UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`ANCORA TECHNOLOGIES, INC.,
`Plaintiff,
`
`VS.
`
`HTC AMERICA, INC., a Washington
`corporation, HTC CORPORATION, a
`Taiwanese corporation,
`Defendant.
`
`)
`)
`)
`)
`)No. 2:16-cv-01919-RAJ
`)
`)
`)
`)
`)
`)
`)
`
`Deposition of JON B. WEISSMAN, Ph.D., taken on
`behalf of the Plaintiff, at 2040 Main Street, 14th
`Floor, Irvine, California, commencing at 8:29 a.m., on
`Monday, September 9, 2019, before CATHERINE ELISE
`NADEAU, CSR No. 11528, RPR.
`
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`IPR2021-01338
`ANCORA EX2003
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`1 APPEARANCES OF COUNSEL:
`2
`3
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`5
`
`For Plaintiff:
`BROOKS KUSHMAN P.C.
`BY: MARC LORELLI, ESQUIRE
`(Present via teleconference)
`1000 Town Center
`6 22nd Floor
`Southfield, Michigan 48075
`7 248.358.4400
`8
`
`For Defendants:
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`10 BY: BRIAN C. CLAASSEN, ESQUIRE
`DANIEL C. KIANG, ESQUIRE
`11 2040 Main Street
`14th Floor
`12 Irvine, California 92614
`949.760.0404
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`Page 3
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`PAGE
`5
`
`7
`
`1 INDEX
`2
`3 DEPONENT EXAMINED BY
`4
`JON B. WEISSMAN, Ph.D. MR. LORELLI
`5
`6 PLAINTIFF'S EXHIBITS FOR IDENTIFICATION:
`7 1 6.25.02 United States Patent Mullor, et al.,
`7 pages
`8
`2 The prosecution history, 179 pages 66
`9
`5 United States Patent and Trademark Office, 8
`10 Before the Patent Trial and Appeal Board,
`Apple Inc. vs. Ancora, Declaration of Jon
`11 B. Weissman, 76 pages
`12 6 12.31.12 Claim Construction Order, 10
`21 pages
`13
`7 United States Patent and Trademark Office, 9
`14 Before the Patent Trial and Appeal Board,
`HTC Corporation vs. Ancora Technologies
`15 Inc., Declaration of Jon B. Weissman,
`Ph.D., 52 pages
`16
`8 8.26.19 Declaration of Ian Jestice, with 69
`17 an attachment, 20 pages
`18 9 9.4.19 Declaration of Jon B. Weissman, 9
`Ph.D. Regarding Claim Construction, with
`19 an attachment, 27 pages
`20 10 4.23.18 United States Court of Appeals 80
`for the Federal Circuit, Brief of
`21 Appellees HTC America, Inc. and HTC
`Corporation, 3 pages
`22
`11 11.16.18 United States Court of Appeals 57
`23 for the Federal Circuit, Ancora Technologies,
`Inc. vs. HTC America, Inc., HTC Corporation,
`24 13 pages
`25
`
`Page 2
`
`Page 4
`1 PLAINTIFF'S EXHIBITS FOR IDENTIFICATION: (Continued)
`2
`3 12 3.3.14 United States Court of Appeals for 10
`the Federal Circuit, Ancora Technologies,
`4 Inc. vs. Apple, Inc., 15 pages
`13 Microsoft Press Computer User's Dictionary, 78
`7 pages
`
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`Page 5
`1 IRVINE, CALIFORNIA; MONDAY, SEPTEMBER 9, 2019
`2 8:29 A.M.
`3 -o0o-
`4 JON B. WEISSMAN, PH.D.,
`5 having been first duly sworn, was
`6 examined and testified as follows:
`7 -o0o-
`8 EXAMINATION
`9 BY MR. LORELLI:
`10 Q Good morning, Dr. Weissman.
`11 A Good morning.
`12 Q My name is Marc Lorelli. I represent the
`13 plaintiff Ancora Technologies in this matter. Nice
`14 to meet you.
`15 A Same.
`16 Q I assume there's other folks that are
`17 present on that end. So if maybe we could have a
`18 roll call, that would be helpful.
`19 MR. CLAASSEN: Mark, this is Brian Claassen on
`20 behalf of HTC.
`21 MR. KIANG: Mark, this is Daniel Kiang, also on
`22 behalf of HTC.
