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` UNITED STATES PATENT AND TRADEMARK OFFICE
` _____________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _____________
` AVER INFORMATION INC., AND IPEVO, INC.,
` Petitioner,
` v.
` PATHWAY INNOVATIONS AND TECHNOLOGIES, INC.,
` Patent Owner
` _____________
` Case IPR2017-02108
` United States Patent No. 8,508,751
`
` DEPOSITION OF JEFFREY J. RODRIGUEZ, Ph.D.,
` taken by the Petitioner, commencing at the hour of
` 9:45 A.M. on Thursday, September 20, 2018, at
` 12526 High Bluff Drive, Suite 300, San Diego,
` California, before Johnell M. Gallivan, Certified
` Shorthand Reporter No. 10505, State of California.
`
`Reported By: Johnell M. Gallivan
`Job No: 148202
`
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`AVER EXHIBIT 1022
`Aver v. Pathway
`IPR2017-02108
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`APPEARANCES:
`
`For Petitioner:
` K&L GATES
` BY: BENJAMIN WEED, ESQ
` 70 West Madison Avenue
` Chicago, IL 60602
`
` For Patent Owner:
` SAN DIEGO IP LAW GROUP
` BY: JAMES FAZIO, ESQ
` Donny Samporna, Esq.
` 12526 High Bluff Drive
` San Diego, CA 92130
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` I N D E X
`
`WITNESS: Jeffrey J. Rodriguez, Ph.D.
`
`EXAMINATION PAGE
`
`By Mr. Weed 4
`
` E X H I B I T S
`
`FOR PETITIONER MARKED
` Exhibit 2002 Declaration of Jeffrey J. Rodriguez
` in Support of Patentability of Claims
` 1-5, 7-10, 12-14, 16, 18, and 20, and
` Proposed Substitute Claims 21-30 for
` United States Patent 8,508,751 5
` Exhibit 2003 Curriculum Vitae of Jeffrey J.
` Rodriguez, Ph.D. 7
` Exhibit 1001 '751 Patent 8
` Exhibit 1007 US Patent 6,965,460 30
` Exhibit 1021 US Patent 6,540,415 30
` Exhibit 1006 Referenced Document 59
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` JEFFREY J. RODRIGUEZ, Ph.D.,
`having been first duly sworn, testified as follows:
`
`Page 4
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` EXAMINATION
`BY MR. WEED:
` Q. Good morning, sir.
` A. Good morning.
` Q. Would you please state and spell your full name
`for the record?
` A. Jeffery Rodriguez, J-E-F-F-R-E-Y,
`R-O-D-R-I-G-U-E-Z.
` Q. What is your current address?
` A. 5658 Caminito Genio, C-A-M-I-N-I-T-O, G-E-N-I-O
`second word.
` Q. Have you been deposed before?
` A. And that's in La Jolla, California, by the way.
` Yes, I have been deposed before.
` Q. And how many times?
` A. Actually, it's -- more than a half a dozen.
`Nine times since -- is what I got in my CV. I think
`that's accurate.
` Q. Have all of those been as an expert witness?
` A. Yes, they have.
` Q. And have all of those expert engagements been
`patent-related cases?
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` A. I'm pretty sure they have.
` Q. Have any of those depositions been given in
`connection with cases at the patent office as opposed to
`district courts or the ITC?
` A. I don't recall.
` Q. Okay. I've put three documents in front of you
`in a stack. The top one should have a sticker on it
`that says, Exhibit 2002.
` Do you see that?
` A. Yes.
` (Exhibit 2002 marked for identification.)
`BY MR. WEED:
` Q. And do you recognize Exhibit 2002?
` A. It is the declaration that I submitted in this
`matter.
` Q. Okay. And is that your signature on Page 17 of
`Exhibit 2002?
` A. Yes, it is.
` Q. As you sit here today, are you aware of any
`errors that need to be corrected in your declaration?
` A. I'm aware of no substantive errors. There's a
`couple of clerical things that we can address if we get
`there.
` Q. If you know what they are off the top of your
`head we can do that right now. Otherwise, if you see
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`them while we go through you can correct them at that
`time, too.
` A. Let's see. I believe I can recall in Paragraph
`47 --
` Q. Okay.
` A. -- there's a missing section break before the
`sentence that begins with the word "independent."
