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

Filing 628

RESPONSE to re 623 Order on Administrative Motion to File Under Seal, Apple Inc.s Responsive Claim Construction Brief, Refiled by Court Order (D.N. 623) by Apple Inc.(a California corporation). (Attachments: # 1 Declaration of Mark D. Selwyn in Support of Apple's Responsive Claim Construction Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S)(Selwyn, Mark) (Filed on 1/13/2012)

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EXHIBIT S 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 28 1 A 2 the entire. 3 entire document but I'm not sure. 4 Q I believe I -- what was provided to me was I'm not sure. It may have been the When counsel provided you the entire file 5 history did they specify what you would need to read 6 or you read the whole thing? 7 A I read the whole thing that was provided to 8 me and I believe it is Exhibit No. 2 in my 9 deposition, in my -- sorry, in my declaration, yes. 10 Q Your declaration references a number of 11 what were called extrinsic evidence, dictionary 12 definitions and textbooks. 13 selecting those definitions and textbooks excerpts 14 on which you rely? 15 A Yes. How did you go about A couple of principles are applied. 16 One was certainly those needed to be definitions or 17 writings that existed prior to 2005, August 30th, 18 and also tried to find textbooks or dictionary 19 definitions that were concise, to the point, and as 20 precise as possible rather than leaving definitions 21 open ended. 22 Q 23 24 25 Any other principles you used to select the extrinsic evidence? A I also made sure that the sources were credible; that they were either published by a TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 29 1 publisher that I recognized or they were -- if they 2 were references on the website, that they were 3 credible and they were published in a place that I 4 would consider reasonable. 5 Q Did counsel for Apple instruct you where to 6 search, what types of publications to search for 7 extrinsic evidence? 8 MR. SHAH: 9 Object to the extent it calls for privileged communication, but you can answer it. 10 THE WITNESS: 11 MR. SHAH: 12 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 14 don't want to ask you what you spoke with them 15 about, my question is whether you were the one who 16 selected the extrinsic evidence in your declaration 17 or it was provided by counsel. 18 19 20 A Absolutely, yes, I understand. I selected all of those. Q In your search for a definition of "applet" 21 in extrinsic sources have you come across any 22 definitions that did not support your opinion? 23 A Yes, I did. 24 Q Can you give me examples of those? 25 A One example of those was Microsoft's TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 30 1 control panel applet which is -- which was a very 2 sort of exceptional use of the term "applet," a very 3 limited in terms of how widely the term "applet" is 4 used and how Microsoft was using it in that context. 5 That was one example. 6 7 Q term "applet" exceptional? 8 9 Why do you consider Microsoft's use of the A Yes. Most applets are usually considered to be Java applets and/or similar to Java, Java, 10 sort of Java-like applets in the sense that they are 11 interpreted, they are an application or an app 12 running within an application. 13 The Microsoft control panel applets are 14 executable codes, they're actually dynamically- 15 linked libraries that do not require interpretation, 16 they run directly on the processor. 17 Q 18 applets. 19 You said that most applets are Java There are any applets that are not Java ones? 20 A Yes, a number of them. 21 Q Can you list them, please? 22 A Yes. For example, there are Python 23 applets, there are AppleScript applets, there are 24 JavaScript applets, there are applets in the context 25 of Flash, the Flash programming environment. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 31 1 Q So if a colleague came up to you and said 2 they're writing an applet you would not necessarily 3 know which one of those languages they were writing 4 it in? 5 A 6 MR. SHAH: I would automatically assume -Just give me a second. 7 Objection; vague. 8 You can answer if you understand the 9 10 question. THE WITNESS: Yes, I would -- I would assume 11 Java applets because those are the most common types 12 of applets. 13 Q 14 BY MS. MAROULIS: But they're not exclusive, correct? 15 A Correct. 16 Q Besides the reason you stated about why 17 Microsoft was exceptional in use of applets, is 18 there any other reason why you did not pick the 19 Microsoft definition for your declaration? 