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)
EXHIBIT F
HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY
JOE TIPTON COLE - 12/16/2011
Page 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
--oOo-APPLE, INC., a California corporation
Plaintiff,
vs.
Case No. 4:11-cv-01846-LHK
SAMSUNG ELECTRONICS CO.,
LTD., et al.
Defendants.
___________________________/
DEPOSITION OF
JOE TIPTON COLE
__________________________________
Friday, December 16, 2011
**HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY**
REPORTED BY: COREY W. ANDERSON, CSR 4096
(2003-439831)
617-542-0039
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10:32:44
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10:32:46
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any of the message boards you relied on for your
10:32:49
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applet references?
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4
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5
10:33:14
6
10:33:15
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10:33:20
8
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opinion of that would have been different at the
10:33:32
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time, the answer is no.
10:33:36
12
10:33:39
13
2005, you would have answered something the same or
10:33:45
14
consistent with what's in your declaration?
10:33:48
15
10:33:50
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presented with the same, with the same patent and
10:33:55
17
the same file history, I certainly would have
10:33:58
18
construed it the same way, yes.
10:34:03
19
Q.
In 2005, were you aware of Java applets?
10:34:06
20
A.
Yes.
10:34:07
21
Q.
Were you aware of any other types of
10:34:08
22
10:34:09
23
A.
Yes.
10:34:10
24
Q.
Which ones?
10:34:12
25
A.
At least the Flash, JavaScript, the --
617-542-0039
Q.
A.
Did you know people in the community for
I did not seek out anyone that I knew.
I
simply did general searches.
Q.
What was your understanding of an applet
in 2005?
A.
the term.
Q.
A.
The -- I don't recall being presented with
If you are asking me whether my -- my
So if you were asked to define applet in
I believe so, yes.
Certainly in terms of
applets?
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the -- I'm trying to think what -- there is a
10:34:33
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version JScript, I think is the Microsoft version of
10:34:36
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the JavaScript.
10:34:46
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6
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10:35:02
8
10:35:05
9
10:35:09
10
10:35:11
11
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13
deposition testimony that you included at Exhibit 3
10:35:28
14
of your declaration?
10:35:31
15
10:35:51
16
10:35:51
17
10:35:52
18
10:35:57
19
Q.
Did you review the full transcript?
10:35:59
20
A.
I'm sorry?
10:35:59
21
Q.
Did you review the full transcript?
10:36:01
22
A.
Yes.
10:36:24
23
Q.
Other than you said that counsel provided
10:36:25
24
you with the definition of applet that you have at
10:36:29
25
page 3, did any assumptions provided to you by
617-542-0039
The 2005 for certain, I think that's all I
can refer to.
Certainly I picked up the Ruby, I think
that was probably later.
Q.
In 2005, had you heard of applets in the
context of Qualcomm chipsets?
A.
I don't think I was aware of applets in
the context of Qualcomm chipsets at that time, no.
Q.
A.
Did counsel provide you the excerpts of
Let me see.
(Pause)
A.
In the sense that they provided me with
the entire deposition, yes.
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see in here that includes the phrase "I understand"
10:36:45
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is probably based on an assumption that's what --
10:36:54
5
that was given to me by the counsel concerning legal
10:36:58
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matters or procedural matters that I don't qualify
10:37:01
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to handle on my own.
10:37:06
8
10:37:11
9
10:37:13
10
A.
No.
10:37:16
11
Q.
Okay.
10:37:21
12
term "intrinsic evidence" with respect to claim
10:37:24
13
construction?
10:37:25
14
A.
Yes.
10:37:26
15
Q.
What's your understanding?
10:37:28
16
A.
My understanding of intrinsic evidence
10:37:30
17
concerning claim construction includes all material
10:37:34
18
on the face of the patent, and includes the entire
10:37:38
19
file history associated with the patent.
10:37:41
20
10:37:48
21
included by reference in the patent.
10:37:59
22
that's about it.
10:38:02
23
or two other items, but I think that's about it.
10:38:05
24
10:38:07
25
617-542-0039
counsel form the basis of any of your opinions?
A.
Q.
I think as I said, any paragraph that you
Did assumptions provided to you by counsel
form the basis of any of your technical opinions?
No.
Not at all.
Do you have an understanding of the
It can also include items that are
Q.