` Q. Do you mean that should have been a separate
`paragraph?
` A. At that point there should be a new paragraph
`and a new section heading. And the section heading
`should be the wording that's in Paragraph 32.
` Q. Okay.
` A. That was somehow accidently cut out during
`formatting.
` Q. Okay. Anything else you're aware of?
` A. The only other thing I recall is Paragraph 33
`should be deleted. I don't know why that's there.
`Because it doesn't correspond to any analysis I did in
`this declaration.
` Q. Okay. By deleting Paragraph 33 are you saying
`that you didn't give opinions about substitute claims 21
`to 31?
` A. I did not give any opinion about whether
`substantive claims 21 to 31 are rendered obvious by
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`Morichika, Krisbergh, Hara, Mitsui and/or Ishii as a
`combination.
` Q. Okay. But if we look at, for example,
`Paragraph 30 -- the end of Paragraph 36 of your report,
`which is in the section about Morichika, correct?
` A. That -- yes. So just to be clear, the -- all
`of the other opinions that I give in this declaration,
`of course, still stand. That statement implies an
`analysis of a combination of all five of these
`references.
` Q. I see.
` A. And I -- I'm not offering any opinion about a
`combination of all five of those references.
` Q. I understand.
` Anything else that you would like to correct at
`this point in the deposition?
` A. That's all I recall.
` Q. I also put in front of you Exhibit 2003.
` (Exhibit 2003 marked for identification.)
`BY MR. WEED:
` Q. Let me know if you recognize that.
` A. Yes, that is my CV.
` Q. Okay. And then I also put in front of you a
`document that was previously marked as Exhibit 1001.
` Do you see that?
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` A. Yes.
` (Exhibit 1001 marked for identification.)
`BY MR. WEED:
` Q. What is Exhibit 1001?
` A. This is the '751 patent.
` Q. This is the subject of your opinions, correct?
` A. That is the patent that I offered opinions on,
`yes.
` Q. All right. Are you comfortable with -- if we
`refer to it as the '751 patent?
` A. Yes.
` Q. If at any point today you want to see other
`documents that you have referred to, let me know. I
`think I have them all. But I thought I would start with
`those to save some of the paper shuffling.
` If you go, please, to Paragraph 3 of your
`declaration, Exhibit 2002.
` Let me know when you are there.
` A. Okay.
` Q. How are you being compensated for your work in
`this case?
` A. I'm being paid on an hourly basis for the time
`I spend.
` Q. And what is your hourly rate?
` A. My hourly rate I believe is $495.
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` Q. Is that the same for deposition time and
`non-deposition time?
` A. Yes.
` Q. Do you have any idea of approximately how many
`hours you have spent on the -- this dispute between
`Pathway and Aver slash IPEVO total?
` A. Which dis -- this IPR you're asking about?
` Q. I will get to that one, but I want to know if
`you know how much time you have spent on the entire
`dispute between the ITC case, the district court case
`and IPR?
` A. I don't know.
` Q. Can you estimate how many hours you have spent
`on the IPR, in particular?
` A. No, I would have to look at my billing records.
` Q. Do you have any sense of the number of hours
`you spent preparing the declaration, Exhibit 2002?
` A. Again, I would have to go look at my billing
`records.
` Q. And how about, do you have any sense for the
`number of hours you spent preparing for the deposition
`today?
` A. I've spent a few hours over each of several
`days, approximately. I don't know exactly, but
`something around that.
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` Q. On the order of dozens?
` A. No, I would not say dozens.
` Q. Less than dozens?
` A. I don't -- I don't remember an exact number. I
`have given the best characterization I can.
` Q. Okay. Now, if you look at Paragraph 4 of your
`declaration, please. Again, Exhibit 2002.
` It says you are a professor at the University
`of Arizona, correct?
` A. That's correct.
` Q. And you gave me an address in La Jolla;
`correct, residential address?
` A. That's correct.
` Q. Do you teach on-line courses or do you teach at
`another location at University of Arizona?
` A. I teach on-line courses and I teach on campus
`at the University of Arizona.
` Q. A campus here in California?
` A. No, a campus at the University of Arizona in
`Tucson, Arizona.
` Q. How often are you in Tucson versus in La Jolla?
