Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 1 of 45
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 2 of 45
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`IN THE UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Page 1
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`ANCORA TECHNOLOGIES, INC.,
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`Plaintiff,
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`No. 4:11-CV-11-6357 YGR
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`Defendant.
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`AND RELATED CROSS-ACTIONS.
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`VIDEOTAPED DEPOSITION OF IAN JESTICE
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`PALO ALTO, CALIFORNIA
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`THURSDAY, HAY 3, 2012
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`Reported by: LOUISE HARIE SOUSOURES, CSR NO. 3575
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`Certified LiveNote Reporter
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`JOB NO. 49180
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000550
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`
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 3 of 45
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`Page 2
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`THURSDAY, HAY 3, 2012
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`9 : 13 A.Ho
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`Deposition of IAN JESTICE, held at the offices of
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`Horrison & Foerster, LLP, 755 Page Hill Road, Palo
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`Alto, California, before Louise Harie Sousoures, a
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`Certified Shorthand Reporter and a Certified
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`LiveNote Reporter.
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000551
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 4 of 45
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`APPEARANCES
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`Page 3
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`FOR THE PLAINTIFF:
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`BROOKS KUSHMAN
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`1000 TOWN CENTER
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`SOUTHFIELD, HI 48075
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`BY:
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`JOHN RONDINI, ESQ.
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`HARC LORELLI (VIA TELEPHONE)
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`JOHN LE ROY (VIA TELEPHONE)
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`FOR THE DEFENDANT:
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`HORRISON & FOERSTER
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`555 WEST FIFTH STREET
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`LOS ANGELES, CA 9@@13
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`BY: BITA RAHEBI, ESQ.
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`ANCORA 00000552
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 5 of 45
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`Page 4
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`A P P E A R A N C E S
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`(CONTINUED)
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`FOR THE DEFENDANT:
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`HORRISON & FOERSTER
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`425 MARKET STREET
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`SAN FRANCISCO, CA
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`94105
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`BY: ERIC OW, ESQ.
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`THE VIDEOGRAPHER: NICK KASIHATIS
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`ANCORA 00000553
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 6 of 45
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`Page 5
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`IT IS HEREBY STIPULATED AND AGREED
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`by and between the attorneys for the
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`respective parties herein, that filing and
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`sealing be and the same are hereby waived.
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`IT IS FURTHER STIPULATED AND AGREED
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`that all objections, except as to the form
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`of the question, shall be reserved to the
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`time of the trial.
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`IT IS FURTHER STIPULATED AND AGREED
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`that the within deposition may be sworn to
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`and signed before any officer authorized
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`to administer an oath, with the same
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`force and effect as if signed and sworn
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`to before the Court.
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`- o0o -
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000554
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 7 of 45
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`PROCEEDINGS
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`-o0o-
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`Page 6
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`THE VIDEOGRAPHER: Good morning. This is the
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`start of tape labeled number 1 of the videotaped
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`deposition of Ian Jestice in the matter Ancora
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`Technologies versus Apple, Inc. in the United States
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`District Court, Northern District of California, case
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`number C-11-6357-YGR.
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`This deposition is being held at Horrison &
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`Foerster, 755 Page Hill Road in Palo Alto, California
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`on Hay 3rd, 2012 at approximately 9:13 a.m.
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`Hy name is Nick Kasimatis, I’m the legal
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`video specialist for TSG Reporting.
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`The court reporter is Louise Sousoures in
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`association with TSG Reporting.
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`Will counsel please introduce yourself.
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`HS. RAHEBI:
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`Bita Rahebi of Horrison &
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`Foerster for Apple.
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`Along with me here today is my
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`colleague, Eric Ow, also of Horrison & Foerster.
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`HR. RONDINI: John Rondini from Brooks
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`Kushman on behalf of Ancora Technologies.
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`THE VIDEOGRAPHER: Thank you. Will the court
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`reporter please swear in the witness.
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`HR. LORELLI: Hard for us to hear. Can the
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`ANCORA 00000555
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 8 of 45
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`Page 7
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`phone be pushed a little closer?
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`HR. LE ROY:
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`I guess we haven’t heard the
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`witness yet.
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`HS. RAHEBI:
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`Can you introduce yourself for
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`the record, please?
