13 or a Fitbit wearable?
`14 A. No, I don't have any recollection of that.
`15 Q. What are the primary conferences in the
`16 wearable technology space that you attend?
`17 A. So the conference that I mentioned
`18 earlier, the International Symposium on Wearable
`19 Computers, ISWC is the abbreviation, and it's -- for
`20 the last several years -- I'd have to look back when
`21 we joined together -- it's been in conjunction with
`22 another conference called UbiComp, ubiquitous
`23 computing.
`24 There's an industrial conference called
`25 Smart Fabrics which recently changed its name to
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`Page 22
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`Page 24
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` 1 asked to, I -- I will attend.
` 2 BY MR. PETERMAN:
` 3 Q. What experience do you have with using or
` 4 studying Fitbit products, apart from this
` 5 litigation?
` 6 A. I've considered a Fitbit for my personal
` 7 use, but other than that, I haven't looked at them
` 8 closely.
` 9 Q. Have you ever used a Fitbit for your
`10 personal use?
`11 A. No, I have not.
`12 Q. Have you personally used a wrist-worn
`13 activity tracker?
`14 A. I've tried others people's on, but I don't
`15 have one of my own.
`16 Q. Have you ever had one of your own?
`17 A. No.
`18 Q. Have you ever studied Philips's Activity
`19 trackers?
`20 A. No, I have not.
`21 Q. Have you ever owned a Philips Activity
`22 Tracker?
`23 A. No.
`24 Q. Have you ever owned any wearable
`25 technology from Philips?
`
` 1 WEAR, which I regularly attend.
` 2 I would have to look back through my
` 3 records. There's quite a number of other
` 4 conferences around sensing on the body and workshops
` 5 at larger conferences around sensing on the body
` 6 that I've attended over the years, but without
` 7 looking back at my records, it would be hard for me
` 8 to say.
` 9 Q. Approximately when was the first time you
`10 attended an ISWC conference?
`11 A. 1998.
`12 Q. Were ISWC conferences in existence before
`13 1998?
`14 A. It started in 1997, if I recall correctly.
`15 Q. The second conference you mentioned was
`16 UbiCon (sic).
`17 Can you just spell out the acronym for me?
`18 A. It's UbiComp, so its U-b-i-C-o-m-p.
`19 Q. Do you know what that stands for?
`20 A. Ubiquitous computing.
`21 Q. And what does ubiquitous computing mean?
`22 A. Ubiquitous computing is this notion that
`23 computing will disappear into the environment and be
`24 all around us, on our clothing, in the -- in the
`25 built environment, other places as well. In the
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`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 9 of 80 Page ID #:2335
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 27
`
`Page 25
`
` 1 trade press, it would be what's properly known as
` 2 IoT is -- is a large part of that.
` 3 Q. When was the first UbiComp conference that
` 4 you attended?
` 5 A. I'd have to look back at my records to be
` 6 sure. It would have been in the 2000s, but I don't
` 7 recall exactly.
` 8 Q. And what about -- and when was the first
` 9 WEAR symposium or conference that you attended?
`10 A. So as I said before, WEAR was originally
`11 called Smart Fabrics. Got it started later.
`12 Again, I'd have to look back at my records
`13 to be sure, but it's going to be in the 2005, 2007
`14 timeframe.
`15 Q. In the 1998 timeframe, what were the
`16 leading academic publications for wearable
`17 technologies?
`18 A. So ISWC, I-S-W-C, that conference was the
`19 first wearable computing conference, the academic
`20 wearable computing conference to get started, and my
`21 advisor was one of the -- the people who founded it.
`22 And in fact, that 1998 conference, I
`23 handled most of the local arrangements, so I was
`24 involved in the organization of it.
`25 There weren't dedicated -- because it was
`
` 1 that don't appear here. But other than that, it's
` 2 accurate and complete.
` 3 Q. So it captures at least all of your
` 4 earliest -- earliest publications; is that correct?
` 5 A. Yes, that's correct.
` 6 Q. Okay. What did you do to prepare for your
` 7 deposition today?
` 8 MR. RODRIGUES: Caution the witness not to
` 9 reveal the details of communications with counsel or
`10 details about the drafting of the report. But,
`11 otherwise, you can answer.
`12 THE WITNESS: Okay. Since this is my
`13 first deposition, Ruben explained to me how -- how
`14 the situation would work.
`15 MR. RODRIGUES: Nope, nope, nope.
`16 don't --
`17 BY MR. PETERMAN:
`18 Q. I'll do this a little bit more step-wise.
`19 Did you meet with your counsel to prepare
`20 for your deposition today? And you can answer it
`21 "yes" or "no."
`22 A. Yes.
`23 Q. Approximately how long did you meet with
`24 your counsel in order to prepare for your deposition
`25 today?
`
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`Page 28
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` 1 a new field in 1998, there weren't particular
` 2 venues, particular journals that were dedicated to
` 3 wearable and ubiquitous computing, and that
` 4 conference was one of the first venues for
` 5 publication.
