UNITED STATES PATENT AND TRADEMARK OFFICE
`-------------------------------------
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`-------------------------------------
`NINTENDO CO., LTD., and
`NINTENDO OF AMERICA, INC.,
`Petitioners,
`v.
`ANCORA TECHNOLOGIES, INC.,
`Patent Owner,
`-------------------------------------
`Case No. IPR2021-01338
`U.S. Patent No. 6,411,941 B
`
`DEPOSITION OF DAVID MARTIN, PhD
`Thursday, July 14, 2022
`8:00 a.m. PST
`
`Job No.: 455629
`Pages: 1 - 188
`Reported By: Cara Foster, RPR, CSR No. 11973
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`Roku EX1035
`Roku v. Ancora
`IPR2021-01406
`
`
`-------------------------------------
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`-------------------------------------
`NINTENDO CO., LTD., and
`NINTENDO OF AMERICA, INC.,
`Petitioners,
`v.
`ANCORA TECHNOLOGIES, INC.,
`Patent Owner,
`-------------------------------------
`Case No. IPR2021-01338
`U.S. Patent No. 6,411,941 B
`
`DEPOSITION OF DAVID MARTIN, PhD
`Thursday, July 14, 2022
`8:00 a.m. PST
`
`Job No.: 455629
`Pages: 1 - 188
`Reported By: Cara Foster, RPR, CSR No. 11973
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`Roku EX1035
`Roku v. Ancora
`IPR2021-01406
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`
`
`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
`
`2
`
`Deposition of DAVID MARTIN,
`PhD, conducted virtually via Zoom videoconference.
`
`Pursuant to notice, before Cara Foster,
`Registered Professional Reporter and Stenographic
`Certified Shorthand Reporter Number 11973, in and
`for the State of California.
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`3
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` A P P E A R A N C E S
`
`FOR THE PETITIONERS, NINTENDO CO., LTD., and
`NINTENDO OF AMERICA, INC.:
` PERKINS COIE LLP
` By: Kyle R. Canavera, Esq.
` 1201 3rd Avenue
` Number 4900
` Seattle, Washington 98101
` (206) 359-8664
`
`FOR THE PETITIONERS, ROKU and VIZIO:
` STERNE KESSLER GOLDSTEIN AND FOX
` By: Jon Wright, Esq.
` By: Richard Crudo, Esq.
` By: Dohm Chankong, Esq.
` 100 New York Avenue
` NW Suite 600
` Washington, DC 20005
` (202) 371-2600
`
`FOR THE PATENT OWNER, ANCORA TECHNOLOGIES, INC.:
` FITCH, EVEN, TABIN & FLANNERY LLP
` By: David A. Gosse, Esq.
` 120 S La Salle Street
` Unit 2100
` Chicago, Illinois 60603
` (312) 577-7000
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`4
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` I N D E X
` PAGE
`DAVID MARTIN, PhD
` Examination by Mr. Crudo................... 6
` Examination by Mr. Gosse................... 92
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` E X H I B I T S
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`Conducted on July 14, 2022
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`5
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` P R O C E E D I N G S
` ***
` THE STENOGRAPHER: We are on the record.
`The time is 8:01 a.m.
` I would like to first introduce myself.
`My name is Cara Foster. I am your California
`Certified Shorthand Reporter for today. My
`license number is 11973.
` Before I swear in the witness, will
`Counsel place your appearances on the record and
`whom you represent?
` MR. CRUDO: Richard Crudo from Sterne,
`Kessler, Goldstein, and Fox, PLLC, on behalf of
`Petitioners Roku, Inc., and VIZIO, Inc.
` Also on the phone are my colleagues
`Jon Wright and Dohm Chankong also from Sterne and
`Kessler.
` MR. CANAVERA: Kyle Canavera from
`Perkins Coie on behalf of the Nintendo
`Petitioners.
` MR. GOSSE: This is David Gosse on behalf
`of Ancora Technologies, Inc., from the Fitch,
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`6
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`Even, Tabin, and Flannery Law Firm.
`
` DAVID MARTIN, PhD,
`was called for examination, and after having been
`duly sworn under penalty of perjury by the
`stenographic certified shorthand reporter, was
`examined and testified as follows:
`
` EXAMINATION
`BY MR. CRUDO:
` Q. Good morning, Dr. Martin.
` A. Good morning.
` Q. You understand you are being deposed
`today in two IPR proceedings involving one of
`Ancora's patents; right?
` A. That sounds correct to me. Yes, sir.
