Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 1 of 39
`Case 1:19-cv-11586—IT Document 78-2 Filed 07/08/20 Page 1 of 39
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 2 of 39
`
`1
`
` 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
`
`22
`
`23 REPORTED BY:
`
`24 Kristi Caruthers
`
`25 CLR, CSR No. 10560
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 3 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`40
`
`
` 1 the patents issued or were filed?
`
` 2 A. No, I do not.
`
` 3 Q. Other than your lawyers, did you speak
`
` 4 with anyone in connection with the preparation for
`
` 5 your exhibit today -- or for your deposition today?
`
` 6 A. No, I didn't.
`
` 7 Q. Sticking with your materials considered,
`
` 8 you have a number of cites from this www.ck12.org
`
` 9 website.
`
`10 Do you see that?
`
`11 A. Yes, I do.
`
`12 Q. What is the ck12.org organization?
`
`13 A. It provides a set of tutorials for
`
`14 different topics for kindergarten through 12th
`
`15 grade, for grade school materials.
`
`
`
`
`16 Q. Have you ever cited ck12.org in connection16 Q. Have you ever cited ck12.org in connection
`
`
`17 with any of your published papers?17 with any of your published papers?
`
`
`18 A. No, I haven't had a need to.18 A. No, I haven't had a need to.
`
`
`
`
`
`
`
`
`
`
`19 Q. And why did you choose to cite to ck12.org19 Q. And why did you choose to cite to ck12.org
`
`
`20 in connection with this matter?20 in connection with this matter?
`
`
`21 A. So one of the points in my declaration is21 A. So one of the points in my declaration is
`
`
`
`
`
`
`22 that the math that was required for calculating the22 that the math that was required for calculating the
`
`
`23 distance between two GPS waypoints is relatively23 distance between two GPS waypoints is relatively
`
`
`24 simple and would have been obvious to somebody who24 simple and would have been obvious to somebody who
`
`
`
`
`
`
`
`25 was skilled in the art.25 was skilled in the art.
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 4 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`41
`
`
`
` 1 And the math is the sort of math that you1 And the math is the sort of math that you
`
`
` 2 would do for finding distance for somebody who was2 would do for finding distance for somebody who was
`
`
` 3 exercising, is the kind of thing that somebody with3 exercising, is the kind of thing that somebody with
`
`
`
`
`
`
`
`
`
`
` 4 a knowledge of high school trigonometry or geometry4 a knowledge of high school trigonometry or geometry
`
`
` 5 would be able to do.5 would be able to do.
`
`
` 6 And so I was citing the -- these cites6 And so I was citing the -- these cites
`
`
`
`
`
`
`
`
`
`
` 7 because they back up that opinion, showing that it's7 because they back up that opinion, showing that it's
`
`
` 8 the kind of thing that is taught in grade school.8 the kind of thing that is taught in grade school.
`
`
`
` 9 Q. Now, why did you feel a need to lookQ. Now, why did you feel a need to look
`
`
`
`
`
`
`10 outside the specification on the patent in order to10 outside the specification on the patent in order to
`
`
`11 demonstrate an algorithm that calculated distance?11 demonstrate an algorithm that calculated distance?
`
`
`12 MR. RODRIGUES: Objection to form, lacks12 MR. RODRIGUES: Objection to form, lacks
`
`
`
`
`
`
`13 foundation.13 foundation.
`
`
`14 THE WITNESS: Actually, I wasn't trying to14 THE WITNESS: Actually, I wasn't trying to
`
`
`15 show that there was an algorithm; I was just trying15 show that there was an algorithm; I was just trying
`
`
`
`
`
`
`
`
`16 to show that just saying find the distance between16 to show that just saying find the distance between
`
`
`17 two points is relatively simple.17 two points is relatively simple.
`
`
`18 BY MR. PETERMAN:18 BY MR. PETERMAN:
`
`
`
`
`
`
`
`
`19 Q. And -- oh. Why were you -- why were you19 Q. And -- oh. Why were you -- why were you
`
`
`20 trying to establish the point that finding the20 trying to establish the point that finding the
`
`
`21 distance between two points was relatively simple?21 distance between two points was relatively simple?