And I think
I think there -- there may be one
Is it your opinion that intrinsic evidence
supports Samsung's construction of the term
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Page 56
10:39:28
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10:39:37
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A.
Okay.
10:39:37
3
Q.
In your opinion, does the language of
10:39:39
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10:39:42
5
10:39:43
6
A.
Yes.
10:40:05
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Q.
How?
10:40:06
8
A.
Again, the term as used is a bare term
10:40:10
9
10:40:15
10
10:40:18
11
operating system independent because the claim does
10:40:22
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not explicitly limit the applet to operating system
10:40:25
13
independent.
10:40:27
14
10:40:32
15
10:40:34
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that the claim established.
10:40:37
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I said.
10:40:47
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Q.
10:40:49
19
understanding that in your opinion, the claim
10:40:55
20
supports that the applet need not be operating
10:40:58
21
system independent because the claim doesn't
10:41:01
22
explicitly say that the applet is operating system
10:41:04
23
independent.
10:41:05
24
10:41:12
25
617-542-0039
claim 1?
claim 1 support your definition of applet?
(Pause)
without any qualification.
Q.
So your opinion of an applet need not be
Correct?
A.
You asked me if the claim supported, not
The claim supports what
In and of itself it doesn't establish it.
Okay.
I just want to make sure I'm
Correct?
A.
Just standing by itself, the answer is
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10:41:21
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A.
Correct.
10:41:30
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Q.
So why do you include the term "small" in
10:41:32
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10:41:38
8
A.
I didn't.
10:41:43
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Q.
Do you believe that "small" is properly
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10:41:52
12
10:42:00
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consider the -- the term "small" in -- in -- in
10:42:17
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forming my opinion.
10:42:20
18
10:42:22
19
"small" is properly included in the definition of
10:42:24
20
applet?
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21
A.
No.
10:42:28
22
Q.
How would you define "small" in the
10:42:29
23
10:42:31
24
A.
I didn't.
10:42:36
25
Q.
Do you have in mind any definition of what
617-542-0039
yes.
Q.
Claim 1 doesn't say that the applet is
small.
Correct?
your definition if that's not in the claim?
included in the definition of applet?
A.
Hang on just a moment.
(Pause)
Q.
On page 3 of your declaration you have the
definition, if that helps.
A.
Q.
I'll just say that I didn't really
So you don't have an opinion as to whether
context of an applet?
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A.
No.
10:42:54
3
Q.
What do you think would be the
10:42:55
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understanding of someone of ordinary skill in the
10:42:57
5
art in 2005 as to the term "small" in the context of
10:43:03
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an applet?
10:43:05
7
A.
I don't know.
10:43:05
8
Q.
Okay.
10:43:15
9
10:43:23
10
10:43:26
11
A.
Correct.
10:43:29
12
Q.
But your definition of applet says that
10:43:33
13
the applet is designed to run within another
10:43:38
14
program.
10:43:38
15
10:43:39
16
A.
Yes.
10:43:40
17
Q.
So why do you refer to "program" in the
10:43:43
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10:43:48
19
10:43:52
20
not my -- my word.
10:43:55
21
as a -- something close to a synonym.
10:43:59
22
Q.
A synonym for what?
10:44:01
23
A.
Application.
10:44:07
24
Q.
And claim 1 says "an application module
10:44:11
25
617-542-0039
"small" would mean in the context of an applet?
Looking back at claim 1 in the '711
patent, the claim does not use the word "program."
Correct?
Right?
definition when the claim doesn't use that term?
A.
Again, I did not choose the word, so it's
I would assume that it's there
including at least one applet."
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Page 64
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specifically talking in the context of your
10:52:12
2
definition of applet as a small application designed
10:52:16
3
to run within another program.
10:52:18
4
A.
Uh-huh.
10:52:19
5
Q.
Does the answer you just gave apply to the
10:52:22
6
10:52:27
7
A.
Yes.
10:52:34
8
Q.
Is there anything else that the program
10:52:35
9
10:52:39
10
MR. BRIGGS:
10:52:41
11
THE WITNESS:
10:52:42
12
BY MS. WHELAN:
10:52:54
13
10:52:56
14
specification does not provide a definition of
10:52:59
15
applet.