` A. Depends upon whether I'm teaching an on-campus
`class. When I'm each teaching an on-campus class I am
`in Tucson every week.
` Q. Can you give me a sense for how much time
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`during an average year you spend teaching versus doing
`expert witness work?
` A. The vast majority of my time is spent on my
`obligations at the University of Arizona. I would
`characterize my expert witness work as minimal over the
`span of a year.
` Q. Okay. Do you have any other currently active
`cases besides the Pathway case?
` A. I have one -- one other matter that's not
`public yet. I think that's it.
` Q. Okay. If you flip to Paragraph 7, please, of
`your declaration.
` In the second sentence of Paragraph 7 you say,
`"recent projects include," and then you list out several
`projects, right?
` A. Yes.
` Q. Can you just go through that list of projects
`and give me the approximate time for each project, in
`other words, a year, if you can, a beginning year?
` A. I won't be able to give an exact beginning year
`for each of these different projects, no.
` Q. Okay. Can you --
` A. Most of them span a number of a years and some
`are ongoing.
` Q. Let's try this, can you identify for me any
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`projects that had begun before 2010 that are listed in
`Paragraph 7?
` A. That are listed in Paragraph 7. My work on
`segmentation of the right ventricle probably began
`before 2010.
` The image inpainting work may have occurred
`before 2010.
` Performance evaluation of superpixels
`algorithms, that began before 2010.
` Segmentation of X-ray images, I'm pretty sure
`that began before 2010.
` Segmentation and measurement of lesions and
`magnetic resonance images, I have been active in for, I
`guess, decades.
` Segmentation of rock particles, that work began
`before 2010.
` The tongue detection work, that began and ended
`-- well, began before 2010. I'm not sure when that
`project ended.
` Automobile detection and tracking, that began
`before 2010. That's still ongoing.
` Q. Okay.
` A. Several of these are still ongoing.
` Q. Sure. Let's talk a little bit about the tongue
`detection project. Second to the last one.
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` A. Okay.
` Q. What is tongue detection?
` A. This was a collaborative project with another
`unit on campus where they were exploring -- it was a
`linguistics department. And they were interested in
`studying how the movement of the human tongue plays a
`role in speech production.
` So in that project we utilized a novel approach
`where we had an ultrasound image -- imaging sensor that
`was positioned underneath the jaw of a person, while
`that person was speaking, to capture ultrasound video
`imaging of the whole mouth cavity, including the tongue,
`during speech production.
` And then they used our expertise to develop
`customized software algorithms to analyze the sequence
`of images in that video sequence to locate the position
`of the tongue, the upper surface, in particular, and to
`track the movement of the upper surface of the tongue
`from one frame to the next.
` Q. And was -- you worked on the software piece of
`that?
` A. Yes. I directed the work on the software
`algorithms that would detect the position of the tongue
`in each frame of the video.
` Q. Do you remember the format of the video that
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`your software took as an input?
` A. Oh, I don't remember the native format.
`Whatever the ultrasound camera spit out. And we
`probably converted it to another format before we
`actually did our analysis of it.
` Q. Was the -- did you have to extract individual
`frames of that video to do the analysis that your
`algorithm did?
` A. Yes, of course.
` Q. And was that process for extracting individual
`frames something that you came up with as part of your
`work or was that existing techniques?
` A. That's existing techniques.
` Q. Okay. Let's talk a little bit about the last
`one, automobile detection and tracking in aerial video
`of urban traffic scenes.
` Do you see that?
` A. Yes.
` Q. Is that work in connection with the university
`as well?
` A. Yes, it is.
` Q. And can you describe for me the input or the
`video that's involved in that work?
` A. In that work we have used a number of video
`sources. One, in particular, is a video sequence that
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`was captured from I believe a helicopter hovering over
`an urban street scene with the video camera aimed
`downward capturing video of live traffic with cars going
`back and forth.
` In that project our task was to locate all the
`moving cars because this was a project that was -- let's
`see, what was the funding? I believe it was funded by a
`federal agency that was interested in traffic
`statistics. So our goal was to figure out an automated
`way to statistically count what fraction of cars were
`traveling at different rates of speed.
` And so, again, that was an image analysis
`problem where we had to extract frames from the video
`and frame by frame detect all the moving cars, and then
`track their motion from frame to frame in order to
`assess what their speed was.