`23 Q BY MR. LORELLI: Dr. Weissman, I assume
`24 you've been deposed a number of times before.
`25 A Yes, I have.
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`Page 6
`1 Q We don't need to go through the formalities
`2 and you know what to expect; correct?
`3 A Yes, I do.
`4 Q How many times have you been deposed as an
`5 expert witness in a patent case?
`6 A I don't have the exact number. I would say
`7 approximately 12.
`8 Q And where is your current employment, sir?
`9 A University of Minnesota Twin Cities.
`10 Q And what -- as a professor what types of
`11 classes do you teach?
`12 A I teach a large variety of classes in
`13 computer systems, operating systems, distributed
`14 systems, networking, computer architecture.
`15 Q You have provided a number of declarations
`16 with regards to the '941 patent; correct?
`17 A That's correct.
`18 MR. LORELLI: And I'll ask the court reporter to
`19 mark as Weissman Exhibit 1 the patent that is in the
`20 stack of materials in front of her.
`21 MR. CLAASSEN: Marc, this is Brian. Do you have
`22 multiple copies of each exhibit in the folders?
`23 MR. LORELLI: There should be two copies of each
`24 exhibit in the folder, one to mark and one for you,
`25 Brian.
`
`Page 7
`
`1 MR. CLAASSEN: Thank you.
`2 (Plaintiffs Exhibit No. 1 was marked
`3 for identification.)
`4 Q BY MR. LORELLI: So, Dr. Weissman, you've
`5 seen this patent before; correct?
`6
`A Yes, I have.
`7
`Q And you've reviewed this patent?
`8
`A I've read the patent, yes.
`Q And you were first employed by Apple, I
`9
`10
`believe, with regards to this patent --
`11 A
`I believe that's --
`12 Q
`-- is that right?
`13 A
`I believe that's correct.
`14 Q
`And you submitted a declaration on behalf
`15
`of Apple?
`16
`A Yes, I did.
`17
`Q And then at some point later HTC or HTC's
`18
`attorneys contacted you; is that right?
`19
`A That's correct.
`20
`Q And what did they task you to do?
`21
`A They tasked me to take a look at the '941
`22
`patents and also a set of prior art and do analysis.
`23
`Q Similar to what Apple asked you to do?
`24
`A Similar.
`25
`Q And you submitted a declaration for -- on
`
`Page 8
`
`1 behalf of HTC; correct?
`2 A That's correct.
`3 Q Then more recently you did another
`4 declaration on behalf of HTC; right?
`5 A That's correct.
`6 MR. LORELLI: So if we could why don't we start
`7 in chronological order. Court reporter, if you
`8 could please take out the folder Exhibit No. 5 and
`9 mark that as Weissman Exhibit 5.
`10 (Plaintiffs Exhibit No. 5 was marked
`11 for identification.)
`12 Q BY MR. LORELLI: Do you recognize, sir,
`13 what we've marked as Weissman Exhibit 5?
`14 A Yes, I do.
`15 Q And what is it?
`16 A It's a declaration that I signed in the
`17 Apple/Ancora matter.
`18 Q I just lost voice volume. Can you hear me?
`19 A I can hear you.
`20 Q I did not hear your answer. So I'll just
`21 ask you to repeat it. I could just hear you
`22 responding to my question, so hopefully it was just
`23 a glitch.
`24 A Yeah. So this is a declaration that I
`25 signed in the Apple/Ancora matter.
`
`Page 9
`1 MR. LORELLI: Madam Court Reporter, if we can
`2 mark as Exhibit No. 7 what's in the folder No. 7.
`3 (Plaintiffs Exhibit No. 7 was marked
`4 for identification.)
`5 Q BY MR. LORELLI: Dr. Weissman, do you
`6 recognize what we've marked as Weissman Exhibit
`7 No. 7?
`8 A Yes, I do.
`9 Q And what is it?
`10 A It's a declaration that I wrote, signed in
`11 the HTC/HTC America/Ancora Technologies matter.
`12 MR. LORELLI: Madam Court Reporter, if we could
`13 pull out what's in the folder Exhibit 9 and please
`14 mark that as Weissman Exhibit 9, please.
`15 (Plaintiffs Exhibit No. 9 was marked
`16 for identification.)
`17 Q BY MR. LORELLI: Dr. Weissman, do you
`18 recognize what we've marked as Weissman Exhibit 9?
`19 A Yes, I do.
`20 Q And what is it?