10:53:00
16
10:53:02
17
10:53:05
18
the -- the applicant -- or the -- the inventor
10:53:09
19
provided his own lexicography for the term?
10:53:13
20
answer would be no, that he does not.
10:53:19
21
10:53:21
22
10:53:24
23
A.
Yes.
10:53:25
24
Q.
How?
10:53:26
25
A.
Again, it uses it as a bare term without
617-542-0039
program in that definition?
does with respect to the applet?
Q.
Objection, vague.
I don't know.
You agree that the '711 patent
Correct?
A.
Q.
Are you asking me whether the -- what
The
In your opinion, does the specification of
the '711 patent support your definition of applet?
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qualification.
10:53:34
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position, yes.
10:53:41
3
10:53:47
4
10:53:49
5
10:53:50
6
A.
Yes.
10:53:51
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Q.
So do you think it would be more precise
10:53:53
8
to say that the applet runs within an application
10:53:56
9
module rather than within a program?
10:54:02
10
10:54:06
11
certainly tracks the language of the patent more
10:54:10
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closely, yes.
10:54:27
13
10:54:29
14
history of the '711 patent prior to drafting your
10:54:33
15
declaration?
10:54:34
16
A.
I did.
10:54:35
17
Q.
Did you review the entire file history?
10:54:39
18
A.
I -- let's see.
10:54:43
19
the entire file history, but I only read closely the
10:54:47
20
office action.
10:54:51
21
fees and so forth in there.
10:54:55
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actions and the responses to the office actions.
10:55:01
23
10:55:03
24
the '711 patent support your interpretation of
10:55:06
25
applet?
617-542-0039
Q.
And I think that supports my
Now, the patent says that an application
module includes an applet.
Correct?
A.
Q.
Q.
Would it be more precise to say that?
It
Did you review the prosecution file
I -- yes.
I went through
I didn't read all of the forms and
I just read the office
In your opinion, does the file history of
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A.
Yes.
10:55:07
2
Q.
How?
10:55:08
3
A.
Again, the -- the -- the use of the term
10:55:12
4
in the file history is I think, if I remember
10:55:15
5
correctly, the same as the use of the term in the --
10:55:18
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in the claims of the patent.
10:55:21
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difference.
10:55:26
8
10:55:29
9
10:55:32
10
10:55:33
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A.
Yes.
10:55:34
12
Q.
In your opinion, does Kokubo support your
10:55:38
13
10:55:40
14
10:55:47
15
not so much significant as it is that the -- the
10:55:51
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office action taken in relation to Kokubo supports
10:55:55
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that, yes.
10:55:57
18
10:56:00
19
relation to Kokubo support your interpretation of
10:56:05
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applet?
10:56:05
21
A.
10:56:09
22
Kokubo was the inclusion of the term includes an
10:56:12
23
application module including at least one applet, if
10:56:14
24
I recall correctly, something very close to that, to
10:56:16
25
that language was added for purposes of
617-542-0039
Q.
So there is no
In your declaration you discuss a Kokubo
reference that was addressed in the file history.
Right?
interpretation of applet?
A.
Q.
I'm not sure how to -- Kokubo itself is
How does the office action taken in
The office action taken in relation to
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Page 68
10:58:10
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A.
Okay.
10:58:11
2
Q.
I just want to ask you why is what Kokubo
10:58:15
3
10:58:20
4
10:58:24
5
I looked at Kokubo enough to -- to determine that
10:58:29
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there is no mention of -- as far as I can tell that
10:58:33
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there is no mention of Java in the patent.
10:58:37
8
said, I don't think that there is a mention of
10:58:40
9
applets in the patent.
10:58:42
10
10:58:48
11
the term "applet," it was sufficient, I believe,
10:58:51
12
that Kokubo didn't include those terms that -- that
10:59:01
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like I say, it's not Kokubo itself that supports my
10:59:04
14
position, it's just that the distinction was
10:59:07
15
resolved through the phrase that was recommended by
10:59:09
16
the examiner, and that phrase is, once again, it's
10:59:13
17
the bare term "applet" without any qualification
10:59:16
18
whatsoever other than it's included in another
10:59:19
19
application -- included in an application module.
10:59:23
20
So I think that's sufficient to support
10:59:25
21
the -- the operating system dependent, independent
10:59:33
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definition.