` Q. And is the purview of that project limited to
`one particular video of traffic or was the idea to have
`it be applicable to additional new traffic pattern
`analysis, for example?
` A. The goal was to have it general enough that it
`could be applied to other video data.
` Q. Okay. Do you remember what the -- what kind of
`image sensor was used in the helicopter video for the
`traffic pattern you first mentioned?
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` A. I don't know.
` Q. Did the nature of image sensor matter to the
`software that you wrote?
` A. Yes and no. It wasn't a concern to us because
`we were given the video and charged with figuring out
`automated software to analyze that video sequence and
`others like it. Different video sensors have different
`properties, for example, in the image contrast that
`might result from captured images, captured frames.
` So, yes, a different sensor would possibly have
`generated different quality of video. But we were
`tasked with working with the video clips that we were
`given.
` Q. As far as extracting the frames from the video
`it didn't matter what kind of sensor was used to capture
`those frames; is that right?
` A. The simple step of extracting frames from the
`video data is very straightforward and doesn't really
`depend upon the sensor type. It -- it is more a
`function of the file format.
` Q. Now, in one of the answers you just gave me you
`used the phrase video sensor.
` Do you remember saying that?
` A. No.
` Q. Does the phrase video sensor mean anything to
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`you?
` A. Well, I'm -- perhaps I should be more precise.
`I was referring to the sensor that was used in the video
`camera.
` Q. Okay. In my question I had asked you about an
`image sensor.
` Have you heard the phrase image sensor before?
` A. Yes.
` Q. What is an image sensor?
` A. It's a sensor that collects information about
`light intensity at a given position.
` Q. Have you heard the acronym CCD before?
` A. Yes, I have.
` Q. What does CCD mean?
` A. Charged Coupled Device.
` Q. And is a CCD type device one technology that
`can be used for an image sensor?
` A. Yes, it is.
` Q. Have you heard the acronym CMOS, C-M-O-S?
` A. Yes, I have.
` Q. What is CMOS?
` A. That's another type of sensor that can be used
`for capturing images. I should also point out that CCD
`and CMOS technology isn't limited to --
` Q. Sure.
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` A. -- image sensing.
` For example, CCD technology can be used in
`linear arrays, like in flatbed scanners, for doing line
`by line scanning.
` Q. Do you consider a linear array not to be an
`image sensor?
` A. I don't know of any rigid definition of the
`term image sensor. To me if someone is using that term
`I guess it probably means a sensor that can be used to
`capture an image.
` Q. And a linear array can be used to capture an
`image, correct?
` A. Yes, it could by doing line by line scanning.
` Q. Sure. Are image -- are two dimensional arrays,
`in general, interchangeable with linear arrays for use
`as image sensors?
` A. It wouldn't be as simple as just doing a direct
`replacement, no.
` Q. Why not?
` A. A linear array requires some method of scanning
`across the scene. For example, a motorized device to
`perform that line by line scanning across the scene.
` Q. And in contrast a two dimensional array
`wouldn't need an actual scan to occur, correct?
` A. You could use a motorized scanning setup with a
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`two dimensional array, but it could also be used without
`that.
` Q. For example, in modern day, an iPhone today,
`that's -- that relies on two dimensional array of
`sensors, right?
` A. I don't know exactly what kind of sensing
`device is in, for example, a modern iPhone.
` Q. What kind of cell phone do you have?
` A. I have an iPhone, but I haven't seen any
`documents about the actual devices that are used in my
`particular iPhone.
` Q. From your usage of your iPhone -- I assume you
`have taken pictures from your iPhone before?
` A. Yes.
` Q. From your usage of the iPhone to take pictures,
`do you believe that it has a linear array of sensors?
` A. I assume it does not have a linear sensing
`array.
` Q. Why?
` A. I assume it has a two dimensional sensing
`array.
` Q. Okay. Do you recall whether the -- do you
`recall whether the array that was used to capture the
`video that you used for the automobile detection work
`that is referenced in the last clause of Paragraph 7 was
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`a linear array or a two dimensional array?
` A. I don't know what type it would have been.
` Q. Would it surprise you if it was one versus the
`other?
` A. No.
` Q. As of 2010 do you agree with me both types of
`sensing configurations were known?
` A. Excuse me, as of which date?