`21 A It's a declaration that I recently filed --
`22 or signed in the Ancora/HTC matter with respect to
`23 claim construction.
`24 Q I'm going to ask you some questions about
`25 Exhibit No. 7. So if you can have that in front of
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`Page 10
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`you.
`
`Actually, let me do two other
`exhibits first. If we could pull out Exhibit 6,
`please, Madam Court Reporter.
`(Plaintiffs Exhibit No. 6 was marked
`for identification.)
`Q BY MR. LORELLI: Dr. Weissman, do you
`recognize what we've marked as Weissman Exhibit
`No. 6?
`A Yes, I do.
`Q And what is it?
`A It's a claim construction order in the
`Ancora/Apple matter.
`MR. LORELLI: Madam Court Reporter, can we pull
`out Exhibit No. 12.
`(Plaintiffs Exhibit No. 12 was marked
`for identification.)
`Q BY MR. LORELLI: Dr. Weissman, we've marked
`as Exhibit No. 12 a document.
`Do you recognize it?
`A I don't recall seeing this document before.
`Q What is the title of the document, sir?
`A The title of the document is "United States
`Court of Appeals for the Federal Circuit, Ancora
`Technologies, Incorporated Plaintiff-Appellate
`
`1
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`Page 11
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`1 versus Apple, Incorporated Defendant-Cross
`2 Appellant."
`3 Q You don't recall seeing that document
`4 before?
`5 A Sitting here I don't recall.
`6 Q Do you agree, sir, that -- well, let me
`7 back up.
`8 You've done a declaration with regards to
`9 claim construction that was the Exhibit No. 9;
`10 correct?
`11 A Yes, that's correct.
`12 Q Do you agree with me, sir, that claim terms
`13 are given their ordinary and accustomed meaning as
`14 would be understood by one of ordinary skill in the
`15 art?
`16 MR. CLAASSEN: Objection to form.
`17 THE DEPONENT: It depends what context were
`18 talking about.
`19 Q BY MR. LORELLI: Let me ask you to go to --
`20 well, what do you mean? What type of context?
`21 A Well, there's a different standard in --
`22 formerly in IPR and CBM proceedings, which was the
`23 BRI standard. What you've cited to is the Phillip
`24 (phonetic) standard which is typically in District
`25 Court cases and now is also standard I believe for
`
`Page 12
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`1 IPR/CBMs.
`2 Q So you agree with that statement at least
`3 as of today for all proceedings.
`4 MR. CLAASSEN: Objection to form.
`5 THE DEPONENT: I'm not an attorney, so can you
`6 please repeat the words?
`7 Q BY MR. LORELLI: Sure.
`8 The language was -- the question was do you
`9 agree that claim terms are given their ordinary and
`10 accustomed meaning as would be understood by one of
`11 ordinary skill in the art?
`12 MR. CLAASSEN: Objection to form.
`13 THE DEPONENT: I would add in the time frame of
`14 the matter under consideration.
`15 Q BY MR. LORELLI: So the answer is yes with
`16 your qualifier --
`17 A Yes.
`18 Q -- is that right?
`19 A Yes.
`20 Q If I could -- you studied the claims of the
`21 '941 patent in detail; correct?
`22 A That's correct.
`23 Q And did you find any concepts recited in
`24 the claims that were not conventional or well known
`25 to persons of ordinary skill in the art before
`
`Page 13
`1 1988 -- I'm sorry-- 1998? Do you need me to repeat
`2 that, sir?
`3 A I do.
`4 Q Based on your review of the '941 patent and
`5 its related materials, did you find any concepts
`6 recited in the claims that were not conventional or
`7 well known to persons of ordinary skill in the art
`8 before 1998?
`9 A (Deponent reviewing document.)
`10 I didn't find any terms that were
`11 nonconventional. But I would not agree that all
`12 terms have clear meaning.
`13 Q Can I ask you to get Exhibit No. 7 in front
`14 of you, sir? Do you have it?
`15 A I do.
`16 Q Could you go to paragraph 11 that's on
`17 page 4?
`18 A (Complies.) I'm there.
`19 Q Could you read the last sentence into the
`20 record, please?
`21 A "For example, Figure 2 only" -- "(one
`22 of only two figures in the '941 patent)
`23 depicts these four basic steps."
`24 Q Perhaps we are miscommunicating. Is it
`25 Exhibit 7 that you have in front of you, sir?