10:59:35
23
10:59:37
24
statement one way or the other as to operating
10:59:39
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system independence?
617-542-0039
describes not an applet.
A.
Again, I am not exactly sure.
As I said,
As I
But for purposes of the construction of
Q.
Because the file history doesn't make a
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10:59:41
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10:59:43
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statement about it, the patent itself doesn't make
10:59:45
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any statement about it.
10:59:52
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qualification of the term, and I don't see any
10:59:55
5
reason to qualify it.
10:59:56
6
11:00:11
7
11:00:27
8
A.
Okay.
11:00:28
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Q.
And here you summarized some dictionary
11:00:31
10
definitions of applet that you provided in Exhibit 6
11:00:35
11
of your declaration.
11:00:36
12
11:00:37
13
A.
Yes.
11:00:40
14
Q.
And in point 5 of your summary, you say
11:00:43
15
"Applets are usually portable between operating
11:00:49
16
systems."
11:00:50
17
11:00:51
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11:00:53
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definition says.
11:00:57
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definitions, yes.
11:00:58
21
11:01:02
22
applets are usually portable between operating
11:01:04
23
systems?
11:01:04
24
11:01:06
25
617-542-0039
A.
Q.
Because the file history doesn't make any
Okay.
And yeah, there is no
Could we go to paragraph -- oops,
45 of your declaration?
It's page 13.
Correct?
Right?
A.
Q.
A.
That's not what I said.
That's what the
Or it's a common element of
And do you agree with that statement, that
It's not so much whether I agree with it,
it's just that yeah, I think that's a reasonable
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in 2005 would have understood applets are usually
11:01:21
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portable between operating systems?
11:01:23
5
MR. BRIGGS:
11:01:24
6
THE WITNESS:
11:01:25
7
used the word "commonly," but it's -- it's close
11:01:28
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enough, yes.
11:01:29
9
11:01:46
10
11:01:49
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11:01:51
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11:01:56
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they work the kinks out after the first two or three
11:01:58
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years, yes.
11:02:04
15
11:02:07
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11:02:18
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A.
Okay.
11:02:18
18
Q.
And here you describe what you believe are
11:02:20
19
certain exceptions to the rule of Java applets being
11:02:23
20
operating system independent.
11:02:26
21
11:02:26
22
A.
Yes.
11:02:28
23
Q.
How common are these exceptions?
11:02:30
24
A.
I think these are rare.
11:02:36
25
Q.
So would you agree that the default is for
617-542-0039
characterization of the term, yes.
Q.
So you agree that one skilled in the art
Objection, vague.
Again, I think I would have
BY MS. WHELAN:
Q.
Do you agree that Java applets are almost
always operating system independent?
A.
Q.
I think that's true, yes.
At least after
So could we just look in paragraph 63 and
64 of your declaration?
Is that correct?
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to be operating system independent.
11:02:46
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accomplished is another matter.
11:02:50
5
But again, I think it's commonly that's
11:02:52
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the intent, I would say it's almost certainly the
11:02:58
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intent, and Java applet -- in Java applet
11:03:04
8
development, yes.
11:03:16
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11:03:19
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11:03:27
11
A.
Okay.
11:03:27
12
Q.
And here you have a definition of applet
11:03:30
13
from Wiley's Electrical and Electronics Engineering
11:03:33
14
Dictionary.
11:03:35
15
11:03:35
16
A.
Yes.
11:03:40
17
Q.
And you provide the quote "A small program
11:03:44
18
typically written --" oh, wait.
11:03:51
19
the wrong paragraph.
11:03:54
20
11:03:57
21
within another program."
11:03:59
22
included within Wiley's in paragraph 43.
11:04:02
23
11:04:03
24
A.
Yes.
11:04:06
25
Q.
And you provided the Wiley's dictionary at
617-542-0039
Java applets to be operating system independent?
A.
Q.
I would say the default intent is for them
Okay.
Whether that's
I don't know.
Could we go back to paragraph 43 of
your declaration?
Correct?
Sorry.
Looking at
"A small application designed to run
That's the definition you
Correct?
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extract that's in the report or in the declaration
11:04:37
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comes from.
11:04:38
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11:04:42
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Wiley's dictionary is longer than what you included
11:04:45
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in paragraph 3 of your report?