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`HR. LORELLI:
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`Harc Lorelli and John Le Roy
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`from Brooks Kushman via telephone link.
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`--oOo--
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`IAN JESTICE,
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`having been first duly sworn by the
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`Certified Shorthand Reporter to tell
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`the truth, the whole truth, and nothing
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`but the truth, testified as follows:
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`EKAHINATION BY HS. RAHEBI:
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`Q. Is there any reason you can’t provide full
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`and accurate testimony today, Hr. Jestice?
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`A. No, there’s not.
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`Q.
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`Is a hard disk volatile memory or nonvolatile
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`memory?
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`A. It really depends on the application.
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`Q. When you say it "depends on the application,"
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`what do you mean?
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`A. Well, under some circumstances, it can be
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`considered volatile and in some circumstances it can
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`be considered nonvolatile.
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`ANCORA 00000556
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 9 of 45
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`Q. Your understanding is that nonvolatile memory
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`is memory that is maintained even when the power is
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`removed from the storage system?
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`HR. RONDINI:
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`Objection to form.
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`THE WITNESS:
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`Can you say that again?
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`BY HS. RAHEBI:
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`Q. Sure.
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`Your understanding of nonvolatile
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`memory is that memory that is maintained even when the
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`power is removed from the storage system?
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`A. I think it requires a power cycle, so if you
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`go from power on to power off to power on, the
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`information would have to be available after the power
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`cycle to be nonvolatile.
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`Q. Is it your understanding that volatile memory
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`is memory that is not maintained when the power is
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`removed?
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`A. It’s the same answer, I guess, rephrased is
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`that if it’s nonvolatile, if you go from a power on to
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`a power off to a power on, the information is not
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`available if it’s volatile storage.
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`Q. And what I’m seeing in your answer is that
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`you’ve got an additional stage which is going from
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`power off to power on; is that right?
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`A. Power on to power off to power on and when
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`you come back, if it’s volatile, the information is
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000557
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 10 of 45
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`not available.
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`Q. If I told you my understanding is that
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`volatile memory is memory that is not maintained when
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`the power is removed, would you agree with that?
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`HR. RONDINI:
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`Objection, vague.
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`THE WITNESS:
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`Not maintained when the power
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`is removed.
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`Well, I think to really establish it you’ve
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`got to go through the power on, power off, power on
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`cycle to establish whether the data is available.
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`BY HS. RAHEBI:
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`Q. Let’s talk about volatile memory.
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`Is volatile memory memory that is maintained
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`when the power is removed?
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`Ao
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`I think I’ve just answered that.
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`Sorry, yes, let me ask you about nonvolatile
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`memory.
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`Is that memory that is maintained when the
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`power is removed?
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`A. I think my previous answer was if you take
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`something from a system from a power on state to a
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`power off state and you go back to a power on state,
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`and the data is still available, that’s a nonvolatile
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`storage.
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`Q. So if I’m I want to make sure I’m clear
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000558
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 11 of 45
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`Page 10
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`and precise on this.
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`If I tell you my understanding of nonvolatile
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`memory is memory that is maintained when the power is
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`removed, would you agree with that statement?
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`HR. RONDINI:
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`Objection to form.
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`THE WITNESS:
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`I would disagree based on what
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`I just previously said.
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`BY HS. RAHEBI:
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`Q.
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`A.
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`So you would not accept my construction?
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`No, I think there’s an additional step which
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`is to really fully explain it you’ve got to go from a
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`power on to a power off to a power on and the data’s
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`got to be available.
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`go
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`That’s how you would construe nonvolatile
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`memory?
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`HR. RONDINI:
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`Objection to form.
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`THE WITNESS:
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`Yes.
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`BY HS. RAHEBI:
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`Q.
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`A.
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`When were you retained in this matter?
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`Sometime last year, I believe the summer, I’m
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`not a hundred percent certain.
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`g o Did you say summer or December?
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`Summer.
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`We’re coming up almost on a year?
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`Getting on that way, yes.
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`ANCORA 00000559
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 12 of 45
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`HS. RAHEBI: Let me mark have the court
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`reporter mark as Jestice Exhibit No. 1, the ’941
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`Page 11
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`patent.
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`(Exhibit No. 1 was marked.
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`BY HS. RAHEBI:
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`Q. You’ve seen this patent, sir?
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`A. Yes, I have.