`
`
`
`
`
`
`
`
`22 A. Because just saying finding the distance22 A. Because just saying finding the distance
`
`
`23 between two points would be the kind of step -- if I23 between two points would be the kind of step -- if I
`
`
`24 was sketching out an algorithm, that might be the24 was sketching out an algorithm, that might be the
`
`
`
`
`
`
`
`25 kind of step that I would provide in the sketch of25 kind of step that I would provide in the sketch of
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 5 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`42
`
`
`
`
`
` 1 the algorithm.1 the algorithm.
`
`
` 2 So just saying calculate the -- find the2 So just saying calculate the -- find the
`
`
` 3 distance between these two points, you find the3 distance between these two points, you find the
`
`
`
`
`
`
`
`
` 4 distance.4 distance.
`
`
` 5 Q. So where in the specification of any of5 Q. So where in the specification of any of
`
`
` 6 the patents-in-suit that you reviewed is there an6 the patents-in-suit that you reviewed is there an
`
`
`
`
`
`
`
`
`
`
` 7 algorithm for finding the distance between two7 algorithm for finding the distance between two
`
`
` 8 points?8 points?
`
`
` 9 A. I'm sorry. I just said I don't think9 A. I'm sorry. I just said I don't think
`
`
`
`
`
`
`
`
`10 you -- you need to specify an algorithm for finding10 you -- you need to specify an algorithm for finding
`
`
`11 the distance between two points. Saying "find the11 the distance between two points. Saying "find the
`
`
`12 distance between two points" would be the step that12 distance between two points" would be the step that
`
`
`
`
`
`
`13 I would provide within an algorithm.13 I would provide within an algorithm.
`
`
`14 Q. So is there anywhere in the specification14 Q. So is there anywhere in the specification
`
`
`15 where there is an algorithm for finding the distance15 where there is an algorithm for finding the distance
`
`
`
`
`
`
`
`
`16 between two points?16 between two points?
`
`
`17 MR. RODRIGUES: Objection to form.17 MR. RODRIGUES: Objection to form.
`
`
`18 THE WITNESS: You know, as I've described18 THE WITNESS: You know, as I've described
`
`
`
`
`
`
`
`
`
`
`19 in my report and as what I think I've said in the19 in my report and as what I think I've said in the
`
`
`20 last couple of questions, just saying "find the20 last couple of questions, just saying "find the
`
`
`21 distance between these two GPS points" is enough to21 distance between these two GPS points" is enough to
`
`
`
`
`
`
`
`
`22 describe what you need to do.22 describe what you need to do.
`
`
`23 BY MR. PETERMAN:23 BY MR. PETERMAN:
`
`
`24 Q. And what's your basis for saying that's24 Q. And what's your basis for saying that's
`
`
`
`
`
`25 enough to describe what you need to do under patent25 enough to describe what you need to do under patent
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 6 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`43
`
`
`
`
`
` 1 law?1 law?
`
`
` 2 MR. RODRIGUES: Objection to form.2 MR. RODRIGUES: Objection to form.
`
`
` 3 THE WITNESS: Again, it would have been3 THE WITNESS: Again, it would have been
`
`
`
`
`
`
`
`
`
`
` 4 someone skilled in the art, as I've laid out in4 someone skilled in the art, as I've laid out in
`
`
` 5 my -- in my report, would have seen "find the5 my -- in my report, would have seen "find the
`
`
` 6 distance between these two GPS waypoints" and, you6 distance between these two GPS waypoints" and, you
`
`
`
`
`
`
` 7 know, would have understood what that meant and how7 know, would have understood what that meant and how
`
`
` 8 to find the distance.8 to find the distance.
`
`
` 9 BY MR. PETERMAN:9 BY MR. PETERMAN:
`
`
`
`
`
`
`
`
`10 Q. So sticking with this find the distance10 Q. So sticking with this find the distance
`
`
`11 between two GPS waypoints, what would a person of11 between two GPS waypoints, what would a person of
`
`
`12 skill in the art then do to find the distance?12 skill in the art then do to find the distance?