11:04:47
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A.
That's correct.
11:04:48
9
Q.
Why didn't you include the additional
11:04:53
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language in Wiley's that says "Frequently it is
11:04:56
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downloaded over a network to be launched on a user's
11:05:00
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computer on a Web page, for example, it can provide
11:05:04
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video and/or audio effect or perform calculations"?
11:05:13
14
11:05:16
15
11:05:17
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Q.
Why not?
11:05:17
17
A.
Just because it doesn't say anything about
11:05:20
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11:05:28
19
11:05:29
20
"Frequently it is downloaded over a network to be
11:05:34
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launched on a user's computer on a Web page, for
11:05:37
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example, it can provide video and/or audio effects
11:05:41
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or perform calculations" suggests that an applet
11:05:45
24
frequently could be used in an operating system
11:05:48
25
independent context?
617-542-0039
Exhibit 5 of your declaration?
A.
Q.
A.
Yes.
That's where the -- that's where the
But the full definition of "applet" in the
I didn't think that was as significant to
the point at issue.
what we are talking about.
Q.
Would you agree that this language about
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A.
The statement I believe was made in 2000.
11:52:35
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Q.
Okay.
11:52:38
7
11:52:40
8
11:52:44
9
11:52:47
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believe that the reference 9 -- or I'm sorry, 7A is
11:52:55
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2004, in which case they are still going.
11:52:58
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it's -- if "soon" is shorter than four years, then
11:53:02
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the statement's incorrect.
11:53:12
14
11:53:14
15
11:53:16
16
Correct?
11:53:19
17
MR. BRIGGS:
11:53:24
18
THE WITNESS:
11:53:26
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processor?
11:53:31
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Ultimately at some level, yes.
11:53:39
21
I don't think that the applets are written in --
11:53:42
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even at the level of assembly code.
11:53:46
23
say that they are not written to the bare hardware.
11:53:50
24
So they run on a Windows operating system.
11:53:55
25
BY MS. WHELAN:
617-542-0039
A.
I don't agree or disagree with it.
It's
just a statement.
Q.
So you have no opinion as to whether that
statement is correct or not as of 2005?
So thank you for the correction.
So you have no opinion as to whether that
statement is correct or not as of 2000?
A.
Q.
Depending on what they mean by "soon," I
So
Microsoft control panel applets run
directly on the machine's processor.
Objection, vague.
Directly on the machine's
I don't know how to answer that.
I don't know that --
I would have to
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Q.
Are they interpreted?
11:54:02
2
A.
I don't know.
11:54:08
3
Q.
Just looking in Exhibit 7C, at the first
11:54:23
4
line of this first entry says "Here is how to run
11:54:28
5
control panel applets at the Run command level."
11:54:32
6
11:54:35
7
A.
I'm sorry?
11:54:36
8
Q.
Does that statement about "Here is how to
11:54:39
9
11:54:42
10
does that inform your answer as to whether control
11:54:48
11
panel applets run directly on the machine's
11:54:50
12
processor?
11:54:52
13
11:54:54
14
But you still have to develop the applet -- it runs
11:54:58
15
directly at the level of the operating system, if
11:55:01
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that's what you are asking.
11:55:02
17
11:55:06
18
from the operating system.
11:55:11
19
probably incorrect there.
11:55:17
20
11:55:19
21
11:55:22
22
11:55:27
23
trying to remember.
11:55:33
24
necessary part of the definition of the control
11:55:35
25
panel applet, no.
617-542-0039
Does that inform your answer?
run control panel applets at the Run command level,"
A.
Well, as I said, at some level they do.
But again, the processor is a bit removed
Q.
So "directly" I think is
Does the Microsoft control panel applet
run within another program?
A.
Does it run within another program?
I'm
I think that's -- that's not a
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A.
Do -- no, not directly.
11:56:04
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Q.
So do Microsoft control panel applets meet
11:56:07
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your definition of an applet as a small application
11:56:12
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designed to run within another program?
11:56:18
7
11:56:29
8
11:56:35
9
11:56:38
10
11:56:41
11
11:56:43
12
11:56:57
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11:56:59
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now referring to is outside the definition that's in
11:57:03
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your declaration.