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`Q. When was the first time you reviewed it?
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`A.
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`It would be last summer.
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`Q. Have you reviewed the file history
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`associated have you read the file history that led
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`to the ’941 patent?
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`A. Yes, I have.
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`Q. Have you read the complete file history?
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`A.
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`I haven’t read every word of the file
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`history, but certainly gone through the file history.
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`Q. Have you gone cover to cover through that
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`file history?
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`A. I’ve looked at the whole file history.
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`haven’t read every word of the file history because a
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`lot of it is legal terminology.
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`So I haven’t read every word of the file
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`history.
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`Q.
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`A.
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`Please turn to claim i.
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`Okay.
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`ANCORA 00000560
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 13 of 45
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`Page 12
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`Q o
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`Have you read this claim before?
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`Yes, I have.
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`In the context of claim 1, would a hard disk
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`fall under volatile memory or nonvolatile memory?
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`HR. RONDINI: Objection to form.
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`THE WITNESS: Well, there is no hard disk in
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`claim 1.
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`BY HS. RAHEBI:
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`Q. A competitor wants to follow the method
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`described in claim 1 and the computer includes a hard
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`disk. So the competitor is looking at this claim,
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`sir. In the context of claim 1, would a hard disk
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`fall under volatile memory or nonvolatile memory?
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`A. So where are you suggesting in claim 1 there
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`would be hard disk?
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`Q. I’m looking at the references to nonvolatile
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`memory and volatile memory area, those references are
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`in there, right, sir? I’m asking you if someone, a
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`competitor, has a computer with a hard disk and
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`they’re trying to figure out is their hard disk
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`volatile memory or nonvolatile memory, what’s the
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`answer?
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`HR. RONDINI:
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`Objection to form.
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`THE WITNESS:
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`If I insert the word hard disk
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`into nonvolatile, it makes no sense.
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`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000561
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 14 of 45
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`Page 13
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`Actually, it doesn’t make any sense on
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`volatile memory from what I can see. Hang on, let me
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`continue all the way through.
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`I guess you could conceivably use a hard disk
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`in this context as nonvolatile and, I guess, volatile,
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`depending on the actual application.
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`BY HS. RAHEBI:
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`Let me show you your declaration, sir.
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`A.
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`Okay.
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`HR. RONDINI:
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`Going to mark this as
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`Exhibit 2?
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`HS. RAHEBI:
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`I’m not marking that.
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`BY HS. RAHEBI:
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`Q. Can you please turn to paragraph 7.
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`You refer in paragraph 7 to virtual memory.
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`Do you see that?
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`A. Yes.
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`Q. Turning back to Exhibit 1, the ’941 patent,
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`can you point to any reference in the ’941 patent to
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`virtual memory?
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`A. There’s no reference in 1 specific to virtual
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`memory, but then there isn’t lots of reference to
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`other parts of the system.
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`Q. So the answer, sir, is there’s no reference
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`to virtual memory, correct?
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`ANCORA 00000562
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 15 of 45
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`HR. RONDINI: Objection to form.
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`THE WITNESS: There’s no specific mention of
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`Page 14
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`virtual memory in that claim 1.
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`BY HS. RAHEBI:
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`Q.
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`I’m asking anywhere in the ’941 patent.
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`A. No.
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`Q. You also refer in paragraph 7 to supplemental
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`storage; is that correct?
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`A. Yes.
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`Q. Can you point me to any reference to
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`supplemental storage anywhere in the ’941 patent?
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`A. No.
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`Q. Is there any discussion in the ’941 patent
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`regarding the price of RAH storage in comparison to
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`the price of hard drive storage?
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`A.
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`I don’t believe so.
`
`Q. Let me ask you to help me out with a
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`scenario.
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`It’s 1998 and you buy an installation CD of
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`Lotus 1-2-3. You insert the CD into a CD drive of a
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`computer that contains a hard disk.
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`Ao Yes.
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`You install Lotus 1-2-3 on that computer.
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`Yes.
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`Where is Lotus 1-2-3 stored?
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`ANCORA 00000563
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 16 of 45
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`Page 15
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`HR. RONDINI:
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`Objection, vague, ambiguous.
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`THE WITNESS:
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`After the installation?
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`BY HS. RAHEBI:
`
`Q.
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`A.
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`Yes.
