Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 1 of 6 Page ID #:3435
`
` FRANK VAN HOORN 8/21/2020
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`Page 1
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`Page 3
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` INDEX OF EXHIBITS (cont.)
`EXHIBITS PAGE
`No. 12 - Communication from Mr. van Hoorn to
` Mr. Sony/Panasonic . . . . . . . . . . 53
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`No. 13 - The GPS CrossTracker flyer . . . . . . 54
`
`No. 14 - Rough Draft uncertified transcript of
` Frank van Hoorn, 8-19-20 . . . . . . . 56
`No. 15 - Press Release from Liquid Spark, LLC,
` 5-03-00. . . . . . . . . . . . . . . . 57
`
`No. 16 - Photographs of Mr. Root, the wood
` mock-up, a drawing of the prototype. . 58
`
` oOo
`
`(Exhibits electronically attached to the transcript.)
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`Page 4
`
`PHILIPS NORTH AMERICA, LLC, )
` )
` Plaintiff, )
` )
` v. ) Case No.
` ) 2:19-cv-06301-AB-KS
` )
`GARMIN INTERNATIONAL, INC., )
`and GARMIN, LTD. )
` )
` Defendant. )
`____________________________)
`
` REMOTE VIDEO DEPOSITION OF FRANK VAN
`HOORN, produced, sworn and examined on Friday,
`August 21, 2020, between the hours of 8:54 a.m. and
`10:53 a.m., Pacific Standard Time, of that day, via
`Zoom, before Connie McCarthy, CCR, RMR, CRR.
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`PHILIPS NORTH AMERICA, LLC, )
` )
` Plaintiff, )
` )
` v. ) Case No.
` ) 2:19-cv-06301-AB-KS
` )
`GARMIN INTERNATIONAL, INC., )
`and GARMIN, LTD. )
` )
` Defendant. )
`____________________________)
`
` REMOTE VIDEO DEPOSITION OF FRANK VAN HOORN
` Taken on Behalf of Defendant
` Friday, August 21, 2020
`
`Page 2
`
` INDEX OF EXAMINATION
`FRANK VAN HOORN PAGE
`Examination by Ms. Lamkin. . . . . . . . . . . . 7
`
` oOo
`
` INDEX OF EXHIBITS
`EXHIBITS PAGE
`No. 1 - Letter, Foley & Lardner/Eley O.
` Thompson, to Mr. Frank van Hoorn,
` 8-12-19. . . . . . . . . . . . . . . . 11
`No. 2 - United States Patent 6,013,007,
` January 11, 2000 . . . . . . . . . . . 13
`
`No. 3 - "A New Digital Consumer Electronic
` Device" presentation to Sony
` Electronic . . . . . . . . . . . . . . 23
`
`No. 4 - "The GPS CrossTracker" presentation
` to imagiworks. . . . . . . . . . . . . 29
`No. 5 - Garmin GPS II Plus owner's manual. . . 35
`No. 6 - Photo of Mr. van Hoorn running with
` the device in Fiji . . . . . . . . . . 39
`
`No. 7 - "The Ironman Performance Monitor"
` presentation to KLH Audio Systems. . . 40
`No. 8 - "The Nike CrossTracker" presentation
` to Nike. . . . . . . . . . . . . . . . 42
`
`No. 9 - The Runner's GPS - Preliminary
` Specifications, 7-25-97. . . . . . . . 48
`No. 10 - The Personal Tracker - Preliminary
` Specifications, 8-04-97. . . . . . . . 51
`
`No. 11 - Communication from Mr. van Hoorn to
` Erik . . . . . . . . . . . . . . . . . 51
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`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`1 (Pages 1 to 4)
`
`Fax: 314.644.1334
`
`

`

`Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 2 of 6 Page ID #:3436
`
` FRANK VAN HOORN 8/21/2020
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`right in the middle of a series of questions that are
`building on each other, what we call in music riffs,
`then I'll ask to finish the riff before we break. Is
`that okay?