11:57:04
16
11:57:05
17
11:57:06
18
definition is in part a rebuttal of the -- of the
11:57:12
19
Apple's definition which is a very restrictive, very
11:57:16
20
absolute -- I'm sorry, there is no very absolute, it
11:57:19
21
is an absolute position.
11:57:21
22
of that absolute position is a counter example.
11:57:23
23
11:57:24
24
11:57:27
25
617-542-0039
Q.
Do you know of any control panel applets
that run within another program?
A.
Not necessarily directly, no.
I should
add, though, that it does broaden the term "applet."
Q.
Broaden the term "applet" beyond the
definition that you provided in your declaration?
A.
It does broaden the term "applet" and that
they are obviously operating system dependent.
Q.
Okay.
But this broadening that you are
Correct?
A.
Well, you have to understand that my
And anything that gets off
This is a counter example.
Q.
Okay.
But it's a counter example that
falls outside of Samsung's proposed construction?
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about this to know whether any of these are
11:57:36
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included.
11:57:43
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they are not.
11:57:44
5
11:57:46
6
11:57:48
7
A.
No, I don't.
11:57:49
8
Q.
Okay.
11:58:22
9
11:58:24
10
gave in paragraph 52 to 57 of your declaration, are
11:58:30
11
all of those applets designed to run within an
11:58:34
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application?
11:58:38
13
A.
I don't know that they are.
11:58:43
14
Q.
Are they designed to run within other
11:58:45
15
11:58:47
16
A.
They may be.
11:58:59
17
Q.
In your opinion, what does it mean to run
11:59:01
18
11:59:05
19
11:59:06
20
earlier, that the phrase -- what is it, the phrase
11:59:13
21
in the patent is application module that includes at
11:59:18
22
least one applet.
11:59:19
23
Q.
Uh-huh.
11:59:20
24
A.
Was what we were discussing.
11:59:24
25
617-542-0039
A.
Q.
It can.
I am insufficiently knowledgeable
I just don't know.
So I didn't say that
I said I don't know.
Okay.
But you don't know of any Microsoft
control panel applet that --
Okay.
So putting aside the control
panel applets, looking at the other examples you
types of programs?
I don't know.
within another program?
A.
Generally I think we talked about that
The -- that -- that indicated that there
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was some -- some control of the initiation and
11:59:33
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perhaps the determination of the applet, and that
11:59:39
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there could be other -- there could be other sharing
11:59:44
4
of environment or sharing of control as well.
11:59:49
5
11:59:52
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was required.
11:59:55
7
would think that most likely there would be some
11:59:58
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form of control of the termination as well.
12:00:01
9
12:00:03
10
12:00:12
11
Q.
12:00:13
12
termination?
12:00:15
13
A.
12:00:18
14
in order to terminate itself properly needs to be
12:00:22
15
sure that all the applets that were launched within
12:00:24
16
it were themselves terminated.
12:00:49
17
12:00:50
18
bit.
12:00:56
19
we probably should just talk about the initiation
12:01:02
20
rather than the rest of it.
12:01:03
21
12:01:07
22
application designed to run within another program,"
12:01:10
23
the only requirement for running within another
12:01:13
24
program is to initiate within another program?
12:01:17
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617-542-0039
But that that -- that was about all that
Probably just the initiation, but I
I'm sorry, not necessarily control, but
some knowledge of the termination as well.
What do you mean by knowledge of the
That it's very likely that the application
Actually, let me back off of that a little
I think it's -- if we are going to limit this,
Q.
A.
So under your definition, "A small
The -- really, I -- really I haven't got a
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system?
12:03:16
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A.
12:03:21
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applets are described as "applets."
12:03:23
4
focused small utilities in that instance.
12:03:31
5
12:03:35
6
of the things we have talked about, they tend to be
12:03:37
7
very, very focused or limited in what they attempt
12:03:41
8
to do, what their responsibilities are, as opposed
12:03:47
9
to full blown applications which may be an entire
12:03:50
10
accounting system or an entire word processor or
12:03:53
11
something like that.
12:04:00
12
12:04:05
13
12:04:10
14
12:04:28
15
application designed to run within another program,
12:04:32
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can the program be an operating system?
12:04:43
17
12:04:45
18
don't know that that's the -- that that's the
12:04:50
19
construction that I would put on it for purposes of
12:04:52
20
the patent.