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`Page 14
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`1 A It is Exhibit 7.
`2 Q And Exhibit 7 is your declaration in the
`3 HTC/CBM; correct?
`4 A It is.
`5 Q And could you go to paragraph 11?
`6 A I'm sorry, I was on page 11.
`7 Q Ah.
`8 A My mistake. The last sentence in
`9 paragraph 11?
`10 Q Paragraph, yeah.
`11 A Paragraph 11 states:
`12 "Based on my review of the '941 patent,
`13 I did not find any concepts recited in the
`14 claims that were not conventional and well
`15 known to persons of ordinary skill in the art
`16 before 1998."
`17 Q And I asked you that question and you had a
`18 qualifier in your testimony. Do you recall that
`19 just a minute ago?
`20 A I do.
`21 Q And you said not all terms have clear
`22 meaning"?
`23 A I did say that, yes.
`24 Q What term or terms are you referring to?
`25 A I'm referring to the term "agent."
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`Page 15
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`1 Q Any other terms, sir?
`2 MR. CLAASSEN: Objection. Relevance.
`3 THE DEPONENT: As I stated, in the CBM
`4 declaration there were other terms that I determined
`5 were indefinite.
`6 Q BY MR. LORELLI: What terms were those?
`7 And perhaps you can point me to that.
`8 A Paragraph 75, the "unique key" of claim 5
`9 is indefinite. Claim 16, paragraph 83, "second
`10 non-volatile memory" is indefinite. Claim 17, "the
`11 license record" is indefinite. That appears to be
`12 the scope.
`13 Q Let's talk about-- is it your opinion that
`14 claim 1 of the '941 patent is directed to
`15 controlling access based on data stored in a
`16 particular location?
`17 A I'm sorry, can you repeat the question?
`18 Q Sure.
`19 Is it your opinion that the claims-- I'm
`20 sorry. Is it your opinion that the claim 1 of the
`21 '941 patent is directed to controlling access based
`22 on data stored in a particular location?
`23 MR. CLAASSEN: Objection. Relevance.
`24 THE DEPONENT: (Deponent reviewing document.)
`25 As I stated in the CBM declaration, claim 1
`
`Page 16
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`1 is referring to that abstract idea, yes.
`2 Q BY MR. LORELLI: And you think that the
`3 claims are directed to controlling access based on
`4 data stored in a particular location; correct? It
`5 was paragraph 50 in your declaration, if you care to
`6 look at it.
`7 A (Deponent reviewing document.)
`8 That's what it states in paragraph 50.
`9 Q And that's your testimony?
`10 A Yes.
`11 Q Can you turn back to page 12, paragraph 34.
`12 A Yes.
`13 Q Do you have it, sir?
`14 A I do.
`15 Q Above paragraph 34 there's a figure from
`16 the patent.
`17 A I see it.
`18 Q Are you familiar with it?
`19 A lam.
`20 Q And are you familiar with the claims have a
`21 four-step process in them?
`22 A Well, this embodiment is showing four
`23 steps.
`24 Q Do you agree that claim 1 of the '941
`25 patent claims those four steps?
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`Page 17
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`1 A (Deponent reviewing document.)
`2 Claim 1 is referring to the functions of
`3 selecting, setting up, verifying and acting.
`4 Q Can those four -- let me ask this question.
`5 Are those four steps an algorithm in your
`6 view?
`7 A A figure is not an algorithm, no.
`8 Q So you're telling me that in your view you
`9 would not -- you would not opine that the four steps
`10 shown in Figure 2 -- strike that. That's a poorly
`11 worded question.
`12 Your testimony is that Figure 2 does not
`13 show an algorithm; is that true?
`14 A Figure 2 contains four verbs: Selecting,
`15 setting up, verifying, acting. To me that's not an
`16 algorithm. It's not even close.
`17 Q What does one have to -- what
`18 qualifications does something have to have to be an
`19 algorithm in your view, sir?
`20 A Algorithm has to describe how to do
`21 something.
`22 Q And what does Figure 2 describe how to do?
`23 MR. CLAASSEN: Objection. Form.
`24 THE DEPONENT: Figure 2 is just describing
`25 high-level functional steps. It doesn't tell me how
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`Page 18
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`1 to do it.
`2 Q BY MR. LORELLI: So Figure 2 shows four
`3 steps; correct?
`4 A Four functional steps.
`5 Q And those steps -- four functional steps in
`6 your view is not an algorithm; is that fair?