` Q. And that patent is U.S. Patent Number
`6,411,941; does that sound right?
` A. Yes, sir.
` Q. And I'll refer to that patent as the '941
`patent for simplicity today.
` One of the proceedings at issue involves
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`7
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`Petitioners Roku and VIZIO; does that sound right?
` A. Yes, sir.
` Q. And the other proceeding involves
`Petitioner Nintendo; is that correct?
` A. That's correct.
` Q. And you were involved with both of
`them?
` A. That's correct. My recollection, I was
`retained on behalf of both of those sets of
`companies. I'm sorry, I said that very badly.
` I was retained by Ancora in regard to the
`petitions that you described.
` Q. Understood.
` You understand that your testimony today
`will be used in both of those IPR proceedings,
`right?
` A. Yes, I do.
` Q. And where are you testifying from
`today?
` A. I am in Bismarck, North Dakota.
` Q. In your home office?
` A. Yes, sir. That's correct.
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`Conducted on July 14, 2022
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`8
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` Q. There's nobody else physically in the
`room with you, correct?
` A. That's correct.
` Q. And you're not communicating with anyone
`electronically, such as through chat, instant
`message, texting, or anything like that, right?
` A. No, I'm not.
` Q. You have on your screen the Zoom session
`by which we are conducting this deposition.
` You don't have any other screens open on
`your monitor at this time; is that right?
` A. That's not quite right. I have two other
`windows open.
` I can describe them if you'd like?
` Q. Please.
` A. I have one volume control application
`just to facilitate the remote deposition. And
`then I have another file browser window open that
`has folders in it. And these folders contain the
`files that I downloaded from the PTAB website
`corresponding to the two petitions.
` Q. So the browser that you've described has
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`Conducted on July 14, 2022
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`9
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`essentially the docket from the IPR proceedings?
` A. Plus the exhibits. Yes, sir.
` Q. Okay. And did you receive a box of
`papers and exhibits that we've sent to you?
` A. Yes, I did.
` Q. Do you have that box with you today?
` A. Yes, I do.
` Q. I'll go ahead and ask you to close the
`browser, and we will focus on the paper copies of
`the documents. If needed, I can certainly share
`my screen, and we can look at any electronic
`version of the document together; is that okay?
` A. Well, it may be okay, depending on how
`this goes. I actually find it much easier to work
`with the electronic documents, since that's the
`form in which I have worked in this entire matter.
` So I actually may prefer to use these
`publicly available documents when it comes to me,
`but, certainly, we can begin with the paper
`form.
` Q. Sure.
` And no other electronic documents or
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`Conducted on July 14, 2022
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`10
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`anything open on your computer, correct?
` A. That's correct.
` Q. And other than the box of hard copy
`documents that we sent to you, you don't have any
`other hard copy documents, notes, anything like
`that in front of you?
` A. I actually do have one document. It is
`Exhibit 1001 from the Nintendo petition. This is
`the '941 patent. This may not be the only copy in
`the room. We'll find out when I open the box.
` Q. Understood.
` And based on your CV, it seems that you
`have been deposed before; is that correct?
` A. I have. Yes, sir.
` Q. How many times have you been deposed?
` A. I don't have a firm number in mind. I
`would expect it to be in the dozens, depending on
`how you count.
` Q. And those were all patent infringement
`cases, or were there other types of cases
`involved?
` A. There were some other cases, as well.
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`Conducted on July 14, 2022
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`11
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`They weren't all patent infringement cases.
` Q. When was the last time you were
`deposed?
` A. I believe it was about two weeks ago.
` Q. And that deposition was a remote
`deposition, I assume?
` A. Yes, sir.
` Q. Okay. Was that deposition in a patent
`infringement case?
` A. It was in a patent IPR case.
` Q. Did that case involve Ancora?
` A. No, sir. It didn't.
` Q. So you're familiar with how these things
`work, but I'll just briefly go over the ground
`rules particularly because we're doing this
`remotely.
` You understand that you are under oath
`today, correct?
` A. Of course. Yes, sir.
` Q. You understand that it's the same oath
`you would take if you were appearing in a court of
`law to testify, right?
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`12
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` A. It seems likely it would be the same
`oath, yes.
` Q. I'll be asking you questions today. If I
`ask you a question that you don't understand,
`please let me know.
` Conversely, if I asked you a question and
`you provide an answer, I will assume that you
`understand the question.
` Is that fair?
` A. Yes, that seems appropriate.
` Q. And you understand that any
`communications you have during a break that we
`take are discoverable; meaning, that I can ask you
`about those communications after the break,
`right?
