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

Filing 974

Declaration of Cyndi Wheeler in Support of #934 Administrative Motion to File Under Seal Re Samsungs Motion To Strike Expert Testimony filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Declaration Of Mark D. Selwyn In Support Of Samsungs Administrative Motion To File Documents Under Seal Re Samsungs Motion To Strike Expert Testimony, #14 Selwyn Decl. Ex. 1, #15 Selwyn Decl. Ex. 2, #16 Proposed Order [Proposed] Order Granting Samsungs Administrative Motion To File Documents Under Seal Re Samsungs Motion To Strike Expert Testimony)(Related document(s) #934 ) (Bartlett, Jason) (Filed on 5/24/2012)

Exhibit 4

EXHIBIT O
FILED UNDER SEAL

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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APPLE INC., a California
corporation,

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Plaintiffs,
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Vs.

Civil Action No.
11-CV-01846-LHK

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SAMSUNG ELECTRONICS CO.,
LTD., a Korean business
entity, SAMSUNG ELECTRONICS
AMERICA, INC., a New York
corporation and SAMSUNG
TELECOMMUNICATIONS AMERICA
LLC, a Delaware limited

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Defendants.
~~~~~~~~~~~~~~~~~~~~~~~~~~
AND RELATED CROSS ACTIONS.
__________________________

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**Highly Confidential - Attorney's Eyes Only**
VIDEOTAPED DEPOSITION OF EXPERT
TONY D. GIVARGIS, PH.D.
Los Angeles, California
Monday, April 23, 2012

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Reported By:
Jeanese Johnson, CSR No. 11635, CLR
Job No. 48793
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April 23, 2012

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9:11 a.m.

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Videotaped Deposition of Expert
TONY D. GIVARGIS, PH.D., held at the

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offices of Quinn Emanuel, 865 So. Figueroa

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Street, 10th Floor, Los Angeles, California,

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before Jeanese Johnson, CSR No. 11635,

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Certified LiveNote Reporter, of the State

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of California.

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A P P E A R A N C E S:

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WILMERHALE

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Attorneys for Plaintiff

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399 Park Avenue

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New York, New York

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BY:

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10022

VICTOR F. SOUTO, ESQ.
ALI H. SHAH, PH.D.

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QUINN EMANUEL URQUHART & SULLIVAN

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Attorneys for Defendant

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555 Twin Dolphin Drive

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Redwood Shores, California

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BY:

94065

VICTORIA F. MAROULIS, ESQ.
KENNETH K. SUH, ESQ.

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ALSO PRESENT:

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COURTNEY BATES, Legal Video Specialist

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Exhibit 12, in front of you.

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A.

Okay.

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Q.

Do you recognize Exhibit 12 as the

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article by Mahmoud that is referenced in your

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report?

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A.

Yes.

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Q.

You cite this article for the

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proposition paragraph 127 that something called

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midlets is a form of Applet; is that correct?

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A.

Yes.

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Q.

And for a definition of midlet, you

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are relying on a Java tutorial, also referenced

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in your report; is that right?

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A.

No.

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Q.

What are you relying on in your

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report, with respect to the definition of midlet?
A.

I also rely on my own knowledge and

understanding of -- of midlet is.
Q.

Isn't it correct, sir, that you never

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brought up midlets in your first report in the

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claim construction phase of this case?

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A.

That is correct.

I did not discuss

midlets.
Q.

And the Court did not discuss midlets

as part of its Claim Construction Order?
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A.

I -- I don't know.

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Q.

To the extent you reviewed the

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Court's Claim Construction Order that we

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previously marked as exhibit -- an exhibit today,

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you did not see any reference to midlets;

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correct?

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A.

I do not recall seeing a reference to

midlet, but if you want me to...
Q.

I'll represent to you that it

doesn't.

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A.

Okay.

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Q.

And I'm just asking if you have a

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different recollection.

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Let's mark another exhibit as
Exhibit 13.

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(Exhibit 13, an article entitled.

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Introduction Tools Application

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Development, is marked by the

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Deposition Officer)

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MR. SOUTO:

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Q.

Thank you.

Dr. Givargis, do you recognize

Exhibit 13?
A.

No, I do not recognize it as being

something I have seen before.
Q.

I'll take it back from you, if you
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don't recognize it.

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MR. SOUTO:

Are you withdrawing it as

an exhibit?

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MS. MAROULIS:

I am.

There might be

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some confusion because I understood this to be

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something he's relying on.

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take it back.

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MR. SOUTO:

Okay.

Well, okay.

I'm

going to give you back all of the exhibits.
Thank you.

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But if he's not, I'll

Q.

Okay.

Let's get back to the Mahmoud

article.

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Do you see, in this first statement

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of the -- the first sentence of the abstract, it

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says:

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package that supports multimedia application on

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J2ME enabled devices."

"The Mobile Media API is an optional

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A.

Yes, that's what it said.

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Q.

Does it suggest to you that this

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feature is optional, it does not always appear in

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the phone?

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A.

The MMAPI is a framework that would

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need to be -- to be incorporated into an

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environment, yeah.

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Q.

Do you have any evidence whether the
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edition of Java, will have those -- those code

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repositories pre-installed.

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Q.

I'm sorry.

You mentioned the

"repository."

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What is the repository?

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A.

The imports.

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Q.

Um-hmm.

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A.

Are importing a number of classes

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that are part of the Micro Edition.

And the word

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"Micro Edition" occurs in the full name of these

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classes.

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Micro Edition, JME or J2ME, would have these

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libraries of, say, pre-installed.

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And any phone equipped with a Java

Q.

When you import these items, does it

