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

Filing 621

OPPOSITION to ( #532 Apple's Motion to Strike Evidence Not Disclosed as Required by Patent Local Rule 4-3(b) ) filed by Samsung Electronics Co. Ltd.. (Attachments: #1 Declaration of Todd M. Briggs, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G)(Briggs, Todd) (Filed on 1/12/2012) Modified text on 1/13/2012 (dhm, COURT STAFF).

EXHIBIT G

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 1
1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5
6
7
8
9
10
11
12
13

---------------------------------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

14
15
16
17

VIDEOTAPED DEPOSITION OF TONY GIVARGIS, PH.D.

18

Los Angeles, California

19

Tuesday, December 6, 2011

20
21

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

22
23

Reported by:

24

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

25

JOB NO. 44330
TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 52
1

system independent, correct?

2

A

That is correct, yes.

3

Q

What about this passage do you believe

4
5

supports your opinion?
A

This passage also refers to, includes an

6

application module including at least one applet so

7

there is this applet being included within an

8

application module property that is consistent with

9

the Java-like execution environment of applets which

10
11

I rely on for my definition of "applets."
Q

Can this notion of inclusion of the applet

12

within the application that you refer to exist

13

outside Java?

14

MR. SHAH:

Objection; form.

15

THE WITNESS:

Yes.

This notion of inclusion is

16

actually a very, very common design, sort of a

17

paradigm where one application serves as a host

18

interpreting another application or a set of

19

application on, if you will, on top.

20

the Java model of execution where the Java codes or

21

Java applications are interpreted by the host

22

application.

23

consistent with all interpreted language like Ruby

24

or PHP or even AppleScript and JavaScript.

25

Q

For example, a browser.

BY MS. MAROULIS:

And this is

It is also

In the context of the

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 53
1

host application can an applet be still system

2

dependent or are you saying it is always system

3

independent?

4

A

5

Typically.
The purpose of this inclusion or this

6

framework that I just described is to make the

7

applet OS-independent.

8

example or an exceptional case or a scenario where

9

one would build an applet that bypasses that notion

I'm certain there is an

10

so -- it is not universally the case but commonly

11

the case.

12

Q

Can you give me an example of such a

13

situation where you would have a host application

14

and still have a system-dependent applet?

15

A

Well, one example could be an applet that

16

exploits certain weakness or error or shortcoming of

17

the host application to gain access to the

18

underneath operating system, so in that sense that

19

applet is certainly OS-dependent.

20

In another example, it could be that that

21

applet is designed to take advantage of certain

22

resources of Operating System A and those resources

23

may not be available on Operating System B and in

24

that case too that applet would be dependent on

25

Operating System A and not portable to Operating

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 54
1

System B.

2

Q

Any other examples?

3

A

I can't think of any now.

4

Q

Can a Java applet be programmed to be

5
6

operating-system dependent?
A

I believe Java applets by design inherently

7

are operating-system independent.

8

would be the two I mentioned previously, a security

9

breach of some sort or a lack of resources of some

10
11

The exceptions

sort on one platform versus another.
Q

But can someone choose to program an

12

operating dependent, operating-system dependent

13

applet in the Java context?

14

MR. SHAH:

Object to form.

15

THE WITNESS:

Not specifically using the Java

16

programming language and the associated, the

17

understood to be Java tools for designing and

18

developing applications.

19
20
21

Q

BY MS. MAROULIS:

When you say not strictly

using, what is the distinction that you are drawing?
A

Well, Java is a programming language and

22

the programming language itself, setting aside the

23

environment where the code will execute and the

24

tools that would possibly compile the code, only

25

records or specifies the sequence of instructions

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 69
1
2

appreciate it.
MS. MAROULIS:

3
4

I anticipated your need.

We're going to mark this as Exhibit 8 for
identification.

5

(Givargis Exhibit 8, a document, marked for

6

identification, as of this date.)

7

THE WITNESS:

8

Q

9
10
11
12
13
14

Thank you.

BY MS. MAROULIS:

Is Exhibit 8 the excerpt

of the "Developer's Resource" guide that you were
citing to in your declaration?
A

Yes.

It appears to be pages of the

chapter, yes.
Q

And I believe the explanation you are

referring to is on Pages 11 and 12.

15

A

Yes.

