Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 466

Declaration of Brett Arnold in Support of #465 Administrative Motion to File Under Seal SAMSUNG'S OPENING CLAIM CONSTRUCTION BRIEF filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Exhibit 1, #2 Exhibit 2a, #3 Exhibit 2b, #4 Exhibit 2c)(Related document(s) #465 ) (Maroulis, Victoria) (Filed on 12/8/2011)

Exhibit F

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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5
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---------------------------------x
APPLE INC., a California
)
corporation,
)
)
Plaintiff,
)
)
vs.
)
)No. 11-CV-01846LHK
SAMSUNG ELECTRONICS CO., LTD.,
)
a Korean entity; SAMSUNG
)
ELECTRONICS AMERICA, INC., a
)
New York corporation; SAMSUNG
)
TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability
)
Company,
)
)
Defendants. )
---------------------------------x

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VIDEOTAPED DEPOSITION OF TONY GIVARGIS, PH.D.

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Los Angeles, California

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Tuesday, December 6, 2011

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Reported by:

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SUSAN A. SULLIVAN, CSR #3522, RPR, CRR

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JOB NO. 44330
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Tuesday, December 6, 2011

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8:56 a.m.

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VIDEOTAPED DEPOSITION OF TONY GIVARGIS,

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PH.D., taken by Defendants, at the offices

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of Quinn, Emanuel, Urquhart & Sullivan,

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865 South Figueroa Street, Los Angeles,

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California, before Susan A. Sullivan, CSR,

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RPR, CRR, State of California.

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MR. SHAH:

and representing Apple.
THE VIDEOGRAPHER:

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Ali Shah, WilmerHale, for the witness

Thank you.

And will the reporter now swear or affirm
the witness.

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TONY GIVARGIS, PH.D.,

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called as a witness, having been duly sworn by

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the court reporter, was examined and testified

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as follows:

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12

EXAMINATION

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BY MS. MAROULIS:

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Q

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today?

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A

Good, thank you.

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Q

My name is Victoria Maroulis and I will be

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Good morning, Mr. Givargis.

How are you

asking you some questions today.

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Have you ever been deposed before?

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A

No.

21

Q

In that case let me briefly run you through

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23

the rules of the deposition.
First of all, do you understand that you

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are testifying today like you would be in a court of

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law under oath even though we're sitting in a

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publisher that I recognized or they were -- if they

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were references on the website, that they were

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credible and they were published in a place that I

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would consider reasonable.

5

Q

Did counsel for Apple instruct you where to

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search, what types of publications to search for

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extrinsic evidence?

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MR. SHAH:

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Object to the extent it calls for

privileged communication, but you can answer it.

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THE WITNESS:

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MR. SHAH:

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the communication.

13

Q

Not necessarily.

They told me --

Again, just a caution on substance of

BY MS. MAROULIS:

Let me help you out.

I

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don't want to ask you what you spoke with them

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about, my question is whether you were the one who

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selected the extrinsic evidence in your declaration

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or it was provided by counsel.

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A

Absolutely, yes, I understand.

I selected

all of those.
Q

In your search for a definition of "applet"

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in extrinsic sources have you come across any

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definitions that did not support your opinion?

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A

Yes, I did.

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Q

Can you give me examples of those?

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A

One example of those was Microsoft's

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control panel applet which is -- which was a very

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sort of exceptional use of the term "applet," a very

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limited in terms of how widely the term "applet" is

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used and how Microsoft was using it in that context.

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That was one example.

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7
8
9

Q

Why do you consider Microsoft's use of the

term "applet" exceptional?
A

Yes.

Most applets are usually considered

to be Java applets and/or similar to Java, Java,

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sort of Java-like applets in the sense that they are

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interpreted, they are an application or an app

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running within an application.

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The Microsoft control panel applets are

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executable codes, they're actually dynamically-

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linked libraries that do not require interpretation,

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they run directly on the processor.

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Q

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applets.