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`Host likely it’s on some form of nonvolatile
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`disk storage.
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`Q. Would it be on a hard disk?
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`A. Host likely.
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`Q. Okay.
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`Let’s presume it’s on a hard disk.
`
`A. Okay.
`
`Q. You turn off the computer.
`
`With respect to
`
`the executable Lotus 1-2-3 that was installed on the
`
`hard disk, is that preserved for use after the power
`
`is removed?
`
`HR. RONDINI:
`
`Objection, vague.
`
`THE WITNESS:
`
`Well, if you power the machine
`
`off and power it back on again, it is available from
`
`the hard disk, yes.
`
`BY MS. RAHEBI:
`
`Q. When you remove the power, does it matter if
`
`you unplug the computer or you power it off?
`
`A. No, it doesn’t matter, no.
`
`Q. Let’s talk about a slightly different
`
`scenario.
`
`You have this computer with a hard disk and
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 17 of 45
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`Page 1 6
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`you’re running Windows 98 on it.
`
`A. Yes.
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`Q. And let me ask you, before we get into this
`
`scenario, are the alleged teachings of the ’941
`
`patent, could you apply those to a system running
`
`Windows 98?
`
`HR. RONDINI: Objection, vague and ambiguous.
`
`THE WITNESS: Yes.
`
`BY HS. RAHEBI:
`
`Q. Assume that you’ve installed on the hard disk
`
`of that computer a CD of the Lotus 1-2-3 application.
`
`A. You’ve actually done installation and taken
`
`the installation files and moved them to the Windows
`
`machine?
`
`Q. No, it’s just a computer on Windows 98 and
`
`now you’re putting you’ve inserted a CD and you’re
`
`installing Lotus 1-2-3 like the scenario we did
`
`before.
`
`Okay.
`
`A.
`Q.
`would be on the hard disk, right?
`
`And most likely that Lotus 1-2-3 application
`
`A. After the installation, yes.
`
`Q. What is a swap file?
`
`A. A swap file is I’m not certain if I can
`
`get a precise definition of this, but this is
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`ANCORA 00000565
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 18 of 45
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`Page 17
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`typically when you don’t have enough memory space and
`
`you need to move part of your memory or part of your
`
`data somewhere so that you can actually do some work
`
`on the remaining memory.
`
`It’s a temporary storage location.
`
`Q.
`
`Is virtual memory the same as a swap file?
`
`A. No.
`
`Q.
`
`How is it different?
`
`A. This could be a long answer.
`
`Q.
`
`Go for it.
`
`A.
`
`So the way computers are arranged, there is a
`
`memory and every location in memory has an address and
`
`they’re sequential.
`
`And the computer, when it’s executing, takes
`
`instructions at specific locations in memory by its
`
`address, reads them out and then executes them.
`
`And then the program counter, which is the
`
`thing that says now run the next instruction or get
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`the next data, gets changed to reflect the next
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`address.
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`So over periods of time, the number of bits
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`in the address memory has changed, gone from using 16
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`bits
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`probably from 8 bits to 16 bits to 32 bits to
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`64 bits.
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`If you look at the address structure, only a
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`ANCORA 00000566
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 19 of 45
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`very small number of bits is actually used to address
`
`the physical memory.
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`Host of the address is used to look up a
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`virtual address. There’s many processes that don’t
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`function at all without a virtual addressing scheme.
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`So those bits that are used for the virtual
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`address are taken and compared with a piece of
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`hardware like a table look-aside buffer which has been
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`preconfigured and the table look-aside buffer tells
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`the table look-aside buffer takes the address that the
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`program picked and pulls out the physical address in
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`the virtual address space and uses that to actually
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`physically address a location in memory that may have
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`no reference to the actual address.
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`And in any event that it’s called a
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`page in the event that particular page is not
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`available in memory, it’s been moved somewhere else,
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`which is typically to a hard disk.
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`And in which case that page would have to be
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`brought in and a page that was in the memory moved out
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`so there’s a constant moving back of pages and pages
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`are typically 4K, 8K, 16K in size; they could be
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`bigger.
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`So this comes to moving of an imaginary
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`address space within the total system into a physical
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`ANCORA 00000567
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 20 of 45
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`Page 1 9
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`address space and mapping it through the table
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`look-aside buffer.