16

Q

Is there anything in this excerpt that says

17

that applets must be system, operating-system

18

independent?

19
20
21

MR. SHAH:

Objection.

The document speaks for

itself.
THE WITNESS:

I believe that this document very

22

strongly suggests that Java applets are platform

23

independent.

24

Q

25

BY MS. MAROULIS:

Where in particular do

you see that?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 70
1

A

Well, the text has an entire paragraph that

2

talks about distributing executable programs and how

3

that is, these programs, binary programs, are

4

closely tied to a specific hardware and operating

5

system.

6

examples.

And then it goes on -- and then gives some

7

And then it goes on to say how Java solves

8

the problem of platform independence by using byte

9

code.

10
11

Byte codes, and it describes the rest of it.

Q

So this particular reference is limited to

Java environment, right?

12

A

That is correct, yes.

13

Q

And so in your -- by definition it will not

14
15
16
17

talk about operating-system dependent applets.
MR. SHAH:

Objection; mischaracterizes his

testimony.
THE WITNESS:

Applets as commonly understood are

18

usually Java applets or Java-like applets,

19

interpreted programs, and this document gives an

20

example of how a Java achieves that mechanical

21

independence of the OS.

22
23
24
25

Q

BY MS. MAROULIS:

I'm sorry, my question

wasn't clear.
Since this particular document is limited
to Java, you personally would not expect to see

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 71
1

discussion of operating-system dependent applets in

2

it, correct?

3

A

That is correct, because the operating-

4

system independent nature of Java is a very

5

fundamental and core aspect of the Java, and Java-

6

like interpreted nature of interpreted languages.

7
8

Q

In arriving at your opinion did you examine

the accused devices in this case?

9

A

I did not.

10

Q

Do you know which devices Samsung is

11
12
13
14
15
16
17
18
19
20
21

accusing of infringement?
A
the iPad.
Q

24
25

Do you know which ones, whether it is

iPhone or iPad or both?
A

I believe it is both but I'm not certain a

hundred percent, yes.
Q

Do you know which particular versions of

iPhone are being accused?
MR. SHAH:

I caution the witness not to

speculate.

22
23

I believe it involves the iPhone, possibly

If you know, you can answer.
THE WITNESS:

Yes, I do not know the exact

answer.
Q

BY MS. MAROULIS:

Do you know which

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 72
1

particular versions of iPad, if any, are accused?

2

MR. SHAH:

Same objection.

3

THE WITNESS:

4

Q

I do not know the exact version.

BY MS. MAROULIS:

Do you know how any of

5

the accused devices operate in terms of which

6

programming environment they use?

7

MR. SHAH:

8

THE WITNESS:

9
10

13

I am familiar with the programming

language used by Apple Corporation in its various
products, yes.

11
12

Same caution.

Q

BY MS. MAROULIS:

What language does Apple

A

The bulk of the language that Apple uses is

use?

14

Objective-C but there is also the C, pure C code in

15

a lot of Apple products.

16
17

Q

Have you looked at any Samsung devices

embodying the '711 patent?

18

MR. SHAH:

Objection to the extent it calls for

19

a legal conclusion.

20

THE WITNESS:

21

Q

22

strike that.

23
24
25

I have not.

BY MS. MAROULIS:

Do you know whether --

Do you know which programming language is
used by the Samsung devices embodying this patent?
A

I do not.

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 112
1

little break, I will decide if I have any questions.

2

I just want to have a look at something.

3

MS. MAROULIS:

4

Okay.

Before I forget, we need to mark the

5

transcript as attorneys' eyes only because we

6

discussed inventor testimony.

7

MR. SHAH:

8

THE VIDEOGRAPHER:

9

10 minutes?

Okay.

The time is 12:07 p.m. and

we're off the record.

10

(Recess)

11

THE VIDEOGRAPHER:

12

The time is 12:21 p.m. and we

are back on the record.

13
14

EXAMINATION

15

BY MR. SHAH:

16

Q

17

Dr. Givargis, I just wanted to clarify a

couple of points.

18

You were asked about experience in

19

programming languages, certain languages.

20

want to clarify experience in the Objective-C

21

language?

22
23
24
25

A

Yes.