20 MR. SHAH: Object to form. 21 THE WITNESS: Yes. I felt that that represented 22 a very small percentage of all of the applets that 23 or all of the kinds of applets and it would not be 24 the usual or the common understanding of the term 25 "applet." TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 32 1 Q BY MS. MAROULIS: Do you agree that at 2 least some people in the programming community when 3 they hear the word "applet" can think of a Microsoft 4 control panel applet? 5 A Some, yes. 6 Q And do you agree that was the case in 2005 7 as well? 8 A Yes. 9 Q Besides coming across the Microsoft control 10 panel applet, did you see any other definition of 11 "applets" in your research that diverged from the 12 one you picked for your declaration? 13 MR. SHAH: 14 THE WITNESS: 15 Q 16 17 18 19 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 20 it remind you that there were in fact AppleScript 21 applets back in 2005? 22 A Yes, that is correct. 23 Q And in your research did you come across 24 25 the Python applets? A I was aware of Python applets but I did not TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 33 1 2 3 necessarily come across a writing or a textbook. Q Is it correct that Python applets existed in 2005? 4 A Yes, that is correct. 5 Q In your research did you come across Flash 6 7 program applets? A I was very well aware of Flash applets but 8 I did not find or obtain or look for documents 9 describing Flash applets. 10 11 Q You are aware they existed in 2005 as well, correct? 12 A Yes. 13 Q Are you familiar with Linux applets? 14 A I am not. 15 Q Let's turn to your declaration on Page 5. 16 What is the invention of the '711 patent? 17 MR. SHAH: Objection; vague. 18 THE WITNESS: I can summarize the '711 patent as 19 being a method or a teaching of how to accommodate 20 multitasking on a mobile device. 21 22 Q BY MS. MAROULIS: Is there any reference to Java in this patent? 23 A May I take a look? 24 Q Absolutely. 25 A No. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 39 1 2 operating-system independent? A This passage does not make reference to 3 operating-system independent. 4 association between an applet and an application 5 module, together with the claim language and the 6 prosecution, the file history, does suggest to me 7 that the applet requires the application module as 8 a, sort of as a context, and that relationship is 9 what one would expect from Java applets or Java-like 10 11 However, the applets, that interpreted. Q Setting aside the claim language and 12 prosecution history, is it correct that there's 13 nothing in this particular passage that indicates 14 operating-system independence? 15 16 17 18 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 21 music background play object, wherein the music 22 background play object includes an application 23 module including at least one applet." 24 25 Is there any mention of operating-system independence here? TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 40 1 A No. 2 Q Is there anything in this claim that you 3 see that supports your notion of operating-system 4 independence? 5 A What I see in this sentence, passage, is, 6 again, the association between an applet running or 7 an applet that is within an application module and 8 that association to me suggests a Java-like 9 interpreted environment. 10 11 Q Did you review the testimony of the inventor of this patent? 12 A Yes. I reviewed a subset of it. 13 Q Did you see that the inventor who was 14 developing this technology was working with system- 15 dependent applets? 16 A That is correct, yes. 17 Q Which system-dependent applets was he 18 19 20 21 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 23 chipset. 24 25 Q BY MS. MAROULIS: Do you disagree that the technology he was working on is described by Claim TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 41 1 1? 2 MR. SHAH: Object to the extent it calls for a 3 legal conclusion. 4 THE WITNESS: 5 6 I have not formed that position yet. Q BY MS. MAROULIS: Do you understand that he 7 was asked during deposition about the embodiments of 8 the patent? 9 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? 16 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 24 distinction clear. 25 Q BY MS. MAROULIS: If the '711 patent does TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 42 1 not make a distinction clear between system 2 dependent and system independent, do you agree then 3 that includes both? 4 MR. SHAH: 5 THE WITNESS: Objection to form. It could include, it could be 6 both, but the common understanding again would be 7 that it is consistent with applets as being 8 OS-independent, as being the more likely case. 9 10 11 12 13 Q BY MS. MAROULIS: It is more likely but it is not exclusively so, correct? MR. SHAH: Objection; mischaracterizes his testimony. THE WITNESS: If I were to read this or if 14 somebody who would be familiar with the area were to 15 read this in 2005 it would be assumed or it would be 16 understood for an applet to be an OS-independent 17 applet. 