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You said that most applets are Java
There are any applets that are not Java

ones?

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A

Yes, a number of them.

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Q

Can you list them, please?

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A

Yes.

For example, there are Python

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applets, there are AppleScript applets, there are

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JavaScript applets, there are applets in the context

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of Flash, the Flash programming environment.

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Q

So if a colleague came up to you and said

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they're writing an applet you would not necessarily

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know which one of those languages they were writing

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it in?

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A

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MR. SHAH:

I would automatically assume -Just give me a second.

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Objection; vague.

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You can answer if you understand the

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10

question.
THE WITNESS:

Yes, I would -- I would assume

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Java applets because those are the most common types

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of applets.

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Q

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BY MS. MAROULIS:

But they're not

exclusive, correct?

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A

Correct.

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Q

Besides the reason you stated about why

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Microsoft was exceptional in use of applets, is

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there any other reason why you did not pick the

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Microsoft definition for your declaration?

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MR. SHAH:

Object to form.

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THE WITNESS:

Yes.

I felt that that represented

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a very small percentage of all of the applets that

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or all of the kinds of applets and it would not be

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the usual or the common understanding of the term

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"applet."

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Q

BY MS. MAROULIS:

Do you agree that at

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least some people in the programming community when

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they hear the word "applet" can think of a Microsoft

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control panel applet?

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A

Some, yes.

6

Q

And do you agree that was the case in 2005

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as well?

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A

Yes.

9

Q

Besides coming across the Microsoft control

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panel applet, did you see any other definition of

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"applets" in your research that diverged from the

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one you picked for your declaration?

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MR. SHAH:

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THE WITNESS:

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Q

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Objection; vague.
No.

BY MS. MAROULIS:

Did you see any

definition of AppleScript applets?
A

I first came to -- to see AppleScript

applets when I read Mr. Cole's declaration.
Q

And upon reading Mr. Cole's declaration did

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it remind you that there were in fact AppleScript

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applets back in 2005?

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A

Yes, that is correct.

23

Q

And in your research did you come across

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the Python applets?
A

I was aware of Python applets but I did not

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necessarily come across a writing or a textbook.
Q

Is it correct that Python applets existed

in 2005?

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A

Yes, that is correct.

5

Q

In your research did you come across Flash

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program applets?
A

I was very well aware of Flash applets but

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I did not find or obtain or look for documents

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describing Flash applets.

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11

Q

You are aware they existed in 2005 as well,

correct?

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A

Yes.

13

Q

Are you familiar with Linux applets?

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A

I am not.

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Q

Let's turn to your declaration on Page 5.

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What is the invention of the '711 patent?

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MR. SHAH:

Objection; vague.

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THE WITNESS:

I can summarize the '711 patent as

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being a method or a teaching of how to accommodate

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multitasking on a mobile device.

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Q

BY MS. MAROULIS:

Is there any reference to

Java in this patent?

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A

May I take a look?

24

Q

Absolutely.

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A

No.

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2

Q

system independent nature of applets?

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Is there any references in this patent to

A

You mean operating-system dependent or just

system?

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Q

Yes.

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A

No, there is not.

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Q

If you recall, is there any reference to

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Java in the context of applets in the prosecution

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history?

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MR. SHAH:

If you need to review any documents,

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you can ask for them.

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THE WITNESS:

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had a copy of the prosecution history.

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Yes, I would appreciate it if I

MS. MAROULIS:
history.

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I'm happy to mark the file

It is rather sizeable.
Let's mark this as Exhibit 5.

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(Givargis Exhibit 5, a document, Bates Nos.

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SAMNDCA00007840 to SAMNDCA00008459, marked

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for identification, as of this date.)

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Q

BY MS. MAROULIS:

Sir, I'm placing before

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you Exhibit 5.

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prosecution history of the '711 patent?

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Do you recognize it as the

A

I believe portions of it I have reviewed,

Q

You don't remember reviewing the whole

yes.

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thing?