` A. That's okay, yes.
` Q. And I'm a very straightforward attorney.
`I'm not going to play games with you. So I'll ask a
`direct, non-evasive question, and I expect a direct
`non-evasive answer. Is that acceptable?
` A. Of course.
` Q. At any point if you don't understand my
`question -- for example, you have a deep engineering
`background. I do not. I majored in philosophy. So
`if you don't understand my question, will you please
`ask me to clarify?
` A. I will.
` Q. Okay. Did you meet with -- and don't give
`me the substance of the conversation -- but did you
`meet with Foley in preparation for your deposition on
`Wednesday?
` A. I did.
` Q. How many hours did you meet with Foley in
`preparation for your deposition on Wednesday?
` A. Three hours, more or less.
` Q. Did you look at any documents during your
`
`Page 10
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`preparation?
` A. Only the GPS patent.
` Q. Okay. Your patent that we'll call in this
`deposition the '007 patent?
` A. Yes.
` Q. And did you meet with Foley in between your
`last deposition and this deposition?
` A. I did, yes.
` Q. How long did you meet with Foley between
`Wednesday and this morning?
` A. About a half hour.
` Q. Did you look at any documents during that
`deposition -- sorry, during that preparation?
` A. I did not.
` Q. Okay. What we're going to do during this
`deposition, Mr. Van Hoorn, is I'm going to put drag
`and drop documents into the Chat function on Zoom,
`and those documents will go to both you and your
`attorney. Is that what happened last Wednesday?
` A. Yes and no. I mean they had them in Chat,
`but then the videographer pulled them out onto the
`screen.
` Q. That's normally how this service does it.
`I don't like to do it that way because I feel like I
`have an ethical obligation to allow you to look at
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`anything in the document you want to look at. So I'm
`not going to have them pull up the screen and do the
`fancy pull-around. Because again, I want you to be
`able to look at anything in the document you want to
`look at. Okay?
` A. Okay.
` Q. I'm going to mark, I hope -- yeah. This
`might be slow, but I think you'll prefer to have it
`in your hands.
` (Whereupon, Exhibit No. 1 was marked for
`identification)
`BY MS. LAMKIN:
` Q. I'm going to mark as Exhibit 1 a document
`bearing Bates range GAR 0009521 to 9526.
` Mr. van Hoorn, please take a look at that
`document. Take as long as you want. And when you're
`ready to answer questions about that document, let me
`know.
` A. Okay.
` Q. It should be in your Chat folder.
` A. I have to download to open it, correct?
` Q. Correct.
` J.P., if you ever don't get a document,
`please just indicate and I can email it or find
`another way.
`
`Page 12
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` MR. CIARDULLO: Sure, that's fine. I'm
`downloading it myself.
`BY MS. LAMKIN:
` Q. This way takes a little longer. But again,
`I think it's more fair to the deponent to be able to
`look at the whole document. No criticism of the depo
`service intended.
` A. Okay.
` Q. What is this document, Mr. van Hoorn?
` A. This is the agreement between myself and
`the counsel.
` Q. And when was it signed?
` A. About a year ago, October 27th --
`August 27th, 2019.
` Q. Okay. Regarding Provision 1, the scope of
`your engagement, what do you understand the scope of
`your engagement to be?
` A. I just advise the lawyers about my
`involvement on the patent development, how it came
`about.
` Q. Just to make sure I understand, you
`understand your role to be advising your lawyers
`about a patent and how it came about?
` A. Yes.
` Q. Do you understand you have any other duties
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`3 (Pages 9 to 12)
`
`Fax: 314.644.1334
`
`

`

`Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 3 of 6 Page ID #:3437
`
` FRANK VAN HOORN 8/21/2020
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`in the scope of your engagement than advising about
`the '007 patent?
` A. I am to testify or be deposed or whatever
`was required for this potential lawsuit.