18 Q BY MS. MAROULIS: Would a person reading 19 this in 2005 be aware of applets in other language 20 environments? 21 A 22 MS. MAROULIS: 23 Yes. Okay. We can take a five-minute break. 24 THE WITNESS: Thank you. 25 THE VIDEOGRAPHER: The time is 9:54 a.m. and we TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 43 1 are off the record. 2 (Recess) 3 THE VIDEOGRAPHER: 4 are back on the record. 5 The time is 9:59 a.m. and we BY MS. MAROULIS: 6 Q Mr. Givargis, before the break we were 7 discussing the '711 patent. Other than the 8 "specification," quote, we discussed and the coding 9 language, there's no other portion of the '711 10 patent that you are relying on in your declaration, 11 correct? 12 A I believe so, yes. 13 MS. MAROULIS: I would like to now switch to the 14 prosecution history which is Exhibit 5 and, for the 15 record, the document control numbers are 16 SAMNDCA00007840 through 8459. 17 18 19 Q What is your understanding, sir, of what a file history is? A Yes. It has three components, some of it 20 are identifying information or titles of various 21 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 TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 45 1 the relevant passage you were relying on appears on 2 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 7 interview? 8 A No, I did not. 9 Q So the only record of this interview you 10 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 TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 46 1 this summary that leads you to believe that it 2 supports your opinion? 3 A Yes. The term "applet" and how it is used 4 as being an application module includes at least one 5 applet; that phrase, once again, that association 6 between an applet requiring an application module to 7 exist. 8 Q 9 Can both an applet and application module exist even if applet is system dependent? 10 MR. SHAH: 11 THE WITNESS: 12 Objection; vague. Yes. You may have to tell me, elaborate a little 13 bit more on how this, how this applet is system 14 dependent. 15 Q BY MS. MAROULIS: Do you agree that in 16 general you can have a system-dependent applet and 17 the application module to exist at the same, in the 18 same space? 19 A You can have a system-dependent applet 20 separately from having an applet that is operating- 21 system independent that runs within an application 22 system module if that is the question, yes. 23 Q In the context that the inventor of this 24 patent testified about where he was working with 25 Qualcom on this technology, isn't that correct that TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 47 1 he had the application module and a system-dependent 2 applet? 3 MR. SHAH: Objection; calls for speculation. 4 THE WITNESS: Based on what I know it is not 5 clear to me if both of those existed in the same 6 system. 7 Q BY MS. MAROULIS: Is there anything that 8 leads you to believe that the application module did 9 not exist in the system that Mr. Jeong was working 10 11 with? A Based on the very little I know about that 12 effort, it is not clear to me if there was an 13 application module in addition to the applet or 14 if -- if there was no application module in addition 15 to the applet. 16 Q If the technology he was working with was 17 the embodiment of the claims of the '711 patent 18 would you agree that it would include both the 19 application module and the system-dependent applet? 20 MR. SHAH: Object to the extent it calls for a 21 legal conclusion. 22 THE WITNESS: I believe I'm not familiar enough 23 with the system he was building as I mentioned 24 earlier. 25 I do know it involved things that were called I know it involved the Qualcom chipset and TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 48 1 applets which were OS-dependent but to the extent of 2 what other application modules existed in this 3 system or what other software systems were executing 4 in the environment, I do not have enough information 5 about that to draw a conclusion, yes. 6 Q BY MS. MAROULIS: Did you review his notes 7 relating to the system that he was building that was 8 part of the '711 patent? 9 10 A I recall being provided some notes that were in Korean which I was unable to understand. 11 In those notes there were certain English 12 phrases or words, including the word "applet," and 13 so I did come across those but I was unable to draw 14 any conclusions from that or to be able to 15 understand anything about the system. 