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A

Not the entire thing, no.

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Q

How did you decide what portions of that

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file history to review?

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A

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attorneys.

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Q

The file history was provided to me by the

The file history that you see before you is

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double-sided, so do you remember giving me documents

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that is this thick or thicker or was it a smaller

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document?

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A

I recall a smaller document.

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MS. MAROULIS:

Counsel, I would appreciate

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seeing the version of the file history that was

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provided to the witness.

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MR. SHAH:

I can represent that we provided the

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certified file history.

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MS. MAROULIS:

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MR. SHAH:

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MS. MAROULIS.

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Q

The entire file history?

We did.
Via PDF file, not via paper.

BY MS. MAROULIS:

This is not a memory

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test, but do you recall any references to Java in

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the context of applets in the file history?

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A

There was absolutely no reference to Java

in the file history that I reviewed.
Q

Was there any reference to applet being

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operating-systems independent?
A

I do not recall any reference to operating-

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system-independent applets in the file history that

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I reviewed.

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Q

Turning back to Exhibit 2 which is the

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patent-in-suit, is it correct, sir, that there's

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only one place where applets are mentioned in the

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patent?

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A

There is only one place in the

specification that refers to patents.

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Q

Thank you.

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A

And to applet.

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Q

Thank you for correcting me.

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specification.

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I did mean

And is it correct, sir, that that place in
the specification is Column 3, Lines 8 through 14?

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A

Yes, that is correct.

18

Q

This passage does not mention Java as well,

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correct?

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A

That is correct.

21

Q

And it does not mention operating-systems

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independent.

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A

That is correct, yes.

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Q

Why do you cite this passage to support

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your definition in your declaration?

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A

Yes.

The important element of this passage

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is the part that says at least one applet within an

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application model -- module or in each of the

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application modules, and that relationship of an

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applet within an application module or in the

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context of an application module is relevant to my

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understanding and definition of applets being

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interpreted by a host application module.

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Q

Where do you see the word "within," sir?

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A

There is no "within" in this, in this

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particular text.

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Q

Okay.

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A

There's an association, yes.

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Q

Can you explain how you read this last

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16

sentence to support your definition.
A

"Application modules of the portable

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terminal include at least one applet and each of the

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application modules, that is each menu of the

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portable terminal, independently performs multi-

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tasking."

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So as I interpret it, the applets run

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within or execute within an application module or

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execute in the context of an application module.

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Q

Do you draw a distinction between

"application module" and "program"?

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operating-system independent?
A

This passage does not make reference to

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operating-system independent.

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association between an applet and an application

5

module, together with the claim language and the

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prosecution, the file history, does suggest to me

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that the applet requires the application module as

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a, sort of as a context, and that relationship is

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what one would expect from Java applets or Java-like

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However, the

applets, that interpreted.
Q

Setting aside the claim language and

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prosecution history, is it correct that there's

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nothing in this particular passage that indicates

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operating-system independence?

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A

Nothing in the passage mentions anything

about being operating-system independent, yes.
Q

Let's take a look at the claim language.

For example, Claim 1 in Column 7, do you see that?

19

A

Yes.

20

Q

The relevant limitation is "Generating a

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music background play object, wherein the music

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background play object includes an application

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module including at least one applet."

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Is there any mention of operating-system
independence here?

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A

No.

2

Q

Is there anything in this claim that you

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see that supports your notion of operating-system

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independence?

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A

What I see in this sentence, passage, is,

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again, the association between an applet running or

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an applet that is within an application module and

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that association to me suggests a Java-like

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interpreted environment.

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Q

Did you review the testimony of the

inventor of this patent?

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A

Yes.

I reviewed a subset of it.

13

Q

Did you see that the inventor who was

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developing this technology was working with system-

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dependent applets?

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A

That is correct, yes.

17

Q

Which system-dependent applets was he

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working with, to your understanding?
MR. SHAH:

If you need to see any documents to

refresh your recollection, you can ask.
THE WITNESS:

Yes.