` A. Yes, I do.
` Q. Can we agree that while we are on the
`record, you'll have no off-the-record
`communications via texting or anything like
`that?
` A. Yes, we can. I do.
` Q. Okay. Can you please open the box that
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`Conducted on July 14, 2022
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`13
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`we sent to you with the papers and exhibits?
` A. Sure.
` Yes, papers and exhibits. That's what I
`see.
` Q. Okay. Great. From time to time, I will
`ask you to pull out certain documents. But I ask
`that during breaks, you don't -- that you look at
`only the documents that we've used and that have
`been marked as exhibits; is that fair?
` A. I can tell you, I have no plans to
`deviate from that. I understand your instruction
`and request.
` Q. Okay. Is there any reason that you don't
`believe you can provide full-and-complete
`testimony today?
` A. No, sir.
` Q. And is there any reason that you don't
`believe you can provide truthful testimony
`today?
` A. No, sir.
` Q. What did you do to prepare for today's
`deposition?
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`Conducted on July 14, 2022
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`14
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` A. I spent some time in conversation with
`counsel for Ancora, and I reviewed the materials
`on the docket, including some of the exhibits.
`And I think that fairly characterizes the extent
`of my preparations.
` Q. How many hours would you say, roughly
`ballpark, that you've spent preparing for today's
`deposition?
` A. I would guess five hours, give or take.
` Q. And you stated just now that you met with
`counsel to prepare for the deposition.
` When was the last time that you met with
`counsel?
` A. That was yesterday.
` Q. And who was involved in those meetings?
` A. Mr. Gosse was there and myself.
` Q. Anyone else present either in the room or
`on the phone or video?
` A. I was not aware of anyone else being
`present.
` Q. Did you meet with Mr. Gosse before
`yesterday?
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`Conducted on July 14, 2022
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`15
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` A. Yes, I did.
` Q. And when was that?
` A. My recollection is it was Friday of last
`week.
` Q. Any other person in the room or on the
`phone or in video at that meeting?
` A. Not that I was aware of.
` Q. Any other meetings?
` A. Nothing comes to mind. No, sir.
` Q. And did you review your declaration
`before today's deposition?
` A. Yes, sir. I did.
` Q. Did you review the deposition transcript
`of Petitioner expert Dr. Wolfe?
` A. I recall having -- I glanced at it very
`briefly.
` Q. Did you review the deposition transcript
`of Mr. Miki Mullor?
` A. No, sir.
` Q. If you would, Dr. Martin, will you please
`pull out the exhibits marked Exhibit 2018 in each
`IPR proceeding from the box?
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`Conducted on July 14, 2022
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`16
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` A. Yes, I can find those. I recognize that
`exhibit number as my declaration, so I'll look for
`those.
` Q. Sure.
` A. The box is a little bit difficult to
`manage.
` Q. There are quite a few documents in there.
`I think it's broken up into an exhibit tab, and
`then a Nintendo tab which will have corresponding
`exhibits for the case, if that helps.
` A. Well, maybe I misheard you. I found one
`folder labeled "Exhibit 2018".
` Is there supposed to be more than one?
` Q. So the version that you have is the
`version that was submitted in the Roku/VIZIO case;
`is that correct?
` A. It does appear to be labeled that way.
`Yes, sir.
` Q. Okay. There should be one more
`declaration in the box. I think it's under a
`Nintendo tab. And that is the corresponding
`declaration that you've submitted in the Nintendo
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`Conducted on July 14, 2022
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`17
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`proceeding.
` A. I see. Yes.
` Okay. Yes. I see Exhibit 2018 also from
`the Nintendo proceeding. I have both exhibits,
`2018, now.
` Q. Great.
` And you recognize these documents as the
`declarations that were used in those
`proceedings?
` A. On the basis of the cover page of these
`documents, that looks like what they are.
` Q. If you turn to the last page of each
`document, you will see a signature there.
` Is that your signature?
` A. My signature is actually on page 132 of
`the document, not on the last page, but I do see
`it on page 132. I just looked in the Nintendo
`declaration. And I see it similar in the Roku and
`VIZIO declaration.
` Q. And as far as you know, are these two
`declarations identical?
` A. I don't think that they are strictly
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`Conducted on July 14, 2022
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`18
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`identical. I can see on the cover page that they
`are different. There may be some different
`exhibit numbering. The stamps are different.
`There may be other differences.
` Q. Are you aware of any substantive
`differences in the body of the declarations?