16 17 Q Did you ask counsel for an English translation of the document? 18 A 19 MR. SHAH: 20 21 22 23 24 25 I may have indicated -I will just caution you not to reveal the substance of the communications between us. THE VIDEOGRAPHER: Sorry to interrupt. Could you bring your microphone a little bit higher? It is sliding. THE WITNESS: Thank you. It is possible I may have asked that a translation would help. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 49 1 2 3 Q BY MS. MAROULIS: Did counsel provide you with a translation? A I do not recall having reviewed the 4 translated versions. 5 MR. SHAH: Just I would like to state for the 6 record we only received permission for Dr. Givargis 7 to review the declaration from Cole on Sunday night. 8 9 MS. MAROULIS: I'm going to mark the next exhibit, Exhibit 6, and this one bears a protective 10 order designation of "Highly Confidential - 11 Attorneys' Eyes Only." 12 SAMNDCA00139800. It has production range 13 (Givargis Exhibit 6, a document, Bates No. 14 SAMNDCA00139800, marked for identification, 15 as of this date.) 16 17 Q BY MS. MAROULIS: Dr. Givargis, have you seen Exhibit 6 before? 18 A Yes. 19 declaration. 20 Q More recently as part of Mr. Cole's Did you understand that this was the 21 working records of the inventor of the '711 patent 22 relating to conception reduction to practice? 23 A Yes. 24 Q And this one is in English, correct? 25 A That is correct, yes. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 51 1 Q So the answer is no? 2 A Yes. 3 Q Let's turn to Exhibit 5 on Pages 7879 4 through 7885. 5 6 No. MR. SHAH: Take whatever time you need to review the document. 7 THE WITNESS: 8 Q 9 10 Yes. BY MS. MAROULIS: The particular document that I will be asking you about is called "Remarks/ Argument," do you see that? 11 A Yes. 12 Q Is that a paper that you relied on in your 13 report? 14 A Let me just read through it one second. 15 Q Take your time. 16 A Yes. 17 MR. SHAH: Let me just -- if you need to refer 18 to your report to answer your questions, you can do 19 so. 20 Q BY MS. MAROULIS: If it would help you, the 21 portion of your report that reviews the file history 22 starts with Page 8. 23 declaration you cite to the passage that starts on 24 Page 6 of the file history. 25 In Paragraph 37 of your This passage does not discuss applet being 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 81 1 I do recognize that there are sometimes in 2 conversational computer science used 3 interchangeably. 4 Q BY MS. MAROULIS: Do you agree these two 5 terms can be used interchangeably in the context of 6 the '711 patent? 7 MR. SHAH: Objection; asked and answered. 8 THE WITNESS: Yes, my answer would be the same. 9 I believe that it is important to recognize that an 10 application is more than just a program but that in 11 the field of computer science oftentimes a program 12 is used when an application would work equally as 13 well. 14 Q BY MS. MAROULIS: Besides Paragraph 11, are 15 there any other portions of Mr. Cole's declaration 16 that you agree with? 17 MR. SHAH: 18 19 Take whatever time you need to review the document. THE WITNESS: Yes. If you don't mind, I will 20 quickly look at the exhibits. Not the exhibits but 21 the description in the declaration. 22 Q BY MS. MAROULIS: Please go ahead. 23 A I believe we both agree that the '711 24 patent and the prosecution history does not define 25 the term "applet" adequately. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 82 1 2 Q Do you believe Mr. Cole says that applet is not adequately defined by the intrinsic record? 3 A Mr. Cole mentions that there is limited 4 discussion in the specification and claims of the 5 '711 patent, as well as the prosecution history, as 6 to the definition of the term "applet." 7 consistent with my understanding of my view of 8 things that the term "applet" is not adequately 9 defined in the patent. 10 11 Q That is Mr. Cole himself does not use the word "inadequate" or "not adequate," right? 12 A That is correct, yes. 13 Q So you agree with Mr. Cole that there is 14 limited intrinsic material in which to rely on. 15 A That is correct, yes. 16 Q Anything else that you and Mr. Cole agree A Yes. 17 18 on? In the "Extrinsic Evidence" section I 19 do agree with many of the examples that are 20 presented; for example, AppleScript applets, Linux 21 applets, Ruby applets, as being the kinds of 22 applets, different, not necessarily Java applets. 23 However, all of these, or at least the ones I just 24 enumerated, do follow the Java-like interpreted 25 nature of applets. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 83 1 Q And by that you mean AppleScript ones and 2 Ruby ones? 3 A By that I mean AppleScript applets, Linux 4 applets, Ruby applets and the Flash and Visual Basic 5 applets. 6 language. Those are all based on an interpreted 7 Q Are any of these applets system dependent? 8 A In my view what makes an applet system 9 independent is the fact that it can be transported 10 or transferred from one, one environment, one 11 operating system to another without the need of 12 reprogramming it or, you know, verbatim, in essence, 13 without having to redesign it. 14 interpreted -- the interpreted nature of these other 15 kinds of applets is consistent with that model. 16 Q And these So you are saying that, for example, 17 AppleScript applet is an operating-system 18 independent applet? 19 A In my view AppleScript applets are 20 specifically or mostly found or maybe even entirely 21 found within the Mac OS operating-system 22 environment, but my definition of being operating- 23 system independent is not based on availability of 24 an applet or the fact that it is only popular or 25 used within a particular operating system, but it is TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 84 1 the interpreted nature of it which makes it a very 2 high-level program easily portable to, in the sense 3 that it would not require reprogramming to another 4 operating system. 5 applets are scripts that can be executed on another 6 operating system. 7 Q In that sense, yes, AppleScript Does the definition of operating-system 8 independent that you just used appear anywhere in 9 your expert declaration? 10 A I do not think so. 11 Q When did you form this opinion about what 12 it means to be operating-system independent? 13 A In the process of research and on this case 14 it was necessary to think and to try to formulate a 15 working definition so that I could actually do my 16 work. 17 18 19 20 Q Is there any reason why you did not include this definition in your declaration? A No particular reason other than I felt that it is -- it is well understood in this case. 21 Q 22 strike that. 23 In your declaration you primarily define -- In your declaration you refer to operating- 24 system independence as equivalent to Java most of 25 the time, correct? TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 85 1 2 3 MR. SHAH: Objection. The document speaks for itself. THE WITNESS: In my document I use Java as a 4 very good example of an operating-system independent 5 environment in programming language paradigm, you 6 will say. 7 operating-system independent kind of applet for 8 language. 9 Q But it certainly is not the only BY MS. MAROULIS: The definition of 10 operating-system independent you just used today is 11 broader than what you used in your declaration, 12 correct? 13 14 15 16 17 MR. SHAH: Objection; mischaracterizes his testimony. THE WITNESS: Can you refer me to the definition I have used in the declaration? Q BY MS. MAROULIS: I understand your 18 declaration to equate Java and operating-system 19 independence; is that right? 20 21 22 A It is the case that Java is an operating- system independent programming language. Q Nowhere in your declaration have you 23 actually stated the definition of the operating- 24 system independence that you used a few minutes ago 25 when I asked you a question; is that right? TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 86 1 2 MR. SHAH: Objection; the document speaks for itself. 3 THE WITNESS: 4 Q That is correct, yes. BY MS. MAROULIS: Now Mr. Cole considers 5 the applets you and I have been discussing systems, 6 operating-systems dependent, correct? 7 A Mr. Cole lists these applets and in some 8 cases draws that conclusion. For example, in the 9 case of AppleScript it says that AppleScript is a 10 system scripting language used for the Macintosh OS 11 operating system. 12 13 14 Q Do you disagree with him with respect to that? A I do not disagree with him but I'm not 15 certain if what Mr. Cole, for instance, says in 52 16 eliminates the possibility of AppleScript being 17 operating-system independent. 18 19 20 Q Would you be able to run an AppleScript applets on a Windows computer? A If I could obtain the specification for 21 AppleScript programming language, the scripting 22 language, and if I were to build an interpreter that 23 ran natively on Windows, then I could take an 24 AppleScript applet and, without modification, run it 25 or interpret it on the Windows environment. TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 95 1 THE WITNESS: 2 Q That is my understanding, yes. BY MS. MAROULIS: In reviewing the 3 extrinsic evidence sources that Mr. Cole cites did 4 you seen any sources that you have previously 5 encountered in your day-to-day job as a programming 6 professor, an expert? 