I think this one I can

22

answer without the document, but it was a Qualcomm

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chipset.

24

Q

BY MS. MAROULIS:

Do you disagree that

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1?

2

:
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6

I have not formed that position

yet.
Q

BY MS. MAROULIS:

Do you understand that he

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was asked during deposition about the embodiments of

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the patent?

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10

MR. SHAH:

Same objection.

THE WITNESS:

11

Q

I'm not sure exactly what he

was asked.

12

Yes.

BY MS. MAROULIS:

If the technology that he

13

was working on embodies this claim would you agree

14

with me that the claim includes applets that are

15

also system dependent?

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MR. SHAH:

Same objection.

17

THE WITNESS:

Based on -- I recognize that the

18

inventor was working with a system that was

19

OS-dependent, specifically the Qualcom chipset.

20

However, that use of the term "applet" within that

21

context was unusual or it was not consistent with

22

the common understanding of the term "applet" at the

23

time and the '711 patent does not make that

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25

Q

BY MS. MAROULIS:

If the '711 patent does

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are off the record.

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(Recess)

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THE VIDEOGRAPHER:

The time is 9:59 a.m. and we

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are back on the record.

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BY MS. MAROULIS:

6

Q

Mr. Givargis, before the break we were

7

discussing the '711 patent.

Other than the

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"specification," quote, we discussed and the coding

9

language, there's no other portion of the '711

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patent that you are relying on in your declaration,

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correct?

12

A

I believe so, yes.

13

MS. MAROULIS:

I would like to now switch to the

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prosecution history which is Exhibit 5 and, for the

15

record, the document control numbers are

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SAMNDCA00007840 through 8459.

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18
19

Q

What is your understanding, sir, of what a

file history is?
A

Yes.

It has three components, some of it

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are identifying information or titles of various

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documents and so on.

22

which is sort of the examiner's rejections and a

23

description of why those rejections are followed by

24

a response to the office action which comes from the

25

applicant in response to the rejections.

Then it has another component

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Q

are you relying on in your declaration?

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4
5

What particular portions of this document

MR. SHAH:

Look at your declaration if you need

to.
THE WITNESS:

Yes.

May I look at my

6

declaration?

7

Q

BY MS. MAROULIS:

8

A

Yes.

Yes.

I'm relying on the examiner's

9

suggestion that the phrase "a music background play

10

object" will be -- will be augmented with "the music

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background play objects including an application

12

module includes at least one applet" to distinguish

13

it from the Kokubo patent."

14
15

Q

Are you reviewing to the interview with the

examiner on December 8, 2009?

16

A

Yes.

17

Q

If you would like you can turn to Pages

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7871 through 7873 of this exhibit, of Exhibit 5.

19

A

Yes.

20

Q

Is this the record of the examiner's

21
22
23

interview that we have been talking about?
MR. SHAH:

Objection.

The document speaks for

itself.

24

THE WITNESS:

25

Q

Yes, that's correct.

BY MS. MAROULIS:

And is it correct that

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the relevant passage you were relying on appears on

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Page 7873 of Exhibit 5?

3

A

This appears to be a summary of the

4

interview that is consistent with the passage I have

5

been relying on, yes.

6

Q

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interview?

8

A

No, I did not.

9

Q

So the only record of this interview you

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Did you interview any participants of this

are relying on is this summary here, correct?

11

A

12

text, yes.

13

Q

And the --

14

A

Surrounding it.

15

Q

And the followup filings by the applicants.

16

A

Correct.

17

Q

Is there anything in this interview summary

18

This summary and some of the additional

that mentions Java?

19

A

No, there is not.

20

Q

And is there anything in this summary that

21
22
23

mentions applet being system independent?
MR. SHAH:

Objection.

The document speaks for

itself.

24

THE WITNESS:

25

Q

No, there is not.

BY MS. MAROULIS:

What in particular about

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Exhibit G