12:04:54
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not the part of the construction that I am concerned
12:04:58
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with or that I have been concerned with.
12:05:04
23
12:05:06
24
12:05:08
25
617-542-0039
I -- I -- the -- okay.
The Windows
They are
Other things identified as applets, most
The -- so that's -- that's basically the
distinction that I think is most common.
Q.
A.
Q.
And under your definition about running an
That is at least one use of the term.
I just don't know.
I
I haven't -- that's
So you are not sure of the bounds of the
word "program" in your definition?
A.
I didn't -- I did not explore those
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how you would distinguish in an applet, does the
12:05:28
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size matter in deciding whether something is an
12:05:31
5
applet?
12:05:34
6
A.
12:05:42
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term "small" earlier.
12:05:47
8
characterization, I would say.
12:05:50
9
12:05:55
10
that there is an easier bright line distinction
12:05:57
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between applications and applets.
12:06:03
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have a good answer for that.
12:06:15
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12:06:17
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12:06:20
15
12:06:22
16
MR. BRIGGS:
12:06:25
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THE WITNESS:
12:06:26
18
"small" is not an easily or sharply defined term for
12:06:37
19
the applet.
12:06:42
20
that pops into many immediate perceptions of what an
12:06:45
21
applet is.
12:06:47
22
12:06:50
23
could have an applet that is, for instance, much
12:06:53
24
larger than the application that it runs in?
12:06:57
25
would say that's certainly possible.
617-542-0039
bounds, no.
Q.
And what you were just discussing about
The -- I think we went over this with the
Again, that's the most common
But I don't think that that's a -- again,
Q.
The -- so I don't
So would you say "small" is not an
absolute requirement of an applet?
A.
The -Objection, vague.
I think I would say that
It -- it -- like I said, it's the word
But is it conceivable or possible that you
I
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Q.
So "small" is common, but not absolute?
12:07:05
3
A.
I would say that's true, yes.
12:07:26
4
Q.
Can someone skilled in the art tell by
12:07:28
5
examining a code that the program is running within
12:07:31
6
another program?
12:07:35
7
12:07:38
8
12:07:40
9
Q.
How can you tell?
12:07:44
10
A.
As I said, the application that includes
12:07:47
11
the applet has some responsibility for initiating
12:07:53
12
the operation of the applet.
12:08:05
13
12:08:09
14
inventor of the '711 patent support your
12:08:12
15
construction of the term "applet"?
12:08:16
16
12:08:20
17
12:08:21
18
Q.
How?
12:08:23
19
A.
If I remember correctly, the -- the
12:08:26
20
inventor testified that the applet that he developed
12:08:33
21
that was an embodiment of the -- of the patent was
12:08:40
22
restricted to the Qualcomm chipset and was not
12:08:45
23
operating system independent.
12:08:49
24
12:08:50
25
617-542-0039
BY MS. WHELAN:
A.
I think that if you examine the code of
both programs that you can tell, yes.
Q.
A.
In your opinion, does the testimony of the
As I recall from reading it, I believe it
does, yes.
Q.
Would a person of ordinary skill in the
art in 2005 have had access to the inventor's
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respecting the material that is -- that he developed
12:09:31
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that is an embodiment of the -- of the patent, it
12:09:36
7
would depend on whether that was published.
12:09:40
8
don't know whether it was published.
12:09:49
9
12:09:51
10
applets discussed in the context of Qualcomm
12:09:53
11
chipsets?
12:09:54
12
A.
Directly, not that I recall.
12:10:06
13
Q.
The '711 patent doesn't say anything about
12:10:08
14
12:10:10
15
12:10:11
16
12:10:14
17
12:10:28
18
12:10:29
19
understanding about the meaning of applet was
12:10:30
20
disclosed to the patent office?
12:10:39
21
12:10:47
22
I -- hmm.
12:10:57
23
it's not -- it's not a necessary condition, but I
12:11:01
24
believe that in this instance if I remember
12:11:04
25
correctly that the inventor would qualify as one of
617-542-0039
testimony?
A.
Not his testimony, because his testimony
didn't occur until 2011.
With respect to the material that is,
Q.
And I
Outside this case, have you ever heard of
Qualcomm chipsets.
Right?
A.
Again, just working off of memory, I don't
believe it does.
Q.
A.