`
`Q. Let’s go back to the scenario we were just
`
`discussing about this computer that has a hard disk
`
`and you’re running Windows 98, you’ve installed Lotus
`
`1-2-3 on it and assume that there will be some
`
`information you believe stored in virtual memory; is
`
`that right?
`
`HR. RONDINI:
`
`Objection, vague.
`
`THE WITNESS:
`
`During the operation of a
`
`program, the program may or may not be in physical
`
`memory.
`
`space.
`
`It may be in this virtual memory, the page
`
`BY HS. RAHEBI:
`
`Q. Assume from my scenario that some information
`
`is stored in the virtual memory. Okay?
`
`A.
`
`Just can you run through that scenario again?
`
`Q. We’ve got a computer, it’s running Windows
`
`98, you’ve installed on a hard disk from a CD, the
`
`Lotus 1-2-3 application on that computer?
`
`A. Okay.
`
`Q. And I want you to assume that some of the
`
`information is contained in what you were calling the
`
`virtual memory.
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`ANCORA 00000568
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 21 of 45
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`Page 2@
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`A. So let’s step back a bit. Windows 98 is
`
`running, already running to virtual memory.
`
`Have we actually started Lotus?
`
`Q. Yes.
`
`A. We’ve called in Lotus from the hard disk?
`
`Q. Let’s do that.
`
`A. Brought it into the address space and at
`
`some point in time, one page may be sitting in
`
`physical memory, the rest may be we don’t know.
`
`Q. We don’t know, but there may be some of it in
`
`virtual memory.
`
`Is that a plausible scenario?
`
`A. Yes, certainly.
`
`Q.
`
`If you unplug the computer, is the
`
`information that’s stored on the virtual memory
`
`preserved?
`
`HR. RONDINI: Objection to form.
`
`THE WITNESS: No.
`
`BY HS. RAHEBI:
`
`Q. So take that hard disk we were just
`
`discussing on that computer and open up the computer
`
`and remove the hard disk.
`
`Ao
`
`Yes.
`
`I’m holding it in my hand.
`
`Is that hard
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`disk
`
`does that have I’m sorry.
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`ANCORA 00000569
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 22 of 45
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`Is the virtual memory, is that information
`
`still preserved
`
`strike that. That was really
`
`poorly worded.
`
`I’m holding this hard disk, okay?
`
`A. Uh-huh.
`
`Q.
`
`Is the information that was stored in the
`
`virtual memory when the computer was on, is that
`
`preserved now?
`
`HR. RONDINI: Objection, vague and ambiguous.
`
`THE WITNESS: What kind of information?
`
`BY HS. RAHEBI:
`
`Q. The information you were running when the
`
`computer was on. We agreed there was some information
`
`stored in virtual memory.
`
`A. Right.
`
`Q. And we’ve unplugged the computer and I
`
`believe you indicated that the information stored on
`
`the virtual memory was no longer preserved once you
`
`cut off the power?
`
`A. When you we talked earlier in order to be
`
`nonvolatile, volatile, if you go through the power off
`
`you’ve got to go through a power on cycle and is the
`
`data available after the power on cycle, the answer is
`
`HR. RONDINI: Ian, real quickly, before you
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`ANCORA 00000570
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 23 of 45
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`answer, let me get a second and I just wanted to
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`object, it misstates the previous testimony.
`
`BY HS. RAHEBI:
`
`Q. If you unplug the computer let’s step back
`
`a few so I want to make sure I didn’t misunderstand
`
`what counsel was saying. Haybe I misunderstood.
`
`If you unplug the computer we were just
`
`discussing, is the information stored on the virtual
`
`memory preserved?
`
`A. You can’t read the information that’s in the
`
`virtual memory either when it’s off or when it’s on at
`
`that point.
`
`Q. Because it’s no longer preserved?
`
`A.
`
`The information that with the rest of it,
`
`the table look-aside buffer I was just describing is
`
`gone.
`
`So the information is not available to anyone
`
`after that power off, power on cycle.
`
`Q. Okay. So even if you take the hard disk out
`
`of that computer, it’s not somewhere in that hard
`
`disk?
`
`A. I can’t take that hard disk, move it to
`
`another computer and start executing off the virtual
`
`storage on that disk because the table look-aside
`
`buffer is gone.