`7 A Certainly not looking at the figure. But
`8 also in the way it's described in the specification
`9 I conclude that there is no algorithm.
`10 Q Tell me what an algorithm would be for the
`11 first step.
`12 MR. CLAASSEN: Objection. Form.
`13 THE DEPONENT: An algorithm would disclose
`14 software that tells you how to make such a selection
`15 from where you're selecting, what are the parameters
`16 of that selection, how it works, how you do it.
`17 Q BY MR. LORELLI: Tell me what an algorithm
`18 would be for the last step, acting.
`19 MR. CLAASSEN: Objection. Form.
`20 THE DEPONENT: An algorithm for the acting step
`21 would tell you, you know, what actions are
`22 performed, how they're performed, any contingencies
`23 with respect to whether to perform that action and
`24 so forth.
`25 Q BY MR. LORELLI: When you say "how it is
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`Page 19
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`1 performed," what do you mean?
`2 A I mean the specifics, offer instructions
`3 and the logic contained within those and the context
`4 of that.
`5 Q For the third step, verifying, what would
`6 be an algorithm for verifying in your view, sir?
`7 MR. CLAASSEN: Objection. Form.
`8 THE DEPONENT: Again, the specific software
`9 instructions that show me -- that describe how to do
`10 the verification with detail.
`11 Q BY MR. LORELLI: And I'll finish it with
`12 the last question. What algorithm would need to be
`13 disclosed in your view for the setting-up step?
`14 MR. CLAASSEN: Objection. Form.
`15 THE DEPONENT: Again, like with the other
`16 functional blocks, a setting-up algorithm would have
`17 to describe, you know, how the setting up is being
`18 done in specifics, what --
`19 Q BY MR. LORELLI: Can you -- I'm sorry, I
`20 don't mean to speak over you. And I apologize and I
`21 will try to avoid that. Sometimes with the delay on
`22 these videoconferences it gets a little bit more
`23 difficult. But I apologize.
`24 You were saying, sir?
`25 A My thought's finished.
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`Page 20
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`1 Q With regards to setting up you said
`2 something about how it would be accomplished?
`3 A Correct.
`4 Q Can you give me an example of how -- or
`5 what disclosure you would need to determine how that
`6 was accomplished?
`7 A In this particular case "setting up" refers
`8 to verification structure. So I would need details
`9 about the data structure, how it is initialized, how
`10 it is used, what is using it, what is doing the
`11 setting up, how is it doing the setting up. None of
`12 that's present in the patent.
`13 Q As one skilled in the art, would you know
`14 how to do that? Let me be more specific in my
`15 question, Doctor.
`16 As one of ordinary skill in the art, would
`17 you know how to set up a verification structure?
`18 MR. CLAASSEN: Objection. Vague as to time.
`19 THE DEPONENT: (Deponent reviewing document.)
`20 I would likely know how to do it, but the
`21 patent doesn't provide any details for me to figure
`22 out how to do it.
`23 Q BY MR. LORELLI: As one of skill in the
`24 art, sir, would you know how to set up a
`25 verification structure in the erasable non-volatile
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`Page 21
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`1 memory of the BIOS?
`2 MR. CLAASSEN: Objection. Vague as to time.
`3 THE DEPONENT: I would have to sit down and
`4 develop an algorithm for doing that in the context
`5 of the entire system. I've not thought about that.
`6 I probably could do it. But the patent doesn't
`7 provide me a roadmap for how to do it.
`8 Q BY MR. LORELLI: As of 1998, you as one of
`9 skill in the art, would you know how to set up a
`10 verification structure in the erasable non-volatile
`11 memory of the BIOS?
`12 A I would know how to do that, but I would
`13 need to bring in additional documents and additional
`14 references to, for example, use the API software
`15 routines of the BIOS. But I would have to develop
`16 my own algorithm, and that's not disclosed in the
`17 '941 patent.
`18 Q But that's within your skill as one of
`19 ordinary skill in the art as of 1998; correct?
`20 A It would be obvious to one of skill in the
`21 art how to do that in 1998 given understanding of
`22 priority references.
`23 Q I'm not asking about obviousness, sir. As
`24 one of skill in the art, would you be able to set up
`25 a verification structure in the erasable
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`Page 22
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`1 non-volatile memory of the BIOS in 1998?
`2 A You're asking about enablement, which I
`3 think is a legal issue. So that's not something
`4 I've thought about.