Do you know if the inventor's
Whether this understanding was disclosed?
I would think that the -- that the -- and
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ordinary skill in the art.
12:11:15
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generic definition of applet would be disclosed,
12:11:19
3
yes.
12:11:24
4
12:11:25
5
12:11:28
6
12:11:31
7
your opinion the inventor's subjective understanding
12:11:36
8
of the term "applet" was in any way disclosed to the
12:11:40
9
patent office.
12:11:44
10
A.
I think the answer is I don't know.
12:11:49
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Q.
Can you point to anywhere in the file
12:11:51
12
12:11:57
13
12:12:00
14
chipsets are mentioned in the file history.
12:12:03
15
not sure about that.
12:12:08
16
Qualcomm may have been mentioned simply as the
12:12:13
17
assignee, but I don't know that -- that there is any
12:12:16
18
mention of the Qualcomm chipsets.
12:12:23
19
12:12:26
20
12:12:29
21
12:12:30
22
12:12:33
23
12:12:38
24
12:12:41
25
617-542-0039
And on that basis the
That's an interesting question.
I don't
think I have ever faced that before.
Q.
I guess what I want to know is whether in
history that talks about Qualcomm chipsets?
A.
Q.
I don't recall that it's -- that Qualcomm
Okay.
But I'm
The -- the connection with
And in your declaration, you also
refer to the inventor's development notes.
Correct?
A.
I think I referred to maybe one page of
the inventor's development notes.
Q.
In that -- why don't we look at that, at
Exhibit 4 of your declaration.
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A.
Okay.
12:13:05
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Q.
Would someone of ordinary skill in the art
12:13:06
3
12:13:08
4
A.
I don't know.
12:13:11
5
Q.
Were these notes shared with the patent
12:13:13
6
office?
12:13:17
7
A.
12:13:19
8
12:13:23
9
12:13:26
10
Exhibit 4 of your declaration whether any applets
12:13:32
11
are operating system independent or not?
12:13:36
12
12:13:38
13
12:13:50
14
12:13:52
15
12:13:53
16
THE REPORTER:
12:13:54
17
MS. WHELAN:
12:13:55
18
Exhibit 4 the declaration of Tony Givargis in
12:14:02
19
support of Apple's claim construction.
12:14:04
20
(Whereupon, Exhibit 4 was marked
12:14:04
21
for identification)
12:14:15
22
THE WITNESS:
12:14:20
23
THE REPORTER:
12:14:53
24
BY MS. WHELAN:
12:14:53
25
617-542-0039
in 2005 have had access to these notes?
I don't recall seeing the notes in the
file history.
Q.
But other than that, I don't know.
A.
Can you tell from this page of notes at
No, I can't tell from this whether they
are.
MS. WHELAN:
Okay.
I think are we on
Exhibit 4?
Q.
Yes.
Okay.
Going to mark as
Thank you.
You're welcome.
Do you recognize Exhibit 4?
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A.
Yes.
12:15:01
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Q.
And you reviewed Dr. Givargis' declaration
12:15:04
3
12:15:08
4
A.
Yes.
12:15:14
5
Q.
Okay.
12:15:17
6
6, The Technology Background?
12:15:22
7
paragraph 19 through paragraph 22.
12:15:28
8
A.
Okay.
12:15:28
9
Q.
Is there anything you disagree with in
12:15:30
10
12:15:45
11
12:15:46
12
12:16:23
13
12:16:25
14
12:16:43
15
12:16:45
16
declaration if there is anything else on which you
12:16:49
17
agree with Dr. Givargis?
12:16:53
18
A.
I -- off the top of my head, no.
12:17:04
19
Q.
Okay.
12:17:12
20
going through paragraph 54 on page 13, Dr. Givargis
12:17:19
21
discusses a number of references.
12:17:32
22
A.
Yes.
12:17:32
23
Q.
I think you said earlier that you reviewed
12:17:34
24
these descriptions, but you didn't review the
12:17:37
25
complete references?
617-542-0039
in preparing your own declaration?
Could you turn to page 4, section
And this covers
this section of Dr. Givargis' declaration?
A.
Give me a second.
(Pause)
A.
I think the statements as far as they go
are -- yes, they seem to be accurate.
Q.
Do you recall from your review of the
In paragraph 42 on page 10 and
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