` A. As I sit here today, I'm not aware of
`intending to have expressed any substantive
`differences in these two declarations other than,
`as I mentioned, the numbering and stamps and so
`forth.
` Q. Understood.
` Did you draft these declarations?
` A. Yes, but I don't want to mislead. I did
`not perform all of the drafting of all of the text
`in both declarations solely by myself.
` Q. How long would you say that you spent
`preparing each declaration?
` A. I can't give you a firm estimate. I can
`say that I expect that it would have been many
`dozens of hours all told in working on the
`material that appears in these declarations, but
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`Conducted on July 14, 2022
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`19
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`it's very difficult to be accurate.
` I did not track that effort from the
`first word ever written that appears here towards,
`you know, the last word that ever appears in the
`declarations.
` Q. Understood.
` And before you drafted your declaration
`or during the drafting process, did you review
`Ancora's patent owner response?
` MR. GOSSE: Object to the form.
` THE WITNESS: I do not recall during the
`preparation of either of these declarations having
`reviewed in any substantive way a patent owner
`response in one of the two proceedings that we're
`discussing.
`BY MR. CRUDO:
` Q. In preparing for today's deposition, did
`you review the board's institution decisions?
` A. I don't recall having done that. I
`haven't -- yeah, in preparation of the deposition,
`I don't recall having reviewed the institution
`decisions.
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`20
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` Q. After reviewing your declarations in
`preparation for this deposition, did you find any
`errors that you wished to correct?
` A. I did notice one issue with an exhibit.
`I believe it's Exhibit Number 2009. One moment.
` Yes, in both of the declarations, I
`referred to Exhibit 2009 for a definition that
`was, I believe, mistakenly omitted from that
`exhibit. My understanding is that this is -- this
`will be corrected or that's underway. That's one
`thing I recalled.
` I noticed a typo elsewhere in my
`declaration that I don't believe would confuse
`anyone.
` Q. Do you know which definition was omitted
`from Exhibit 2009?
` A. I can easily find it. And the most
`efficient way for me to do that is to consult the
`electronic forms of my declaration on my desktop
`so that's what --
` Q. It's okay. We'll get there in just a
`minute. Moving on.
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`Conducted on July 14, 2022
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`21
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` Did you identify any other errors in your
`declaration beyond Exhibit 2009 and the typo that
`you just referred to?
` A. Other than the typo I referred to and the
`errors involving the citations to the Microsoft
`dictionary for the term "BIOS", I can't think of
`any other comparable issues that I noticed in
`review of my declarations.
` Q. And as of today, do you have any plan to
`supplement your declaration?
` A. Can you repeat that, please?
` MR. GOSSE: Object to the form.
`BY MR. CRUDO:
` Q. Yes.
` As of today, do you have any plan to
`supplement your declarations?
` MR. GOSSE: Object to the form.
` THE WITNESS: As I sit here today, I do
`not have a plan to supplement either declaration.
`I'm not sure what circumstances would arise where
`that might be appropriate, but sitting here today,
`I'm not aware of any.
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`22
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`BY MR. CRUDO:
` Q. Sitting here today, do you have any plan
`to change any of your plans set forth in your
`declarations?
` A. As I sit here today, no, I do not have
`any plans to change opinions that I've expressed
`in the declarations.
` Q. How did you become involved in these
`proceedings?
` MR. GOSSE: Object to the form.
` THE WITNESS: Can you clarify by what you
`mean "involved in"?
`BY MR. CRUDO:
` Q. Did Ancora approach you about serving as
`a witness in these proceedings?
` A. My recollection is that I received
`contact from attorneys for Ancora. That was when
`I first became aware of these proceedings.
` Q. And when you say, "attorneys from
`Ancora", are you referring to Mr. Gosse and his
`firm?
` A. I do believe Mr. Gosse was involved in
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`23
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`what I'm recalling now.
` Q. Were other law firms involved?
` A. Yes. I do recall there was other counsel
`for Ancora present.
` Q. And when you say, "other counsel for
`Ancora", are you referring to Ancora's district
`court litigation counsel?
` A. I'm not sure if that's a precise enough
`way to characterize the counsel. It may be yes.
`It may be no. Maybe you could clarify the
`question for me.
` Q. Who was the other counsel that contacted
`you regarding this case?
` A. I also recall having communicated with
`Andres Healy at Susman Godfrey in this matter as
`well.
` Q. And when were these communications?
` A. I'm recalling that the communications I'm
`referring to regarding these two IPR proceedings
`would have been sometime early in this calendar
`year... January, February, or something like
`that.