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`ANCORA 00000571
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 24 of 45
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`Qo
`
`You’re one ahead where I was going to go with
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`Page 23
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`this.
`
`You take that hard disk and put it in the
`
`second computer, but you’re not using that hard disk
`
`from the first computer to boot up the second
`
`computer, you’re just using it as an external drive?
`
`A. Yes.
`
`Q. Can you view the file system of this external
`
`hard disk at this point?
`
`A. Host likely, yes.
`
`Q. Can I see the information that was stored in
`
`virtual memory on the first computer on the second
`
`computer?
`
`A.
`
`Q.
`
`So what do you mean by "see"?
`
`Is the information preserved?
`
`A. Well, the information is in a form that is
`
`not usable after that operation.
`
`Q. We agree it’s in there still, you’re just
`
`saying it’s not usable?
`
`A. It’s not usable.
`
`Q. You do agree with me, sir, that information
`
`stored in the virtual memory is still present and it
`
`has not been deleted?
`
`HR. RONDINI:
`
`Objection to form.
`
`THE WITNESS:
`
`Yeah, the bits that were stored
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`ANCORA 00000572
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 25 of 45
`
`are still on the hard disk, but it’s not in usable
`
`form.
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`It’s like erasing a file. When you erase a
`
`file from a hard disk, the information is still there,
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`Page 24
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`but the pointer’s changed.
`
`BY HS. RAHEBI:
`
`Q.
`
`The pointer has changed?
`
`A. This point in your scenario, we’ve lost all
`
`the pointers, of which there are many, to the
`
`information so the information has no value much as
`
`any erased file would be on a hard disk.
`
`Q. The information, though, is preserved but the
`
`value is not present anymore because you can’t access
`
`it.
`
`Is that your testimony?
`
`HR. RONDINI: Objection, vague.
`
`THE WITNESS: Well, it’s not a question of
`
`access.
`
`It’s not usable.
`
`BY HS. RAHEBI:
`
`Q. The information is preserved, though,
`
`correct?
`
`A. The bits that were stored as part of the
`
`virtual storage system are out there, but they’re not
`
`readable either by the computer that you powered off
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`ANCORA 00000573
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 26 of 45
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`from or the computer you’ve just moved that hard disk
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`Page 25
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`to. You can’t do anything with it.
`
`Q. You’re sure of that, sir?
`
`A. Yes, I am.
`
`Q. And you base that on your 38 years of
`
`experience?
`
`A. Yes, debugging virtual systems.
`
`Q. What is your hourly rate for this case?
`
`A.
`
`I believe it’s 300.
`
`Q. And is that based on the outcome of this
`
`litigation?
`
`A. No.
`
`HS. RAHEBI: One second.
`
`Thank you. No further questions.
`
`THE VIDEOGRAPHER:
`
`This concludes today’s
`
`deposition
`
`MR. RONDINI:
`
`Can we take a five-minute break
`
`real quick?
`
`MS. RAHEBI: Yes.
`
`THE VIDEOGRAPHER:
`
`We are off the record at
`
`9:29 a.m.
`
`(Recess taken.)
`
`THE VIDEOGRAPHER:
`
`We are on the record at
`
`10:30 a.m.
`
`MS. RAHEBI:
`
`Just before we get started, let
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`ANCORA 00000574
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 27 of 45
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`the record reflect we’ve taken a one-hour break at the
`
`request of counsel which was supposed to be a
`
`Page 26
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`five-minute break.
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`Go ahead.
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`EKAHINATION BY HR. RONDINI:
`
`Q. Dr. Kelly Ian, I’m going to hand you
`
`actually, if I could have this marked by the court
`
`reporter as Exhibit 2.
`
`HR. RONDINI:
`
`I don’t have extra copies.
`
`HS. RAHEBI:
`
`What is it?
`
`HR. RONDINI:
`
`It was our proposed
`
`construction that was filed.
`
`(Exhibit No. 2 was marked.)
`
`BY HR. RONDINI:
`
`Q. Hr. Jestice, have you seen this before?
`
`A. Yes, I have.
`
`Q.
`
`If you could, sir, could you please flip to
`
`the definition for volatile and nonvolatile memory?
`
`Ao
`
`Okay.
`
`Have you read Ancora’s definitions of these
`
`terms?
`
`A.
`
`Q.
`
`Yes.