`
`
`
`
`
`
`
`
`13 A. Well, as I've described in the report, you13 A. Well, as I've described in the report, you
`
`
`14 have to assume the radius of the earth, and the14 have to assume the radius of the earth, and the
`
`
`15 basic distance formula between two points -- give me15 basic distance formula between two points -- give me
`
`
`
`
`
`
`
`
`16 a second while I look back through the report.16 a second while I look back through the report.
`
`
`17 (Document reviewed by witness.)17 (Document reviewed by witness.)
`
`
`18 THE WITNESS: So in Paragraph 19, I lay18 THE WITNESS: So in Paragraph 19, I lay
`
`
`
`
`
`
`
`
`
`
`19 out the distance between two points, which again19 out the distance between two points, which again
`
`
`20 would be something that somebody in grade school20 would be something that somebody in grade school
`
`
`21 would be taught.21 would be taught.
`
`
`
`
`
`
`22 And then so you have the two GPS22 And then so you have the two GPS
`
`
`23 waypoints. They would typically -- you know, they23 waypoints. They would typically -- you know, they
`
`
`24 begin in lat and long, typically in degrees. You'd24 begin in lat and long, typically in degrees. You'd
`
`
`
`
`
`
`
`25 have to convert those to radians, but again, that's25 have to convert those to radians, but again, that's
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 7 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`44
`
`
`
`
`
` 1 a really common thing.1 a really common thing.
`
`
` 2 Most of the programming languages that I2 Most of the programming languages that I
`
`
` 3 use, the trigonometric functions in those3 use, the trigonometric functions in those
`
`
`
`
`
`
`
`
`
`
` 4 programming languages require that the input angle4 programming languages require that the input angle
`
`
` 5 be given in radians, not in two degrees. So again,5 be given in radians, not in two degrees. So again,
`
`
` 6 someone of skill in the art would have known to make6 someone of skill in the art would have known to make
`
`
`
`
`
`
` 7 that conversion.7 that conversion.
`
`
` 8 And then for the sorts of distances that8 And then for the sorts of distances that
`
`
` 9 we're talking about with exercise, even -- even the9 we're talking about with exercise, even -- even the
`
`
`
`
`
`
`
`
`
`
`10 distance of running a marathon or an ultra marathon,10 distance of running a marathon or an ultra marathon,
`
`
`11 you can treat the earth's surface as a plane, and so11 you can treat the earth's surface as a plane, and so
`
`
`12 you've got these two X, Y coordinates on the plane,12 you've got these two X, Y coordinates on the plane,
`
`
`
`
`
`
`
`
`13 and you convert from the lat and long taking into13 and you convert from the lat and long taking into
`
`
`14 account the radius of the earth to find those -- to14 account the radius of the earth to find those -- to
`
`
`15 find the distance.15 find the distance.
`
`
`
`
`
`
`16 BY MR. PETERMAN:16 BY MR. PETERMAN:
`
`
`17 Q. And where in the specifics is the17 Q. And where in the specifics is the
`
`
`18 conversion to radians mentioned?18 conversion to radians mentioned?
`
`
`
`
`
`
`19 MR. RODRIGUES: Objection to form.19 MR. RODRIGUES: Objection to form.
`
`
`20 THE WITNESS: Again, that would be obvious20 THE WITNESS: Again, that would be obvious
`
`
`21 to somebody skilled in the art.21 to somebody skilled in the art.
`
`
`
`
`
`
`
`
`
`
`22 BY MR. PETERMAN:22 BY MR. PETERMAN:
`
`
`23 Q. Where in the specification of the patents23 Q. Where in the specification of the patents
`
`
`24 is the, you know, radius of the -- the earth24 is the, you know, radius of the -- the earth
`
`
`
`
`
`
`
`25 mentioned?25 mentioned?
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 8 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`45
`
`
`
` 1 MR. RODRIGUES: Objection to form.1 MR. RODRIGUES: Objection to form.
`
`
` 2 THE WITNESS: Again, it's my opinion that2 THE WITNESS: Again, it's my opinion that
`
`
` 3 would be obvious to somebody, you know, skilled in3 would be obvious to somebody, you know, skilled in
`
`
`
`
`
`
`
`
`
`
`
`
` 4 the art.4 the art.
`
`
` 5 BY MR. PETERMAN:5 BY MR. PETERMAN:
`
`
` 6 Q. And you keep using the term it would be6 Q. And you keep using the term it would be
`
`
`
`
`
`
`
`
` 7 obvious to someone of skill in the art.7 obvious to someone of skill in the art.