` Q. 2010.
` A. Yes.
` Q. Do you have any idea when the first digital
`cameras were commercially available, just roughly?
` A. No. I wouldn't be able to give you a date.
` Q. Okay. If you look back in your declaration,
`please, Exhibit 2002, Paragraph 6, the first sentence
`lists the name of the department you work for at
`Arizona, correct?
` A. Yes.
` Q. And it's called the Department of Electrical
`and Computer Engineering and the College of Optical
`Sciences, right?
` A. The department I work for is the Department of
`Electrical and Computer Engineering. I also teach
`classes in the College of Optical Sciences.
` Q. So those are two different organizations within
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`the university?
` A. That is correct.
` Q. What classes do you teach in the College of
`Optical Sciences?
` A. The classes I teach are listed in that
`paragraph. The ones that have the acronym OPTI are the
`ones that are offered within the College of Optical
`Sciences. So that includes digital image processing,
`and digital image analysis.
` Q. Okay. In those classes those are offered
`jointly through the ECE department and the College of
`Optical Sciences, correct?
` A. That's correct.
` Q. Do those courses focus at all on the lenses
`that are used in front of imaging devices or image
`sensors?
` A. I do make reference to some of the hardware
`aspects of optical imaging in the introductory parts of
`those two courses because it sometimes is relevant. But
`since the focus of those two courses is on image
`processing and image analysis, the focus is not on the
`optical lenses.
` Q. Would it be fair to say the focus of the
`courses assumes the image has already been captured and
`stored?
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` A. The courses address how to process the images
`after they have been captured and stored, but in the
`lectures I also discuss the image acquisition process so
`that the students would have the right background to
`understand what's being discussed.
` Q. In either course do you teach the difference
`between a linear array and two dimensional array for
`capturing images?
` A. In the digital imaging process course I have
`discussed the -- some of the different image sensing
`modalities, for example, line scanning versus capturing
`a full image in one snapshot.
` Q. And is that just taught as a background
`technology or does that affect any of the digital
`imaging processing that is the focus of the course?
` A. Both.
` Q. How does the teaching of the difference between
`a line -- a linear array and two dimensional array play
`into the digital imaging processes of the piece of that
`course?
` A. It sometimes has a bearing on the type of data
`that's captured. For example, range imaging results in
`a different type of data from optical sensing. And so I
`discuss that so that the students have the right
`background to understand some subsequent lecture
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`material that distinguishes between those different
`types of data.
` Q. What is range imaging?
` A. Range imaging is a technique for capturing the
`range or distance to different points in a scene.
` Q. Does that involve the use of two different
`sensor lens combinations?
` A. It involves -- it can be done in different
`ways. One way is to have a flying spot scanner that
`emits light that hits a point in the scene on an object,
`it is reflected back to the camera and is sensed. The
`time of flight measurement then gives some indication of
`the distance or range to that object point.
` Q. Okay. Are these -- are the courses listed in
`Paragraph 6 undergraduate courses?
` A. Some are.
` Q. Which ones are not?
` A. The course on digital signal processing is
`taught to both undergraduate and graduate students. The
`signal and systems course is undergraduate. And the
`circuit analysis course is undergraduate.
` Q. What about the advanced digital signal
`processing course?
` A. That is a graduate level course.
` Q. What about the digital image processing course?
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` A. Graduate level.
` Q. Is it fair to assume that if the course number
`starts with a four or a three it's a course that can be
`taught to undergraduates?
` A. That's correct.
` Q. Do you know if you were teaching any of these
`courses in 2010 or before?
` A. All of them I have taught during the time
`period on or before 2010.
` Q. Okay. Do you have any experience outside of
`your work in this case with document scanners?
` A. Yes.
` Q. How?
` A. I've used document scanners for decades for
`personal use and as part of my work at the university.
` Q. Have you ever worked on designing document
`scanner technology or have you just always been a user
`of it before this case?
` A. It -- I guess it depends on what you mean by
`designing document scanner technology.
` In my research I've done image processing and
`image analysis work that has lots of applications. Some
`of that could be used in document scanners. I don't
`know what other people have done with the work that I
`have published.
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` Q. Are you aware of anybody using the work you
`have published for the development of document scanners?
` A. No, not specifically for that.