Did you

I am familiar with Objective-C and I

have indeed written applications in Objective-C.
Q

You were asked a question about whether you

reviewed the file history of the '711 patent in

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 113
1

preparation of your expert declaration and you said

2

you -- tell me if this is a fair characterization --

3

you said that you weren't sure if you had reviewed

4

the entire thing?

5

A

Yes.

6

MS. MAROULIS:

7

THE WITNESS:

Objection; leading.
I certainly received that in PDF

8

format, it was not in print format, and I recall

9

going through it.

Certain areas I read very

10

carefully, in particular those having to do with

11

examiner's comments and response to office action.

12

Certain parts of it were in Korean, I could only

13

skip to the translations that followed, and certain

14

parts of it appeared to just be sort of very --

15

titles or head pages and so on.

16

went through entire document at the time on the

17

computer, PDF format.

18
19

Q

BY MR. SHAH:

But I certainly

That was in advance of

submitting your declaration that is Exhibit 1?

20

A

Correct.

21

Q

You were asked earlier in the deposition if

22

you had any familiarity with what sounded like Links

23

applets.

24

to determine if you had any familiarity with Linux

25

applets, could you answer that question?

To the extent that that question was meant

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 114
1

A

I am familiar with Linux applets,

2

particularly the Python applets that are used within

3

Linux.

4

Q

Links applets, no.

But Linux, yes.

You also mentioned a publication by an

5

author Andre Nacul that you had reviewed in advance

6

of your submitting the declaration that is Exhibit

7

1; is that correct?

8

A

That is correct.

9

Q

And was that a part of your consideration

10

in preparing this document?

11

A

It was not.

12

MS. MAROULIS:

13

THE WITNESS:

Objection; vague.
It was not.

I reviewed that paper

14

very early on just to refresh my memory about that

15

work and see how it relates to the patent, but I had

16

long ago concluded that it has very little overlap

17

and I did not use it as part of my declaration.

18
19
20

Q

BY MR. SHAH:

Is it your opinion that the

Flash Plug In is an operating system?
A

I do not belief that plugin is an operating

21

system.

22

and components and it is by far distinct from a

23

plugin like Flash Plug In.

24
25

Q

An operating system encompasses many parts

You were asked earlier in today's

deposition if the sources of extrinsic evidence

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 115
1

relied upon in Mr. Cole's exhibit were credible or

2

trustworthy.

3

question?

4

A

5

Do you recall being asked a similar

Yes, I recall.
Those sources which I reviewed, some of

6

them contained web, forum postings or message board

7

posts that I would consider less credible than, for

8

instance, the dictionary definition or a textbook.

9

Q

When you originally were asked the question

10

did you go back and review the exhibits before you

11

answered the question?

12

A

I did not.

13

Q

And one last question.

14

On -- you were asked about Exhibit 3, the

15

Joint Claim Construction and Prehearing Statement,

16

and referring to Pages 12 and 13 you were asked a

17

question about the list of extrinsic evidence relied

18

upon in support of Apple's proposed construction in

19

support.

Do you remember that?

20

A

Yes.

21

Q

Is it your opinion that all of these

22

extrinsic sources of support for Apple's

23

construction are related to Linux -- or strike.

24

related to Java?

25

MS. MAROULIS:

Objection; compound.

TSG Reporting 877-702-9580

Are

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 116
1

THE WITNESS:

Not all of them.

Some of these

2

are dictionary definitions that are unbiased towards

3

one language or another.

4

definitions.

5

Q

6

BY MR. SHAH:

They're simply

Did you consider -- strike.

Nothing further.

7
8

FURTHER EXAMINATION

9

BY MS. MAROULIS:

10

Q

Mr. Givargis, when I asked you whether Mr.

11

Cole cited reliable sources of extrinsic evidence

12

you answered yes to me, correct?

13

A

That is correct, yes.

14

Q

And then when your counsel questioned you

15
16

you changed your testimony; is that correct?
A

I believe I augmented it or corrected it to

17

the degree that, one, I did not actually

18

specifically go through all of the exhibits and read

19

all of it at this point, and that two, I do recall

20

that some of them were message board postings and

21

such and some were more technical documents; for

22

instance, from Microsoft MSDN, their developer

23

network, and that I recognized that a message board

24

posting does not carry the same weight as, say, a

25

technical posting that comes from Microsoft.

TSG Reporting 877-702-9580