` Q. On any other subjects other than the '007?
`Are you to testify or provide advice on anything
`other than the '007?
` A. No.
` Q. And if you look on the last page of this
`document, Mr. van Hoorn, ending in 9526, your fee
`schedule, do you understand Foley to be paying you
`$375 an hour to advise regarding the '007 patent?
` A. That's my understanding, yes.
` (Whereupon, Exhibit No. 2 was marked for
`identification)
`BY MS. LAMKIN:
` Q. I'm going to mark as Exhibit 2 a
`document -- a patent document with the
`number 6,013,007 for the '007 patent.
` Same here, Mr. van Hoorn: Just download
`the document. Take your time. When you're ready to
`answer questions about the document, let me know.
` A. Okay.
` Q. Mr. van Hoorn, do you recognize this
`document?
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` A. Yes, I do.
` Q. What is it?
` A. This is the official patent '007.
` Q. Okay. And is this the patent that Foley
`hired you as a consultant to provide advice
`regarding?
` A. Yes, it is.
` Q. Mr. van Hoorn, if you please look at
`Figures 1A and 1B, who drew those figures?
` A. I did.
` Q. And if you look please at Figures 2 and 3,
`did you also draw Figures 2 and 3?
` A. Yes, I did.
` Q. If you please turn to Figure 2,
`Mr. van Hoorn. We see in Figure 2, I believe, the
`device, what you would later call the Athlete's GPS,
`marked 101; is that correct?
` A. That is correct.
` Q. And then at the top you see headphones
`marked 202; is that correct?
` A. That is correct.
` Q. What is the purpose of the baseball cap
`marked 201?
` A. To keep the sun out of her face.
` Q. Any other purpose?
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` A. We were also looking at embedding the
`antenna in the baseball cap unit.
` Q. The GPS unit?
` A. Excuse me?
` Q. I'm sorry, I spoke over you. You thought
`about embedding the GPS antenna in the baseball cap?
` A. That's correct.
` Q. And if you look at Figure 3, what is the
`purpose of the device labeled 301?
` A. 301 is the top of the antenna, and in this
`case, it's mounted on top of the headset.
` Q. What is the reason that you -- the figures
`depict mounting the GPS receiver antenna on top of
`the runner's head?
` A. The idea behind that was that the head is a
`very stable platform.
` Q. What does that mean, the head is a stable
`platform?
` A. It doesn't move around as much as, for
`instance, your hands or your feet or --
` Q. You obviously haven't seen me run.
` If you will, could you please flip to the
`specification? When I say flip to the specification,
`do you know what part I mean?
` A. Yes, with the columns?
`
`Page 16
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` Q. Yes. If you please, Mr. van Hoorn, look at
`Column 1, Lines 53 to 58, and let me know after
`you've read Column 1, Lines 53 to 58.
` A. I may have to change my glasses. It's a
`little better.
` Okay.
` Q. What did you mean when you wrote, making
`them incompatible with exercise activities?
` A. I'll just find it again.
` The idea was that the -- using a screen as
`a potential of distraction during your exercise.
` Q. In other words, if, while I'm running, I
`have to look down at the device to read it, that
`that's distracting?
` A. That's correct, yes.
` Q. Then at that same column, Mr. van Hoorn, if
`you could please read Lines 64 to 67?
` A. Okay.
` Q. Could you please explain a little bit more
`about what that passage means?
` A. It's as to the visual display on the
`screen, that's an alternative to using the audio
`feedback to your headset.
` Q. So you're talking about real-time audio
`reports. What would be the reports?
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`4 (Pages 13 to 16)
`
`Fax: 314.644.1334
`
`

`

`Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 4 of 6 Page ID #:3438
`
` FRANK VAN HOORN 8/21/2020
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` A. Depending on the settings, but mostly the
`miles traveled, average pace, average speed, current
`speed. Things like that. Performance feedback.