` 6 Before that, you would have had to have
` 7 found a venue that was dedicated to some larger
` 8 computing issue and publish in that.
` 9 Q. And attached to your expert disclosure,
`10 you have Exhibit A, which is your CV.
`11 A. Yes.
`12 Q. Is this a true and accurate copy, to the
`13 best of your understanding, of your CV?
`14 A. My apologies for my delay. My Touchpad is
`15 misbehaving this morning. I can't actually swipe,
`16 so it's taking me longer to go through documents
`17 than normal.
`18 Q. No problem. Take your time.
`19 A. Yes, this is -- this is my CV.
`20 Q. As far as the -- your publications and
`21 your writing skill, is this a compete and accurate
`22 copy of your publications?
`23 A. It's relatively complete. I don't know
`24 when this was updated. I think I might have a
`25 couple more publications in the last several months
`
` 1 A. I'd have to look back at my records to be
` 2 sure, but a couple hours.
` 3 Q. Did you review any documents in preparation
` 4 for today's deposition?
` 5 A. Yes.
` 6 Q. Did you review any documents that are not
` 7 cited in your expert declaration in preparation for
` 8 today's deposition?
` 9 A. Can you say more by what you mean about
`10 cited?
`11 Q. Okay. Your -- I'll take this step by
`12 step.
`13 Did you review your expert declaration in
`14 connection with preparing for today's deposition?
`15 A. Yes, I did review it.
`16 Q. Did you review the patents-in-suit in
`17 connection with preparing for today's deposition?
`18 A. Yes.
`19 Q. In your expert declaration, Exhibit 1, you
`20 reference various documents, publications, websites,
`21 et cetera.
`22 Did you review any documents that aren't
`23 referenced within your expert declaration in
`24 preparation for today's deposition?
`25 (Document reviewed by witness.)
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`

`Case 2:19-cv-06301-AB-KS Document 80-2 Filed 07/09/20 Page 10 of 80 Page ID #:2336
`Thomas Martin, PH.D.
`Philips v.
`June 18, 2020
`Fitbit
`Page 31
`
`Page 29
`
` 1 THE WITNESS: Sorry. I mean looking
` 2 through the document -- again, I'm having trouble
` 3 scrolling -- I'm looking through the document for
` 4 the list of -- the list of materials, and I'm not
` 5 seeing it.
` 6 BY MR. PETERMAN:
` 7 Q. You're looking at the 45-page PDF, the
` 8 List of Materials Considered --
` 9 A. Yes.
`10 Q. -- on Page 32 of the PDF?
`11 A. Okay. Oh, I just didn't scroll far enough
`12 down the page. My apologies.
`13 I don't recall looking at anything other
`14 than these, off the top of my head.
`15 Q. So, essentially, stay on this list of
`16 materials considered.
`17 So the first four documents here are the
`18 four patents-in-suit.
`19 Do you see that?
`20 A. Yes.
`21 Q. And did you review all four patents-in-suit
`22 in connection with the opinions that you express in
`23 this declaration?
`24 A. Yes, I did.
`25 Q. The next four documents are the certified
`
` 1 history in your expert declaration.
` 2 Why? Why is that?
` 3 A. I didn't notice anything there that seemed
` 4 particularly -- particularly interesting. Might
` 5 have been some -- some things in the '233 patent,
` 6 but they -- things seemed to be relatively covered
` 7 in the patents themselves.
` 8 Q. Did you look at the file histories for any
` 9 of the patents that were related to any of the four
`10 patents-in-suit?
`11 MR. RODRIGUES: Objection to form.
`12 BY MR. PETERMAN:
`13 Q. Do you understand my question?
`14 A. So you're asking not these four patents,
`15 but the other patents that were -- that were cited
`16 in these patents? Is that your question?
`17 Q. Correct. And I'll be a little more
`18 precise.
`19 Do you understand that some of the four
`20 patents-in-suit have other patents that are part of
`21 their patent family?
`22 MR. RODRIGUES: Objection to form.
`23 THE WITNESS: I did notice in reading them
`24 that they -- they cited other patents that they were
`25 built upon.
`
`Page 30
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`Page 32
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` 1 file histories for the four patents-in-suit.
` 2 Do you see that?
` 3 A. Yes, I see those.
` 4 Q. Did you review the certified file
` 5 histories for all four patents-in-suit?
` 6 A. In terms of preparing for this
` 7 deposition -- sorry. I can't remember what your
` 8 original question was. Would you repeat that?
` 9 Q. In connection with preparing your expert
`10 declaration, did you review --
`11 A. Oh.
`12 Q. -- all four of the certified file
`13 histories?
`14 A. Yeah. So I skimmed them, some of them. I
`15 looked at some of them more closely than others,
`16 but, yes, I -- I looked at all of them.
`17 Q. Do you recall which file histories you
`18 looked at more closely than others?
`19 A. The two that are related to my
`20 declaration, the '377 and the '233 patent.
`21 Q. So I think just for the -- for clarity of
`22 the recor