`
`
` 8 What does -- what does that mean?8 What does -- what does that mean?
`
`
` 9 A. Well, as I've detailed in the report, I'm9 A. Well, as I've detailed in the report, I'm
`
`
`
`
`
`
`
`
`10 assuming somebody with a degree in electrical10 assuming somebody with a degree in electrical
`
`
`11 engineering or computer engineering or computer11 engineering or computer engineering or computer
`
`
`12 science, some related field, related knowledge, you12 science, some related field, related knowledge, you
`
`
`
`
`
`
`13 know, from practice in the field.13 know, from practice in the field.
`
`
`14 Q. Were you finished or -- I wasn't sure if14 Q. Were you finished or -- I wasn't sure if
`
`
`15 you were finished with your answer.15 you were finished with your answer.
`
`
`
`
`
`
`
`
`16 A. Yes, I'm finished.16 A. Yes, I'm finished.
`
`
`17 Q. So your opinion is is that all of these17 Q. So your opinion is is that all of these
`
`
`18 calculations that are called for in the claims would18 calculations that are called for in the claims would
`
`
`
`
`
`
`
`
`19 have been obvious for someone of skill in the art to19 have been obvious for someone of skill in the art to
`
`
`20 implement?20 implement?
`
`
`21 MR. RODRIGUES: Objection to form.21 MR. RODRIGUES: Objection to form.
`
`
`
`
`
`
`
`
`22 THE WITNESS: Yes. It would have been22 THE WITNESS: Yes. It would have been
`
`
`23 obvious to someone skilled in the art.23 obvious to someone skilled in the art.
`
`24 BY MR. PETERMAN:
`
`
`
`
`
`25 Q. So we've talked a lot about distance.25 Q. So we've talked a lot about distance.
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 9 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`46
`
`
`
`
`
`
`
` 1 Would it also have been obvious to1 Would it also have been obvious to
`
`
` 2 determine the current or average speed of an2 determine the current or average speed of an
`
`
` 3 athlete?3 athlete?
`
`
`
`
`
`
` 4 A. Well, as I've described in my report, once4 A. Well, as I've described in my report, once
`
`
` 5 you have the distance and you know the -- and you5 you have the distance and you know the -- and you
`
`
` 6 would have been keeping track of the time, then6 would have been keeping track of the time, then
`
`
`
`
`
`
`
`
`
`
` 7 average speed is just the distance divided by the7 average speed is just the distance divided by the
`
`
` 8 time, again, a calculation that someone in grade8 time, again, a calculation that someone in grade
`
`
` 9 school would be able to do.9 school would be able to do.
`
`
`
`
`
`
`
`
`10 Q. Is there an algorithm for calculating10 Q. Is there an algorithm for calculating
`
`
`11 average sp.eed that's disclosed in the patent11 average sp.eed that's disclosed in the patent
`
`
`12 specification?12 specification?
`
`
`
`
`13 MR. RODRIGUES: Objection to form.13 MR. RODRIGUES: Objection to form.
`
`
`14 THE WITNESS: It's my opinion that just14 THE WITNESS: It's my opinion that just
`
`
`15 stating -- you know, finding the average speed would15 stating -- you know, finding the average speed would
`
`
`
`
`
`
`
`
`
`
`
`
`16 be sufficient.16 be sufficient.
`
`
`17 BY MR. PETERMAN:17 BY MR. PETERMAN:
`
`
`18 Q. And is that your same opinion also for18 Q. And is that your same opinion also for
`
`
`
`
`
`
`19 finding the current speed?19 finding the current speed?
`
`
`20 MR. RODRIGUES: Objection to form.20 MR. RODRIGUES: Objection to form.
`
`
`21 THE WITNESS: Yes.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
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 10 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`47
`
`
` 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
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 11 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`48
`
`
` 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?6 Q. What is meant by "processor" here?
`
`
`
`
` 7 MR. RODRIGUES: Objection to form.7 MR. RODRIGUES: Objection to form.