` Q. Got it. So the real-time performance
`feedback goes through audio, not visual, so the
`athlete isn't distracted. Am I understanding that?
` A. Yes, the audio was one of the embodiments,
`yes.
` Q. So let's talk about that for a second. You
`say the audio was one of the embodiments, but nothing
`in this passage is referencing an embodiment, right?
` A. Not in this section, no.
` Q. Not in this section of the patent?
` A. Correct.
` Q. Correct. This section of the patent is
`the -- called the background art, correct?
` A. Correct.
` Q. And so what you're talking about here are
`the problems in the background art you're trying to
`solve, correct?
` A. Correct.
` Q. And so one of the problems you're trying to
`solve is the visual distraction caused by text only
`reporting of performance data, correct?
` A. Correct.
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`Page 18
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` Q. Now, sir, I'm going to ask you to look at
`Column 2 entitled Summary of the Invention. Do you
`see that?
` A. Yes.
` Q. Okay. And under the Summary of Invention,
`could you please look at Lines 21 to 25?
` A. Okay.
` Q. And is it fair to read that as the summary
`of your invention as your solution to the problems
`being described in the background of the invention,
`the background art?
` A. Can you repeat that, please?
` Q. Unlikely. It was a terribly-worded
`question.
` Would it be fair to read in the Summary of
`Invention, Lines 21 to 26, that an important part of
`your invention was audio signals that reduce
`distractions?
` A. Oh, yeah, there was -- that's correct.
` Q. And that would improve the safety of the
`athlete. That's one of the reasons it's important to
`your invention, the safety of the athlete?
` A. Yes.
` Q. Mr. van Hoorn, if you could please turn to
`the Claims, and I'm going to ask you specifically to
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`look at Column 11, Claim 1. Please review Claim 1
`and let me know after you've reviewed it.
` A. Okay.
` Q. Okay. If you look at what we call
`Limitation C, Mr. van Hoorn, that is, Column 11,
`Lines 15 and 16, it says, means for presenting the
`athletic performance feedback data to an athlete.
` Do you see that?
` A. I do.
` Q. What is the means for presenting
`performance feedback data to the athlete?
` MR. CIARDULLO: Objection, to the extent
`that the witnesses is not a patent attorney. But you
`can go ahead and answer the question.
` THE WITNESS: It provides me a small
`display as well as the headset for audio feedback.
`BY MS. LAMKIN:
` Q. Okay. The means for presenting here, is
`all I'm asking you, if you read this claim -- not
`what you built -- if you read this claim, what is the
`means for presenting the athletic performance
`feedback data to the athlete claimed in your patent?
` A. It's either on the screen or the audio
`feedback.
` Q. Either the screen or the audio feedback
`
`Page 20
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`could satisfy that limitation?
` MR. CIARDULLO: Still the same objection.
`But go ahead and answer the question to your ability.
` THE WITNESS: I believe it does, yes.
`BY MS. LAMKIN:
` Q. Okay. So let's talk about that. It's your
`opinion, as the inventor of this patent and someone
`hired as an expert on this patent for Foley, it's
`your opinion that means for presenting could be via
`text or visual?
` A. Correct.
` Q. Okay. You didn't invent presenting
`performance feedback data to an athlete by a visual
`means, did you?
` A. I'm not sure about that.
` Q. Okay. You ran with the Garmin device, the
`GPS II Plus, prior to filing this patent, correct?
` A. I did that, using the device as a Black
`Box.
` Q. Okay. For example, you ran the Houston
`Marathon in January of 1998 using a Garmin GPS II
`device?
` A. I did, yes.
` Q. Okay. And on the Garmin GPS II device, you
`could look at that device and see, for example, how
`
`www.alaris.us
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`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`5 (Pages 17 to 20)
`
`Fax: 314.644.1334
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`

`

`Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 5 of 6 Page ID #:3439
`
` FRANK VAN HOORN 8/21/2020
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`fast you were running, correct?
