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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any of the message boards you relied on for your

10:32:49

3

applet references?

10:32:51

4

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5

10:33:14

6

10:33:15

7

10:33:20

8

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9

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10

opinion of that would have been different at the

10:33:32

11

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

16

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

3

the JavaScript.

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4

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5

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6

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7

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8

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9

10:35:09

10

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12

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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

6

matters or procedural matters that I don't qualify

10:37:01

7

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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10:39:37

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A.

Okay.

10:39:37

3

Q.

In your opinion, does the language of

10:39:39

4

10:39:42

5

10:39:43

6

A.

Yes.

10:40:05

7

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

12

not explicitly limit the applet to operating system

10:40:25

13

independent.

10:40:27

14

10:40:32

15

10:40:34

16

that the claim established.

10:40:37

17

I said.

10:40:47

18

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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A.

Correct.

10:41:30

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Q.

So why do you include the term "small" in

10:41:32

7

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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11

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12

10:42:00

13

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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

4

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

6

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

18

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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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.

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position, yes.

10:53:41

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10:53:47

4

10:53:49

5

10:53:50

6

A.

Yes.

10:53:51

7

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

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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

16

office action taken in relation to Kokubo supports

10:55:55

17

that, yes.

10:55:57

18

10:56:00

19

relation to Kokubo support your interpretation of

10:56:05

20

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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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

6

there is no mention of -- as far as I can tell that

10:58:33

7

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

13

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

25

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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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

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"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

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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

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used the word "commonly," but it's -- it's close

11:01:28

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enough, yes.

11:01:29

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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

17

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

6

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

9

11:03:19

10

11:03:27

11

A.

Okay.

11:03:27

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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

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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

8

A.

That's correct.

11:04:48

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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

12

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

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11:05:17

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Q.

Why not?

11:05:17

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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

21

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

23

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

6

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

11

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

13

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

19

processor?

11:53:31

20

Ultimately at some level, yes.

11:53:39

21

I don't think that the applets are written in --

11:53:42

22

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

16

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

5

your definition of an applet as a small application

11:56:12

6

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

13

11:56:59

14

now referring to is outside the definition that's in

11:57:03

15

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

4

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

12

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

6

was required.

11:59:55

7

would think that most likely there would be some

11:59:58

8

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

25

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

16

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

21

not the part of the construction that I am concerned

12:04:58

22

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

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characterization, I would say.

12:05:50

9

12:05:55

10

that there is an easier bright line distinction

12:05:57

11

between applications and applets.

12:06:03

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have a good answer for that.

12:06:15

13

12:06:17

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12:06:20

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12:06:22

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MR. BRIGGS:

12:06:25

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THE WITNESS:

12:06:26

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"small" is not an easily or sharply defined term for

12:06:37

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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

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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

6

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

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12:12:38

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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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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.

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6

6, The Technology Background?

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paragraph 19 through paragraph 22.

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A.

Okay.

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9

Q.

Is there anything you disagree with in

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10

12:15:45

11

12:15:46

12

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13

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14

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declaration if there is anything else on which you

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agree with Dr. Givargis?

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A.

I -- off the top of my head, no.

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Q.

Okay.

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going through paragraph 54 on page 13, Dr. Givargis

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discusses a number of references.

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A.

Yes.

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Q.

I think you said earlier that you reviewed

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these descriptions, but you didn't review the

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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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