`5 Q I wasn't asking about enablement, sir.
`6 Would one of ordinary skill in the art know how to
`7 do that? And I can rephrase the question if you'd
`8 like. I'm not asking a legal question. I'm asking
`9 you as one of ordinary skill in the art providing
`10 this declaration.
`11 My question is, as of 1998 would one of
`12 skill in the art know how to set up a verification
`13 structure in the erasable non-volatile memory area
`14 of the BIOS?
`15 A They would likely have sufficient knowledge
`16 to do that, yes.
`17 Q If we could turn in your declaration,
`18 please, to page 19.
`19 A CBM?
`20 MR. CLAASSEN: Which declaration are you
`21 referring to? Which exhibit?
`22 MR. LORELLI: Still Exhibit No. 7. Thank you
`23 for the clarification, Brian.
`24 THE DEPONENT: I'm there.
`25 Q BY MR. LORELLI: It's talking about the ROM
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`Page 23
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`1 section of a BIOS. Do you see that?
`2 A I do see that in paragraph 52.
`3 Q And information can be stored in a ROM
`4 section of the BIOS; correct?
`5 A It can be at least once.
`6 Q And the same is true for an EEPROM section
`7 of the BIOS; correct?
`8 MR. CLAASSEN: Objection. Vague.
`9 THE DEPONENT: (Deponent reviewing document.)
`10 It can be. And I'll qualify the previous
`11 answer. Provided you have the interface and you're
`12 given the software connection to do that.
`13 Q BY MR. LORELLI: How is memory stored in
`14 that BIOS area?
`15 MR. CLAASSEN: Objection. Vague.
`16 THE DEPONENT: Memory is stored, so I don't
`17 understand the question.
`18 Q BY MR. LORELLI: Sure.
`19 Once you -- once something is stored there,
`20 how do you find it then?
`21 A You have to know the address. Memory has
`22 addresses. Right? So to find it, you need to
`23 know -- you need to locate the address for the
`24 memory in question.
`25 0 And that address would be similar to a file
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`Page 24
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`1 structure?
`2 A No. Those are completely different things.
`3 Q How are they different?
`4 A File is an attraction of data stored on
`5 persistent storage devices. It's a completely
`6 different story.
`7 Q In order to find something in a file
`8 storage system you need to know where it is;
`9 correct?
`10 A To locate the bites of a file you need to
`11 know where they're stored, true.
`12 Q And that storage can be done via an
`13 address; right?
`14 A A disk has -- lays out its data in terms of
`15 addresses. That's true.
`16 Q Dr. Weissman, I'm sorry, but it was
`17 breaking up on me. The video feed was breaking up
`18 on me. Could we get that-- or maybe I can have
`19 that answer read back to me, please. Or you can
`20 repeat it. That's fine too.
`21 A Yes, the bites of information on a disk
`22 have an address.
`23 Q And that address could be located in a file
`24 structure.
`25 A Well, a file is something that sits on top
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`1 of all of that. Talking about a physical disk,
`2 bites of information are stored at various
`3 locations. A file is a completely different thing.
`4 File is something that wraps all of that. File is
`5 something a programmer sees.
`6 Q In the BIOS how is that information stored,
`7 whether it be in ROM or EEPROM?
`8 MR. CLAASSEN: Objection. Vague.
`9 THE DEPONENT: How is what information stored?
`10 Q BY MR. LORELLI: Any information. Is there
`11 a file system?
`12 A It would probably depend on particular BIOS
`13 implementation but generally probably not. File
`14 systems are created by operating systems, and the
`15 operating system hasn't even run yet.
`16 Q So the BIOS still has addresses to store
`17 information.
`18 A Well --
`19 Q I'm sorry, the --
`20 A BIOS is a set of instructions that are
`21 stored in a memory.
`22 Q And how are those instructions located?
`23 A On most computing devices the hardware is
`24 programmed to power on, go to a specific address in
`25 the BIOS and start executing those instructions.
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`1 Q Do you agree that the claims of the '941
`2 patent used BIOS memory as memory to store data?
`3 A (Deponent reviewing document.)
`4 To the extent a licensed record or a key is
`5 data, then I would agree to that.
`6 Q Let's go to paragraph 54 in your
`7 declaration, sir. It's Exhibit No. 7.
`8 A Okay.
`9 Q Can you read into the record the second
`10 sentence of paragraph 54.