`
`
` 8 THE WITNESS: It means a computational8 THE WITNESS: It means a computational
`
`
` 9 element, you know, a microcontroller or a9 element, you know, a microcontroller or a
`
`
`
`
`
`
`
`
`
`
`
`
`10 microprocessor.10 microprocessor.
`
`
`11 BY MR. PETERMAN:11 BY MR. PETERMAN:
`
`
`12 Q. So, for example, an Intel chip would be an12 Q. So, for example, an Intel chip would be an
`
`
`
`
`
`
`
`
`13 example of a microprocessor?13 example of a microprocessor?
`
`
`14 A. Yes, an Intel chip would be an example of14 A. Yes, an Intel chip would be an example of
`
`
`15 a microprocessor.15 a microprocessor.
`
`
`
`
`
`
`16 Q. Do microprocessors need to be programmed16 Q. Do microprocessors need to be programmed
`
`
`17 with algorithms in order to perform?17 with algorithms in order to perform?
`
`
`18 MR. RODRIGUES: Objection to form.18 MR. RODRIGUES: Objection to form.
`
`
`
`
`
`
`
`
`19 THE WITNESS: Yes, they need to be19 THE WITNESS: Yes, they need to be
`
`
`20 programmed.20 programmed.
`
`
`21 BY MR. PETERMAN:21 BY MR. PETERMAN:
`
`
`
`
`
`
`
`
`22 Q. Does an Intel chip off the shelf know how22 Q. Does an Intel chip off the shelf know how
`
`
`23 to calculate distance between two waypoints?23 to calculate distance between two waypoints?
`
`
`24 MR. RODRIGUES: Objection to form.24 MR. RODRIGUES: Objection to form.
`
`
`
`
`
`
`
`25 THE WITNESS: No. An Intel processor off25 THE WITNESS: No. An Intel processor off
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 12 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`49
`
`
`
`
`
`
`
` 1 the shelf would not be able to find the distance1 the shelf would not be able to find the distance
`
`
` 2 between two points. It also wouldn't be able to do2 between two points. It also wouldn't be able to do
`
`
` 3 anything else.3 anything else.
`
`
`
`
`
`
`
`
` 4 BY MR. PETERMAN:4 BY MR. PETERMAN:
`
`
` 5 Q. Would any processor off the shelf be able5 Q. Would any processor off the shelf be able
`
`
` 6 to find the distance between two waypoints?6 to find the distance between two waypoints?
`
`
`
`
` 7 MR. RODRIGUES: Objection to form.7 MR. RODRIGUES: Objection to form.
`
`
` 8 THE WITNESS: I'm not a lawyer -- I'm8 THE WITNESS: I'm not a lawyer -- I'm
`
`
` 9 sorry. What was that?9 sorry. What was that?
`
`
`
`
`
`
`
`
`
`
`10 MR. RODRIGUES: I was just saying10 MR. RODRIGUES: I was just saying
`
`
`11 objection to form.11 objection to form.
`
`
`12 You can answer.12 You can answer.
`
`
`
`
`
`
`
`
`13 THE WITNESS: Okay. I'm not a lawyer, but13 THE WITNESS: Okay. I'm not a lawyer, but
`
`
`14 it is entirely possible that somebody could have14 it is entirely possible that somebody could have
`
`
`15 made a processor that's dedicated to find distances15 made a processor that's dedicated to find distances
`
`
`
`
`
`
`
`
`
`
`16 between latitude and longitude points.16 between latitude and longitude points.
`
`
`17 BY MR. PETERMAN:17 BY MR. PETERMAN:
`
`
`18 Q. But in the 1998 to, you know, 2002 time18 Q. But in the 1998 to, you know, 2002 time
`
`
`
`
`
`
`
`
`19 frame, what processors were you aware of off the19 frame, what processors were you aware of off the
`
`
`20 shelf that could find distance between two GPS20 shelf that could find distance between two GPS
`
`
`21 waypoints?21 waypoints?
`
`
`
`
`
`
`
`
`22 A. Well, almost any processor that somebody22 A. Well, almost any processor that somebody
`
`
`23 programmed to find those -- those waypoints would be23 programmed to find those -- those waypoints would be
`
`
`24 able to do it.24 able to do it.