give you access to the module?

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A.

What do you mean by "module"?

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Q.

Module or a group of files.

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A.

This particular statement give us

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access to the classes that are part of the

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framework.

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Q.

Are these four lines of code part of

the MMA -- MMAPI?

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A.

Yes.

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Q.

You opined in your report that taking

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the code from the Mahmoud Article 1 could convert
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the code samples into an Applet; is that right?
A.

The code in Mahmoud is a midlet,

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which we've -- which I defined to be consistent

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with an Applet.

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Q.

Are you opining that one can take the

code and design an Applet, using that code?
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This code listing is the entire code

listing for a player Applet.
Q.

What makes you think that the person

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applying that code can take that code and design

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an Applet and a phone -- a mobile phone?

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A.

A person of ordinary skill will be

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familiar with Applets, will be familiar with

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Java, and will be able to use this code as-is to

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play music on a mobile phone.

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Q.

Would the person need to make any

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modifications before a mobile phone could support

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Java Applet?

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A.

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question.

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Q.

I believe -- I didn't understand the

Would a person of ordinary skill need

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to modify this code before putting in the phone

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in order to use the Java Applets?

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A.

The code is a complete player midlet

Applet.
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A phone equipped with the MMAPI will
support execution of this program.
Q.

And again, we don't see anywhere in

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your report whether the prior art devices you

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reviewed and analyzed for your report have or can

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support an MMPI; correct?

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MR. SOUTO:

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THE WITNESS:

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Objection to form.
That is incorrect.

I

-- I state in my report whether the devices do

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support Java.

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well as the mobile MMAPI.

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Q.

That is the Java Micro Edition, as

Other than that one statement in your

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report, that didn't have any citation.

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didn't have any evidence in your report that

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these phones could support such code.

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MR. SOUTO:

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THE WITNESS:

You

Objection to form.
The statement that I

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have in my report, my understanding and knowledge

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in how these phones operate and that they do

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incorporate these technology.

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Q.

But again, without any citation to

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references, authorities, articles or patents;

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correct?

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A.

I have no citation next to the

statement in the record, but I -- as I said
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earlier, would I need to review all of the

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citations that were included as part of my report

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to -- to answer that question, exactly.

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Q.

The Mahmoud code, or what purports to

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be code in this article, is for a midlet not an

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Applet; is that correct?

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A.

The Mahmoud code example -- and is

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specifically about a midlet -- and in my report

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clarify that MIDlets are Applets.

They are very

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similar to Applet's, with the only restriction

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being that of the amount of privileges or access

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to resource.

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Q.

And again, in your declaration in

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support of claim construction proceedings, and

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your deposition in connection with that

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declaration, you never brought up a term midlet;

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right?

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MR. SOUTO:

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THE WITNESS:

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Objection to form.
No, I did not discuss

MIDlets, at that time, in that report.
Q.

You can set this document aside.

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(Exhibit 14, United States Patent No.

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6,526,041 is marked by the Deposition

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Officer)
THE WITNESS:

Thank you.

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Q.

Yes.

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Q.

Did you review, in preparation of

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your report, Apple's responses to

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non-Infringement Interrogatories?

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A.

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May I see the document to...
(Exhibit 24, Apple Inc.'s

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Supplemental Objections and Responses

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to Samsung's First Set of

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Interrogatories, is marked by the

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Deposition Officer)

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Q.

Exhibit 24 identification.

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I'm handing you what's been marked as

If you please turn to page 20 of this
document.

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Are you there?

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A.

Yes.

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Q.

Do you recognize this document as

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Apple's response to Samsung's Interrogatory

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regarding its non-infringement contentions?

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A.

Yes.

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Q.

On -- have you seen it before?
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A.

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Just one second.
I believe I may have seen this --

reviewed it before, yes.

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Q.

In preparing your report on

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non-infringement, did you examine Apple's user

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guide?

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A.

Which Apple user guides?

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Q.

Any Apple user guides.

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A.

I am -- I carefully reviewed the

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audio session programming guide from Apple.

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also reviewed the iPhone app programming guide

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from Apple, and the AV foundation programming

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information guide from Apple.

I

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(Exhibit 25, iPhone User Guide, is

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marked by the Deposition Officer)

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Q.

I'm going to hand you what's been
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