`11 A "The claims describe the use BIOS
`12 memory as memory to store data."
`13 Q Do you agree with that sentence?
`14 A I wrote it, so I agree.
`15 Q And do you also agree that there's nothing
`16 in the claims that specifies how to write data into
`17 BIOS memory?
`18 A (Deponent reviewing document.)
`19 I would agree to that.
`20 Q You also would agree that the specification
`21 discloses EEPROM manipulation commands as the
`22 mechanism to set up a verification structure in the
`23 erasable non-volatile memory area of the BIOS,
`24 correct?
`25 MR. CLAASSEN: Objection to form.
`
`Page 27
`1 THE DEPONENT: (Deponent reviewing document.)
`2 Well, I would agree that the invention --
`3 summary of the invention does describe using EEPROM.
`4 But column 6 is -- in the detailed description
`5 describes the setting up process of a verification
`6 structure, and there it doesn't mention EEPROM
`7 commands.
`8 Q BY MR. LORELLI: So let's go to where it
`9 does mention it. You said that was in the summary
`10 of the invention?
`11 A Yes.
`12 Q And I'm looking at column 1, line 65
`13 through column 2, line 9.
`14 MR. CLAASSEN: Just to be clear, we've now
`15 switched to Exhibit No. 1?
`16 MR. LORELLI: Correct.
`17 THE DEPONENT: Okay.
`18 Q BY MR. LORELLI: Are you familiar with that
`19 portion of the specification, sir?
`20 A lam.
`21 Q And would you agree with me that that
`22 portion of the specification discloses using EEPROM
`23 manipulation commands to add, modify or remove
`24 licenses?
`25 A That's what the spec says, yes.
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`Page 28
`
`1 Q And that is the portion of the BIOS that's
`2 the erasable non-volatile memory area of the BIOS;
`3 correct?
`4 A EEPROM is erasable memory, yes.
`5 Q So you will agree with me, sir, that the
`6 specification discloses using EEPROM manipulation
`7 commands to set up the verification structure in the
`8 erasable non-volatile memory area of the BIOS;
`9 correct?
`10 MR. CLAASSEN: Objection to form.
`11 THE DEPONENT: Well, in the paragraph we just
`12 read it doesn't say to set up a verification
`13 structure. Its describing some basic operations.
`14 Q BY MR. LORELLI: Does it say to store the
`15 licenses?
`16 MR. CLAASSEN: Objection to form.
`17 THE DEPONENT: (Deponent reviewing document.)
`18 It does say to add licenses, yes.
`19 Q BY MR. LORELLI: What's in a verification
`20 structure, sir?
`21 A (Deponent reviewing document.)
`22 It's a structure of information that is
`23 required to do verification of the program.
`24 Q And the claim calls for it having a license
`25 record; correct?
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`Page 29
`
`1 A At least one license record, yes. But it
`2 doesn't say what "setting up" means.
`3 Q Would you agree that using EEPROM
`4 manipulation commands are conventional techniques to
`5 write to the erasable non-volatile memory area of
`6 the BIOS?
`7 MR. CLAASSEN: Objection to form.
`8 THE DEPONENT: (Deponent reviewing document.)
`9 They're not invented because they already
`10 have been developed by others and used. But they're
`11 not easy to use, and the specification doesn't tell
`12 you how to use them or what they are.
`13 Q BY MR. LORELLI: So you -- they're not --
`14 let me back up a question.
`15 Is it your opinion that those EEPROM
`16 manipulation commands are conventional techniques?
`17 A (Deponent reviewing document.)
`18 I would agree they're conventional
`19 techniques.
`20 Q But you say they're not easy to use. What
`21 did you mean by that, they're not easy to use?
`22 A They're fairly low level. And low level --
`23 Q What does that mean, sir?
`24 A "Low level" means that the programmer has
`25 to deal with a lot of details than they would from
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`1 higher-level routines.
`2 Q Are you familiar with standards to write
`3 information to the erasable non-volatile memory area
`4 of the BIOS as of 1998?
`5 A (Deponent reviewing document.)
`6 I believe there are some specifications
`7 that do describe how to do that.
`8 Q And in fact you testified that one of skill
`9 in the art would know of those specifications,
`10 right, as of 1998?
`11 A One of skill in the art would know where to
`12 look for those specifications.
`13 Q And one of skill in the art would know how
`14 to use those specifications, right, sir, as of 1998?