` Q. And when I say "document scanners" are you
`understanding that to be flatbed versus overhead --
` A. I assume --
` Q. -- scanners?
` A. I assume you're meaning it generally?
` Q. Right. So your answers were under that
`assumption?
` A. Yes. I don't have direct knowledge of what
`everybody who has read my articles has done with the
`technology I have published.
` Q. Okay. Do you have any direct knowledge that
`any of the work you have done has found its way into
`digital camera technology?
` A. That's something I wouldn't have a way of
`knowing.
` Q. Okay. But, for example, you have never been
`hired as a consultant by Kodak to write algorithm for
`their cameras, right?
` A. I have not done work directly for Kodak for
`their cameras, as best I can recall.
` Q. Can you recall doing work directly for any
`company that manufactures cameras?
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` A. Not as a -- not for the purpose of developing
`technology for their cameras.
` Q. I don't want to mark this transcript
`confidential, so if I ask you a question that calls for
`confidential information, tell me.
` Can you think of any companies you have written
`image processing algorithms that were included in
`commercial products of any kind?
` A. Let me just give a general response that as a
`professor at the University of Arizona my work is
`focused on teaching and general purpose research. So
`the work that I do in my research, I publish. So that's
`the way I disseminate the -- the results of my efforts.
`I have not been actively doing development work --
`technical development work for private companies, at
`least in the last decade. So that's why I'm saying I
`don't recall --
` Q. I see.
` A. -- writing any specific image processing
`software for any specific company because that's not
`what I do.
` The focus of my work is teaching and doing
`research rather than product development.
` Q. Okay.
` A. Having said that, I published quite a few
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`technical articles on imaging processing and image
`analysis and I assume -- I hope that somebody has read
`some of those articles and that it -- the work I have
`done has been helpful to others. Maybe not indirectly
`impacting a specific commercial product but possibly in
`giving -- sparking ideas that may lead to the next
`technique that may indeed make it into a commercial
`product.
` Q. Okay. In your work at the university do you
`ever have to use image editing software, commercial
`editing software?
` A. Can you be more specific about what you mean by
`commercial editing software?
` Q. For example, Photoshop.
` A. Yes, I have used Photoshop.
` Q. Did you use Photoshop before 2010?
` A. Yes.
` Q. And you said you have an iPhone today, correct?
` A. Yes.
` Q. Do you know if you had an iPhone before 2010?
` A. I can't remember exactly when the iPhone came
`out, but I'm pretty sure I had one before 2010.
` Q. And you may not remember. Do you remember
`whether you were pre-2010 iPhone could take pictures?
` A. I'm pretty sure it could.
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` Q. Let's go back to Paragraph 2 of your
`declaration, please.
` And in Paragraph 2 you reference the word
`"anticipate."
` Do you see that in the second line?
` A. Yes.
` Q. Is it your understanding that petitioner in
`this case have made any anticipation challenges?
` A. I don't recall specifically, and I may not have
`been made aware of the full breadth of all the
`challenges that the petitioner has put forth.
` Q. Okay. If you would flip to Page 6, Paragraph
`18 of your declaration, please, Exhibit 2002.
` Paragraph 18 relates to objective indicia of
`nonobviousness, correct?
` A. Yes.
` Q. And you can confirm this, but it's in a
`section, Roman numeral five, starts on Page 5 called
`legal principles, right?
` A. Yes.
` Q. Do you offer any opinions about whether there
`are or are not objective indicia of nonobviousness in
`this declaration?
` A. I believe I have not offered such opinions in
`this declaration.
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` Q. And then if you would go back to Page 3,
`please, Paragraph 10 of your declaration. You reference
`-- this is, I think, a description of certain materials
`that you have considered; is that right?
` A. Yes.
` Q. As you sit here, can you think of any other
`materials that you considered that are not listed in
`Paragraph 10?
` A. Oh, nothing else comes to mind right now.
` Q. And part of the reason I ask is if you slip to
`the '751 patent, which is Exhibit 1001, Column 2.
` Let me know when you are there.
` A. Okay.
` Q. In Column 2 at Line 14 the '751 patent makes
`reference to something called US Patent 6,965,460.
` Do you see that?
` A. Yes.
` Q. Do you know if you read that patent?
` A. I don't recall specifically whether I read that
`patent or not.
` Q. I'm g

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