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`24
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` Q. Did you have a pre-existing relationship
`with either Mr. Gosse or the Susman Godfrey
`attorneys?
` MR. GOSSE: Object to the form.
` THE WITNESS: I'm not sure what you mean
`by "relationship". Can you clarify, please?
`BY MR. CRUDO:
` Q. Had you worked with either Mr. Gosse or
`the Susman Godfrey attorney on any other case
`prior to this one?
` A. Yes, sir. I had.
` Q. How many cases?
` MR. GOSSE: I will object to the form of
`that question.
` THE WITNESS: I do not recall having
`worked with Mr. Gosse before this engagement. I
`do recall having worked with Mr. Healy on what I
`consider to be two different engagements
`previously. I'm not exactly sure about that. I
`can think of at least those two engagements.
`BY MR. CRUDO:
` Q. And did either of those engagements
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`25
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`involve Ancora?
` A. Yes, sir. They did.
` Q. Did both of them involve Ancora?
` A. The ones I'm recalling did involve
`Ancora, yes.
` Q. Did both of those cases involve the '941
`patent at issue here?
` A. That is my recollection, yes. Both of
`those cases, I was previously engaged on,
`concerned the '941 patent.
` Q. One of those cases involved LG
`Electronics and Samsung as defendants, right?
` A. That is correct. That is one of the
`cases I had in mind in my previous answer.
` Q. And what is the other case?
` A. The other case that I was referring to is
`a case involving HTC.
` Q. And neither of these cases are listed in
`your CV; is that correct?
` A. I don't recall. I would have to consult
`my CV to answer that question.
` Q. Is there a reason they would have been
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`26
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`omitted from the CV?
` MR. GOSSE: Object to the form.
` THE WITNESS: I just remembered my CV is
`actually attached to Exhibit 2018, so I'm looking
`at it now.
` And the area in my CV, for example on --
`I'm looking at the Nintendo Exhibit 2018, on page
`135. And this is where I list what I describe as
`"Representative Testifying Expert Engagements".
` So my intent in my CV has never been to
`list every one of my business relationships or
`testifying engagements or consulting engagements,
`but rather to identify those that I considered to
`be representative.
`BY MR. CRUDO:
` Q. But in so doing, you omitted the two
`cases that involve the same patent owner and the
`same patent at issue here, right?
` MR. GOSSE: Object to the form.
` THE WITNESS: Well, I wouldn't phrase it
`like that. It is true that neither of those cases
`are listed, as what I describe, as representative
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`27
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`engagements in my CV.
` However, those engagements were -- I
`don't -- I don't recall that as having been
`omitting them. Rather, it was just that is not
`one of the examples that I put in my CV.
`BY MR. CRUDO:
` Q. Have you been retained by Ancora in any
`other case other than the LG and the HTC cases?
` A. I am recalling some other engagements.
`Yes, sir.
` Q. What are those engagements?
` A. I am remembering some IPR engagements.
`For example, there was one with Sony and the '941
`patent. I believe there was also one with TCL or
`TCT and the '941 patents. My recollection is that
`there may have been an engagement related to TCL
`or TCT, and a district court case involving the
`'941 as well. That's all I can remember at this
`moment.
` Q. Were you deposed in any of those cases?
` A. Yes, sir. I was.
` Q. How many times were you deposed across
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`28
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`all those cases?
` A. I'm not going to be able to recall, for
`example, how many deposition notices there were
`that -- that I responded to and testified because
`of.
` However, I do remember that in the LG and
`Samsung matters, I'm recalling that I testified
`both with respect to infringement and validity on
`both of those -- on both of those cases. So for
`both LG and Samsung, at least two depositions
`each.
` Q. Are you aware of any testimony that you
`provided in any of those cases that is
`inconsistent with the position you or Ancora are
`taking in these IPRs?
` A. No, sir. I'm not.
` Q. Did you submit expert declarations or
`reports in any of those other cases?
` A. Yes, sir. I did.
` Q. Do you know approximately how many
`declarations or reports you've submitted?
` A. I do recall one declaration in the Sony
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`29
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`IPR, and I'm recalling at least one -- let me
`rephrase. In the LG and Samsung cases, I'm
`recalling for each of them both opening reports
`and rebuttal reports. There may have been some
`supplemental reports as well. I don't recall
`clearly sitting here right now.
` Q. By opening reports, are you referring to
`infringement reports?
` A. That is correct. They were opening
`reports for the infringement case, yes.