`15 A It would be obvious to a person of ordinary
`16 skill in the art how to do that.
`17 Q Not asking about obviousness, sir. Would
`18 one of ordinary skill in the art know how to use
`19 these specifications with regards to writing to the
`20 erasable non-volatile memory area of the BIOS in
`21 1998?
`22 MR. CLAASSEN: Objection to form.
`23 THE DEPONENT: I believe I answered the
`24 question.
`25 Q BY MR. LORELLI: And what was the answer,
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`
`1 sir?
`2 A It would have been obvious to one of
`3 ordinary skill in the art how to do that.
`4 Q I'm not asking about obviousness, sir. My
`5 question didn't have an obviousness component to it.
`6 I'm asking would one of ordinary skill in
`7 the art know how to use the specifications in 1998
`8 to write to the erasable non-volatile memory area of
`9 the BIOS?
`10 MR. CLAASSEN: Objection. Asked and answered.
`11 THE DEPONENT: If a person of ordinary skill in
`12 the art was given those specifications, the answer
`13 is yes. There are no specifications alluded to in
`14 the '941 patent.
`15 Q BY MR. LORELLI: Do you know what EEPROM
`16 manipulation commands are, sir?
`17 A It's a set of commands to operate on
`18 erasable read-only memory.
`19 Q Have you ever written such a manipulation
`20 command?
`21 A I don't write software at that level, yes
`22 [sic]. So no.
`23 Q You work on software at the higher level;
`24 right?
`25 A I work in operating systems and layers
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`Page 32
`1 above that. So I use BIOS and use those structures,
`2 but I don't write drivers for BIOS or other...
`3 Q When you say you use those structures, what
`4 did you mean? What structures do you use?
`5 A I've taught how to use BIOS in operating
`6 system classes, how to access it, what it is, how
`7 it's implemented, those kinds of things.
`8 Q And what structures were you referring to
`9 in BIOS in your earlier answer?
`10 A Which earlier answer?
`11 Q When you were talking about writing BIOS,
`12 or using BIOS.
`13 A I'm sorry, was it the question you just
`14 asked?
`15 Q Yes. Two questions ago. I'll ask it
`16 again.
`17 When you discussed interacting with
`18 structures of the BIOS, what structures are you
`19 referring to?
`20 A I'm talking about explaining the different
`21 implementations, flash memory, different ways it is
`22 implemented and describing that to students.
`23 Q And when you teach about how to access it,
`24 how do you access it?
`25 A I describe sort of different high-level
`
`Page 33
`1 approaches to doing that. We don't actually do it
`2 in class, but I talk about different ways of
`3 flashing BIOS memory, those sorts of things.
`4 Q I was asking about accessing, not flashing.
`5 What do you teach about accessing BIOS memory?
`6 A I teach that it can be accessed and here's
`7 different methods of doing it. We don't actually do
`8 it.
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Q So your students are expected to be able to
`access them based on your high-level description?
`A My students are expected to understand the
`process, not necessarily reproduce it.
`Q Have you ever used the term "agent" before
`in your classes?
`A I've been teaching for over 25 years. I
`would imagine the term came up. We've read in many
`classes research papers that probably have used that
`term.
`Q And how is that term used in your field,
`sir?
`A In my opinion it is used essentially as a
`nance [sic] for software. It's a marketing term.
`It has -- any software one could describe as an
`"agent," and I've seen that happen.
`O So you're saying its a word to describe
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`1 software?
`2 A I'm saying many people in -- certainly in
`3 the '90s time frame tended to sprinkle the pixie
`4 dust "agent" on any software to make it seem more
`5 exciting, more marketable. But at the end of the
`6 day it was just software.
`7 Q So in your experience with the term "agent"
`8 it was used to refer to software; correct?
`9 A In my specific experience, generally
`10 speaking it referred to software. Occasionally
`11 there are papers that talk about, you know, hardware
`12 agents. Generally speaking the term was referring
`13 to some kind of software.
`14 Q Let me ask you to pull up Exhibit No. 9
`15 that was previously marked, sir.
`16 MR. CLAASSEN: Marc, if you're switching to
`17 another exhibit, can we take a two-minute bathroom
`18 break?
`19 MR. LORELLI: Certainly. You guys want to take
`20 ten minutes?
`21 THE DEPONENT: That's fine.
`22 MR. LORELLI: That's okay?
`23 MR. CLAAS