`
`
`
`
`
`25 Q. But the key is that someone would need to25 Q. But the key is that someone would need to
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 13 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`50
`
`
`
`
`
` 1 program those off-the-shelf processors; correct?1 program those off-the-shelf processors; correct?
`
`
` 2 A. That is correct.2 A. That is correct.
`
`
` 3 Q. And the same is true for the current or3 Q. And the same is true for the current or
`
`
`
`
`
`
`
`
`
`
` 4 average speed of an athlete; correct? That would4 average speed of an athlete; correct? That would
`
`
` 5 need to be programmed by someone?5 need to be programmed by someone?
`
`
` 6 A. So the average speed would have to be6 A. So the average speed would have to be
`
`
`
`
`
`
`
`
` 7 programmed, but the '007 patent actually stated that7 programmed, but the '007 patent actually stated that
`
`
` 8 the GPS unit could provide current speed.8 the GPS unit could provide current speed.
`
`
` 9 Q. Would the average pace of an athlete need9 Q. Would the average pace of an athlete need
`
`
`
`
`
`
`
`
`10 to be programmed into an off-the-shelf10 to be programmed into an off-the-shelf
`
`
`11 microprocessor?11 microprocessor?
`
`
`12 MR. RODRIGUES: Objection to form.12 MR. RODRIGUES: Objection to form.
`
`
`
`
`
`
`13 THE WITNESS: Someone would have to write13 THE WITNESS: Someone would have to write
`
`
`14 a program to do that, yes.14 a program to do that, yes.
`
`
`15 BY MR. PETERMAN:15 BY MR. PETERMAN:
`
`
`
`
`
`
`
`
`16 Q. And it's your opinion that it would just16 Q. And it's your opinion that it would just
`
`
`17 be obvious to write a program to do these17 be obvious to write a program to do these
`
`
`18 calculations; correct?18 calculations; correct?
`
`
`
`
`
`
`
`
`19 MR. RODRIGUES: Objection to form.19 MR. RODRIGUES: Objection to form.
`
`
`20 THE WITNESS: That is correct.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,
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 14 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`69
`
`
` 1 BY MR. PETERMAN:
`
` 2 Q. I'll break it down.
`
` 3 Prior to 1998, were you aware of any
`
` 4 system that used GPS for the purposes of navigation?
`
` 5 MR. RODRIGUES: Objection to form.
`
` 6 THE WITNESS: Yes, that's the -- the main
`
` 7 point of GPS is -- I mean it is for navigation.
`
` 8 BY MR. PETERMAN:
`
` 9 Q. Were you aware of any systems using GPS
`
`10 for navigation and also providing information as to
`
`11 how long it would take to arrive at a destination?
`
`12 A. I -- I don't recall anything around the
`
`13 time saying that, no.
`
`
`14 Q. In Paragraph 18 of your report, you state14 Q. In Paragraph 18 of your report, you state
`
`
`15 that:15 that:
`
`
`
`
`
`
`16 "To the extent the court16 "To the extent the court
`
`
`17 construes the term means for17 construes the term means for
`
`
`18 computing athletic performance18 computing athletic performance
`
`
`
`
`
`
`
`
`19 feedback data from the series of19 feedback data from the series of
`
`
`20 time-stamped waypoints obtained20 time-stamped waypoints obtained
`
`
`21 by said GPS receiver as a21 by said GPS receiver as a
`
`
`
`
`
`
`
`
`
`
`22 processor and equivalence22 processor and equivalence
`
`
`23 thereof, that determines any of23 thereof, that determines any of
`
`
`24 the following from a series of24 the following from a series of
`
`
`
`
`
`
`
`25 time-stamped waypoints obtained25 time-stamped waypoints obtained
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 15 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`70
`
`
`
` 1 by said GPS receiver during an1 by said GPS receiver during an
`
`
` 2 exercise session."2 exercise session."
`
`
` 3 And then you go ahead and you list a3 And then you go ahead and you list a
`
`
`
`
`
`
`
`
`
`
`
`
` 4 number of variables.4 number of variables.