7 MR. SHAH: 8 THE WITNESS: 9 Object to form. The one that I would be most familiar with is Python applets. Python is -- has 10 become a popular language and it is used heavily in 11 universities for teaching. 12 13 14 Q BY MS. MAROULIS: Do you agree with Mr. Cole's description of Python applets? A I recognize that Python applets are used in 15 the context of Linux or Ubuntu, a particular 16 distribution of Linux. 17 written in the language Python which is an 18 interpreted language and Python is available for 19 Windows, Python is available for various flavors of 20 Linux, there is even a Python interpreter that would 21 run on a MAC OS, so I believe the conclusion that 22 these applets, these Python applets are specific on 23 Linux or Ubuntu is false. 24 25 Q However, Python applets are So you don't believe that Python apps -- pardon me, Python applets are systems dependent in TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 96 1 the Linux program? 2 MR. SHAH: 3 THE WITNESS: Objection; mischaracterizes. Python is a programming language 4 independent of Linux and it is an interpreted 5 language and there exists interpreters on a number 6 of platforms that I know of including Windows, Mac 7 OS and Linux that would support executing a Python 8 applet on those other operating systems. 9 10 Q BY MS. MAROULIS: You would only be able to -- strike that. 11 You would only be able to execute those 12 applets with a help of a translator or interpreter, 13 correct? 14 15 16 A That is correct. And it is applicable to interpreted languages in general, yes. Q And the same is true of all the applets 17 listed in Mr. Cole's declaration on Paragraphs 14 -- 18 strike that. 19 A Paragraphs 51 through 58, correct? That is not correct. 51 is a control panel 20 applet that Microsoft has, has used. 21 particular applet is -- is one that is OS-dependent 22 and does not follow the interpreted nature of some 23 of these other applets that we have been looking at. 24 25 Q This You are referring to Paragraph 51 that describes the desktop applets, correct? TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 97 1 A That is correct, yes. 2 Q So that's an example of an applet that is 3 strictly systems dependent, operating-systems 4 dependent? 5 A Microsoft-controlled panel applets are 6 operating-system dependent. 7 Microsoft operating system. 8 9 10 Q I think we've talked about AppleScript and Linux applets before. A In particular, the Yes. What about the Ruby applet? Ruby applets are also interpreted and 11 the Ruby language is an interpreted language. 12 Applets written in this language can be executed by 13 any translator or interpreter available on a 14 particular platform. 15 16 Q And, again, without a translator it only can run on the window-specific environment, correct? 17 MR. SHAH: Objection; calls for speculation. 18 THE WITNESS: Any Ruby program would just be a 19 file and unusable unless there is a translater 20 available to parse and interpret and translate 21 instructions to in this case Windows. 22 Q BY MS. MAROULIS: Are you familiar with the 23 Flash applets mentioned in Paragraph 57 of Mr. 24 Cole's declaration? 25 A Yes, I'm familiar with Flash to the extent TSG Reporting 877-702-9580 HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY Page 98 1 that I know there is a Flash language and there is a 2 Flash Plug In or player that is very, in common use, 3 and that it follows the same model of Ruby or Python 4 applets that we were discussing earlier but it has 5 an emphasis towards graphical display and video 6 streaming and multimedia in general. 7 Q Is it systems dependent or independent? 8 A Flash applets would require a Flash player. 9 10 11 Any system that supports the Flash player can operate or run a Flash applet. Q So would you agree with me that Flash 12 applets are systems, operating-systems dependent 13 insofar as they need to have a Flash Plug In to 14 operate? 15 16 17 A If you were to call the Flash Plug In an operating system then yes. Q Can you please review the portion of Mr. 18 Cole's declaration that starts with Paragraph 59 and 19 is entitled "Applet Does Not Have to be Operating 20 System Independent" And let me know if there are any 21 portions that you agree with. 22 A So in section, in Paragraph 59 I do agree 23 that applet, the term "applet" is an overloaded 24 term, it has been defined in many, many ways. 25 However, most, the common or the rule when it comes TSG Reporting 877-702-9580

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