` A. If I had access to it, yes.
` Q. What do you mean, if you had access to it?
` A. During my runs, the GPS was stuck into a
`fanny pack, and the only thing that came out was the
`cord for the antenna.
` Q. If you pulled the device out of your fanny
`pack and looked at it, you could see how fast you
`were running, correct?
` A. You can. You could.
` Q. So you didn't invent performance feedback
`data by visual means, did you?
` MR. CIARDULLO: Just an objection about the
`term "invent" being a legal term of art. But go
`ahead and answer the question to your ability.
`BY MS. LAMKIN:
` Q. Mr. van Hoorn, you didn't come up with the
`idea of feedback data being communicated by visual
`means, did you?
` A. Well, but we came up with the idea for
`using it for the athlete's performance feedback.
` Q. Stay with me. When you're running the
`Houston Marathon, you're doing athletic performance,
`correct?
` A. Correct.
`
`Page 22
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` Q. And the speed that you're running is
`performance feedback data, right?
` A. It's just about a couple hours later, after
`downloading all the wave points.
` Q. Just answer my question, sir. The speed
`that you're running is athletic performance feedback
`data, correct?
` A. Correct.
` Q. And if you would have pulled the GPS II out
`of your fanny pack and looked at it, you would have
`seen how fast you were running, right?
` A. That's correct.
` Q. Okay. So you didn't invent the idea of
`performance data being communicated to the runner by
`visual means?
` MR. CIARDULLO: Object to form. But answer
`to your ability.
` THE WITNESS: If you put it that way, yes.
`BY MS. LAMKIN:
` Q. No, you did not. You did not invent that
`idea, correct?
` A. Correct.
` Q. Okay. So now, with that admission in mind,
`returning to Claim 1, knowing that before you filed
`this patent, you ran with the GPS II, do you still
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`believe that the means for presenting can be text
`alone?
` MR. CIARDULLO: Object to form again. But
`answer to your ability.
` THE WITNESS: Can be text alone? That's
`possible. That's not the safest way, but that's
`possible, yeah.
`BY MS. LAMKIN:
` Q. But it's not the safest, as you've
`discussed multiple times in your patent. Picking up
`the GPS II to look at it while you're running is not
`a safe thing to do? That's what your patent
`communicates, correct?
` A. Correct.
` Q. I'm going to mark as Exhibit 3 a document
`bearing Bates range GAR 0000852 to 873.
` (Whereupon, Exhibit No. 3 was marked for
`identification)
`BY MS. LAMKIN:
` Q. Same thing, Mr. van Hoorn: Please review
`the document. Take your time. Let me know after
`you've reviewed it.
` J.P., same thing. If you don't have it,
`let me know, I'll email it to you.
` MR. CIARDULLO: Coming out okay at my end.
`
`Page 24
`
`I'll just note that the PDFs as they come up have a
`different numbering file name. So for example, you
`were referring to this as Exhibit 3, the file name
`says Exhibit 5B. But, yeah.
` MS. LAMKIN: The reporter will re-mark
`them, J.P., when they come through.
` MR. CIARDULLO: That's fine. I just wanted
`to make sure you were aware.
` THE WITNESS: I am looking over this here,
`quickly.
`BY MS. LAMKIN:
` Q. Take your time. You don't need to go
`quickly, Mr. van Hoorn. Let me know when you're
`ready.
` A. I think I'm ready.
` Q. Okay. Do you recognize this document,
`Mr. van Hoorn?
` A. Well, recognize is a big word, I guess, but
`it's vaguely familiar.
` Q. It's vaguely familiar to you?
` A. Yes.
` Q. What is this document, sir?
` A. It looks like a presentation we did to Sony
`to sell the patent.