`
`The definitions that are proposed by Ancora,
`
`are these the common and ordinary definitions for
`
`these terms?
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`ANCORA 00000575
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 28 of 45
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`A. Yes.
`
`Q. Would they be the correct definitions as
`
`Page 27
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`applied in this case?
`
`A. Yes.
`
`Q. I believe you testified earlier that one of
`
`these constructions was incorrect due to a power on,
`
`power off, power on sequence.
`
`Do you recall that testimony?
`
`A. Yes, I do.
`
`Q.
`
`Do you believe that your testimony was
`
`accurate and these proposed constructions are
`
`incorrect?
`
`A. They’re actually incomplete.
`
`Q. What do you mean by they’re incomplete?
`
`A. Well, the proposed construction the
`
`information has no value if it’s not available on a
`
`power on after a power off.
`
`You have to go through the complete cycle of
`
`having the data powering off, powering back on again
`
`and seeing that the data is available to whatever it
`
`is that’s going to look at that to determine whether
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`it’s volatile or nonvolatile.
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`So it does require that power off power
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`off and power on cycle in order to say that it’s
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`volatile or nonvolatile.
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`ANCORA 00000576
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 29 of 45
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`Q. Okay. I also believe earlier you testified
`
`that the ’941 patent doesn’t expressly disclose
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`Page 28
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`virtual memory.
`
`Do you recall that testimony?
`
`A. Yes, I do.
`
`Q.
`
`Do you believe while the patent doesn’t
`
`expressly use the term "virtual memory" that the
`
`patent discloses the concept of virtual memory?
`
`A. Yeah, I think one who is skilled in the art
`
`would realize there was a possibility of using virtual
`
`memory.
`
`Q. Okay. I’d like to direct your attention back
`
`to Exhibit 1, the ’941 patent.
`
`A. Okay.
`
`Q.
`
`If you could, could you look at column 4,
`
`lines
`
`roughly around line 49, I believe is the
`
`start of the paragraph, starts "According to one,
`
`nonlimiting, preferred embodiment."
`
`Do you see that?
`
`A. Yes.
`
`Q. Could you please read that whole paragraph?
`
`A.
`
`"According to one, nonlimiting, preferred
`
`embodiment of the present invention, the first
`
`nonvolatile memory area is a ROH section of a BIOS;
`
`the second nonvolatile memory area is in the E2PROH
`
`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000577
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`
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 30 of 45
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`Page 29
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`section of a BIOS; and the volatile memory is a RAH,
`
`e.g. hard disk and/or internal memory of the
`
`com-]uter. "
`
`Q. With respect to this paragraph, do you
`
`believe that this paragraph discloses the concept of
`
`virtual memory?
`
`HS. RAHEBI: Objection, leading.
`
`THE WITNESS:
`
`Do I answer?
`
`BY HR. RONDINI:
`
`Q. Yes.
`
`A. Yes, that last part of the paragraph and the
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`volatile memory is a RAH, e.g. hard disk and/or
`
`internal memory of the computer, the this would
`
`indicate that virtual memory is at least contemplated.
`
`Q. Okay. Now, I believe you have in front of
`
`you your declaration, correct?
`
`A ¯
`
`Yes.
`
`I’d like to turn your attention to that real
`
`quickly.
`
`If you could, could you open it and turn to
`
`paragraph 13?
`
`A. Yes.
`
`Q. Could you please read paragraph 137
`
`A. "I understand that Apple contends that BIOS
`
`is only present in IBM computers presumably to exclude
`
`TSG Reporting- Worldwide 877-702-9580
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`ANCORA 00000578
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`Case 6:21-cv-00735-ADA Document 32-8 Filed 01/27/22 Page 31 of 45
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`Page 3@
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`Apple computers. That is not correct because
`
`virtually all computers have BIOS. Any computer that
`
`does not include BIOS would require the user to
`
`manually input the system initialization parameters
`
`described above at start-up. I am not aware of any
`
`computer available for retail sale today or in 1998
`
`when the ’941 application was filed that requires
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`manual initialization. This is because they all
`
`include BIOS which performs the initialization steps
`
`automatically at start-up."
`
`Q. You’ve also read Dr. Kelley’s declaration,
`
`have you not?
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`A. Yes, I have.
`
`HS. RAHEBI: Let me
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