`
`
` 5 You go on to say:5 You go on to say:
`
`
` 6 "The specification in the6 "The specification in the
`
`
`
`
`
`
` 7 claims also sufficiently7 claims also sufficiently
`
`
` 8 discloses an algorithm for8 discloses an algorithm for
`
`
` 9 computing a lap distance,9 computing a lap distance,
`
`
`
`
`
`
`10 current or average speed,10 current or average speed,
`
`
`11 current or average pace," et cetera.11 current or average pace," et cetera.
`
`
`12 Do you see that?12 Do you see that?
`
`
`
`
`
`
`
`
`
`
`13 A. Yes, I see that.13 A. Yes, I see that.
`
`
`14 Q. You used the term -- you say:14 Q. You used the term -- you say:
`
`
`15 "The specification in the15 "The specification in the
`
`
`
`
`
`
`16 claims sufficiently discloses an16 claims sufficiently discloses an
`
`
`17 algorithm."17 algorithm."
`
`
`18 I just want you to point to me where in18 I just want you to point to me where in
`
`
`
`
`
`
`
`
`
`
`
`
`19 the specification there is a disclosure of the19 the specification there is a disclosure of the
`
`
`20 algorithm.20 algorithm.
`
`
`21 A. Well, as I described in my report and said21 A. Well, as I described in my report and said
`
`
`
`
`
`
`
`
`22 earlier, you know, once you find the distance22 earlier, you know, once you find the distance
`
`
`23 between the two points of which is, you know, a23 between the two points of which is, you know, a
`
`
`24 sufficient description for somebody skilled in the24 sufficient description for somebody skilled in the
`
`
`
`
`
`25 art, then the -- the sorts of -- of athletic25 art, then the -- the sorts of -- of athletic
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 16 of 39
`Thomas Martin, PH.D. - June 18, 2020
`
`71
`
`
`
`
`
`
`
` 1 feedback that is described, the last distance, the1 feedback that is described, the last distance, the
`
`
` 2 average speed and so forth, would be easily derived2 average speed and so forth, would be easily derived
`
`
` 3 from that.3 from that.
`
`
`
`
`
`
` 4 Q. Okay. But I just want to focus on the4 Q. Okay. But I just want to focus on the
`
`
` 5 language that you used where you said:5 language that you used where you said:
`
`
` 6 "The specification in the6 "The specification in the
`
`
`
`
`
`
` 7 claims also sufficiently discloses7 claims also sufficiently discloses
`
`
` 8 an algorithm."8 an algorithm."
`
`
` 9 What portion -- and you can feel free to9 What portion -- and you can feel free to
`
`
`
`
`
`
`
`
`
`
`
`
`10 look at the '007 specification -- what portion of10 look at the '007 specification -- what portion of
`
`
`11 the specification supports your statement here in11 the specification supports your statement here in
`
`
`12 Paragraph 18?12 Paragraph 18?
`
`
`
`
`13 (Document reviewed by witness.)13 (Document reviewed by witness.)
`
`
`14 THE WITNESS: So if you look at14 THE WITNESS: So if you look at
`
`
`15 Column 7 -- and I apologize. The dog just started15 Column 7 -- and I apologize. The dog just started
`
`
`
`
`
`
`
`
`
`
`16 barking.16 barking.
`
`
`17 If you look at Column 7, the paragraph17 If you look at Column 7, the paragraph
`
`
`18 beginning around Line 50 -- no, sorry, around18 beginning around Line 50 -- no, sorry, around
`
`
`
`
`
`
`
`
`19 Line 40 through 50, that paragraph, again, you know,19 Line 40 through 50, that paragraph, again, you know,
`
`
`20 once you have the geographical position and the20 once you have the geographical position and the
`
`
`21 timestamps, you know, the last distance and the21 timestamps, you know, the last distance and the
`
`
`
`
`
`
`
`
`22 current and average speeds are easily derivable from22 current and average speeds are easily derivable from
`
`
`23 that.23 that.
`
`
`24 Q. Other than what you refer to in Column 724 Q. Other than what you refer to in Column 7
`
`
`
`
`
`
`
`25 going from around lines 40 to 50, is there any25 going from around lines 40 to 50, is there any
`
`
`
`www.LexitasLegal.com/Premier Lexitas 888-267-1200
`
`

`

`Case 1:19-cv-11586-IT Document 78-2 Filed 07/08/20 Page 17 of 39
`Thomas Martin, PH.D.