` Q. Okay. And did you draft or create part of
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`6 (Pages 21 to 24)
`
`Fax: 314.644.1334
`
`

`

`Case 2:19-cv-06301-AB-KS Document 97-2 Filed 08/25/20 Page 6 of 6 Page ID #:3440
`
` FRANK VAN HOORN 8/21/2020
`
`Page 45
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` MS. LAMKIN: J.P., can we go off line?
` MR. CIARDULLO: That's okay by me as well.
` VIDEOGRAPHER: All right. We're going off
`the record at 11:56 a.m. (CST).
` (Recess)
` VIDEOGRAPHER: We are back on the record at
`12:12 (CST).
`BY MS. LAMKIN:
` Q. Mr. van Hoorn, did you communicate with
`anyone about your deposition during the break?
` A. I did not.
` Q. If you can please return to Exhibit 2,
`your '007 patent?
` A. Okay.
` Q. And could you please return to Column 11,
`Claim 1?
` A. Yes.
` Q. I want to return to our discussion of
`limitation 1C, the means for presenting the athletic
`performance feedback data to an athlete. I want to
`make sure that we're clear on your testimony about
`the meaning of that limitation. And I believe --
`correct me if I'm wrong -- that you earlier testified
`under oath that that limitation could mean audio
`alone, or text alone. Am I getting the substance of
`
`Page 46
`
`your testimony correct?
` MR. CIARDULLO: I'll just make the
`objection to form. Also, he's not a patent attorney.
`I don't want to keep making that objection, so if
`it's okay, I'll just leave that as a standing
`objection and I'll let you ask your questions.
` The witness should answer to the extent of
`his ability.
` THE WITNESS: No, I don't think it has to
`be exclusive.
`BY MS. LAMKIN:
` Q. Can you explain what you mean?
` A. In the device that we show in the patent,
`it has the screen for visual display as well as the
`headset for the audio feedback.
` Q. So one possible embodiment is that it has
`both?
` A. Yes.
` Q. Audio and concurrent visual. Is that
`correct?
` A. Correct.
` Q. Is it your testimony here today that you
`could have an embodiment satisfying Claim 1 where the
`performance feedback data was only via text, no
`audio?
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` A. Yeah, I can interpret that, yes.
` Q. Okay. That's your testimony today under
`oath?
` A. Yes.
` Q. Okay. Let's please, sir, return to the
`passages we discussed earlier, and specifically in
`Column 1 starting at Line 53. And I want to
`specifically call your attention to the
`specification, your specification, where you say,
`Current devices requires frequent visual interaction
`compromising the safety and concentration of their
`user, making them incompatible with exercise
`activities.
` Your specification in the '007 says visual
`means of conveying information is incompatible with
`exercise activities; is that correct?
` A. It is, yes.
` Q. So how can you have an embodiment that only
`communicates visually?
` A. Yeah, I'm looking at this. That's not the
`best option.
` Q. It's inconsistent with your patent's
`specification to have an embodiment that only
`communicates performance data visually; is that
`correct?
`
`Page 48
`
` A. That is correct.
` Q. Sir, if you please, in that same patent,
`look at Column 1, Lines 16 to 27, please read that
`and let me know when you're done reading Column 1,
`Lines 16 to 27.
` A. Yes.
` Q. Can you explain what that section is
`communicating, please?
` A. It would be just the -- okay, we have a
`treadmill, but it only works indoors. And of course,
`it's stationary. Let's take the technology from the
`treadmill and take it outdoors and then kind of smash
`the treadmill, the GPS, and the Walkman together into
`one device.
` Q. I'm going to mark as Exhibit 9 a document
`bearing the Bates range GAR 0000001 to 6.
` (Whereupon, Exhibit No. 9 was marked for
`identification)
`BY MS. LAMKIN:
` Q. Please let me know when you're ready to
`answer questions about that document, Mr. van Hoorn.
` A. Okay.
` Q. Do you recognize this document?
` A. I do, yes.
` Q. Did you draft this document?
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`12 (Pages 45 to 48)
`
`Fax: 314.644.1334
`
`