` Q. By rebuttal reports, are you referring to
`rebuttal reports that address patent validity?
` A. Yes, that was the primary substance of
`the reports I had in mind.
` Q. To the best of your recollection, were
`those reports submitted before or after you
`admitted your declaration in these IPRs?
` A. I'm quite sure that all of the reports
`that I mentioned that were in the district court
`litigation involving LG and Samsung, were filed
`before my involvement with the IPRs that we're
`discussing today.
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`Conducted on July 14, 2022
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`30
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` Q. That is the --
` A. Let me.
` The IPRs that we're discussing today,
`specifically the Nintendo and Roku/VIZIO IPRs.
` Q. And did you submit expert reports in the
`HTC case as well?
` A. No, sir. I have not submitted expert
`reports in the HTC case.
` Q. Do you intend to submit reports in that
`case?
` MR. GOSSE: Object to the form.
` THE WITNESS: As I sit here, I have no
`clear intention about it. My understanding is
`that the case is ongoing, and so it may happen
`that I, ultimately, do submit reports. But, as I
`sit here today, I have no clear intention one way
`or another about it.
`BY MR. CRUDO:
` Q. And same question for the TCL district
`court litigation, did you submit reports in that
`case?
` MR. GOSSE: Object to the form.
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`31
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` THE WITNESS: I do not recall having
`submitted any reports in any district court case
`involving TCL or TCT.
`BY MR. CRUDO:
` Q. Did the LG Samsung case involve the
`Hellman prior art reference at issue here?
` A. My recollection is that the Hellman prior
`art reference was involved in one of those cases,
`either the LG case or the Samsung case. As I sit
`here, I can't remember clearly which one it was.
` Q. Did those cases also involve the Chou
`prior art reference in issue here?
` A. Yes. The Chou reference at issue in
`today's IPRs was also raised in one or more of the
`two district court cases that we've discussed,
`that is LG and Samsung.
` Q. Did those cases also involve the Schneck
`prior art reference in issue here?
` A. As I sit here today, I don't recall them
`having been -- I don't recall Schneck having been
`involved in those cases, but I'm not entirely
`confident about that. It's possible that they
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`32
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`were present in some manner in those cases.
` Q. And just so the record is clear, when
`we're talking about those cases, we're referring
`to LG, Samsung, HTC, and TCL district court
`cases?
` A. Well, I was referring specifically to the
`LG and Samsung cases, given my previous testimony
`that I never filed any reports in any of the other
`cases that you've mentioned in your question.
` Q. Understood.
` Do you know if the same prior art at
`issue here is also at issue in HTC and the TCL
`district court cases?
` A. As I sit here today, no, I do not know.
` Q. Are you aware of anything in the expert
`reports that you submitted in any of those cases
`that is inconsistent with any position that you've
`taken or that Ancora has taken in these IPRs?
` MR. GOSSE: Object to the form.
` THE WITNESS: As I sit here today, no,
`I'm not aware of any way in which my analysis of
`the rebuttal reports in the cases we've been
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`33
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`discussing is inconsistent with any of my analysis
`in the Nintendo, Roku, and VIZIO IPRs that we're
`discussing today.
`BY MR. CRUDO:
` Q. You referred specifically to your
`rebuttal reports in those cases.
` Is your answer the same with regard to
`your infringement reports in those cases?
` MR. GOSSE: Object to the form.
` THE WITNESS: Yes, I would agree, I'm not
`aware of having taken any -- undertaken any
`analysis in my previously submitted infringement
`reports that is inconsistent with any of the
`analysis that I have undertaken with respect to
`the IPRs concerned in today's deposition.
`BY MR. CRUDO:
` Q. Did the district court in the LG case
`construe the term "agent" in the '941 patent?
` MR. GOSSE: Object to the form.
`BY MR. CRUDO:
` Q. Actually, we can turn to page 28 of your
`declaration.
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`Transcript of David Martin, Ph.D.
`Conducted on July 14, 2022
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`34
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` A. Thank you.
` Q. You've provided a chart that categorizes
`the claim construction?
` A. Yes, I do recall having provided this
`chart.
` I'm not sure whether to consider this a
`stand-alone construction of the term "agent". But
`what I recall, and I find on page 28 and 29 of my
`declaration, is that in the LG case, the district
`court construed a larger term, the term being,
`"using an agent to set up a verification structure
`in the erasable, non-volatile memory of the BIOS,
`as plain and ordinary meaning, wherein the plain
`and ordinary meaning of agent is a software
`program or routine."
` So in that sense
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