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

Filing 996

Administrative Motion to File Under Seal Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike Expert Testimony filed by Apple Inc.. (Attachments: #1 Declaration Of Cyndi Wheeler In Support Of Apples Administrative Motion To File Under Seal Documents Re Apples Opposition To Samsungs Motion To Strike Expert Testimony, #2 Declaration Of Mia Mazza In Support Of Apples Administrative Motion To File Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike Expert Testimony, #3 [Proposed] Order Granting Apples Administrative Motion To File Documents Under Seal Re Apples Opposition To Samsungs Motion To Strike, #4 Apples Opposition To Samsungs Motion To Strike Expert Testimony Based On Undisclosed Facts And Theories, #5 Declaration Of Marc J. Pernick In Support Of Apples Opposition To Samsungs Motion To Strike Expert Testimony Based On Undisclosed Facts And Theories, #6 Exhibit Pernick Decl. Ex. 8, #7 Exhibit Pernick Decl. Ex. 10, #8 Exhibit Pernick Decl. Ex. 11, #9 Exhibit Pernick Decl. Ex. 12, #10 Exhibit Pernick Decl. Ex. 16, #11 Exhibit Pernick Decl. Ex. 17, #12 Exhibit Pernick Decl. Ex. 19, #13 Declaration Of Michel Maharbiz, Ph.D. In Support Of Apples Opposition To Samsungs Motion To Strike Expert Testimony, #14 Exhibit Maharbiz Decl. Ex. A, #15 Exhibit Maharbiz Decl. Ex. B, #16 [Proposed] Order Denying Samsungs Motion To Strike Expert Testimony (Dkt. No. 936))(Jacobs, Michael) (Filed on 5/31/2012) Modified on 6/3/2012 pursuant to General Order No. 62, attachment #1 and #2 Sealed (dhm, COURT STAFF).

Exhibit 12

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

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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.
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Civil Action No.
11-CV-01846-LHK

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
TSG Reporting - Worldwide

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April 23, 2012
9:11 a.m.
Videotaped Deposition of Expert
TONY D. GIVARGIS, PH.D., held at the
offices of Quinn Emanuel, 865 So. Figueroa
Street, 10th Floor, Los Angeles, California,
before Jeanese Johnson, CSR No. 11635,
Certified LiveNote Reporter, of the State
of California.

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

WILMERHALE
Attorneys for Plaintiff
399 Park Avenue
New York, New York 10022
BY: VICTOR F. SOUTO, ESQ.
ALI H. SHAH, PH.D.
QUINN EMANUEL URQUHART & SULLIVAN
Attorneys for Defendant
555 Twin Dolphin Drive
Redwood Shores, California 94065
BY: VICTORIA F. MAROULIS, ESQ.
KENNETH K. SUH, ESQ.

ALSO PRESENT:
COURTNEY BATES, Legal Video Specialist

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THE VIDEOGRAPHER: Good morning.
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The time on the record is 9:11 a.m.
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Today's date is April the 23rd of 2012.
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This marks the beginning of Disc No. 1 of the
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videotaped deposition of Tony D. Givargis in the
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matter of Apple, Inc. Versus Samsung Electronics
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Company Limited; Case No. 11-CV-01846-LHK.
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This deposition is being held today at
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865 South Figueroa Street on the 10th floor in Los
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Angeles, California. My name is Courtney Bates, and 14
I'm here from TSG Reporting, Inc., and I'm the legal
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video specialist. I'm here with our court reporter,
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Jeanese Johnson, also with TSG.
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At this time, will counsel please give
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your appearances for the record.
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MS. MAROULIS: Victoria Maroulis with
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Quinn Emanuel, counsel for Samsung. And with me 21
is Mr. Ken Suh also of Quinn Emanuel, counsel for
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Samsung.
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MR. SOUTO: Vick Souto of Wilmer
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Hale, counsel for Apple. And with me -- and the
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- o0o -

TSG Reporting - Worldwide

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witness is -- and with me is Ali Shah, also of
Wilmer Hale.
THE VIDEOGRAPHER: Thank you.
And the reporter may now swear or
affirm the witness.
THE COURT REPORTER: Please raise
your right hand.
Do you solemnly state the testimony
you will give during this deposition proceeding
will be the truth, the whole truth, and nothing
but the truth?
THE WITNESS: Yes.
THE COURT REPORTER: Thank you.
EXAMINATION
MS. MAROULIS:
Q. Good morning, Mr. Givargis. How are
you today?
A. Good. Thanks. Good morning.
Q. Can you please state your full name
for the record.
A. Yes. My full name is Tony Degaolous
Givargis, G-I-V-A-R-G-I-S.
Q. Can you please state your home
address.

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Q. But you don't have any evidence that
this refers to mobile devices as such?
A. But the Wong reference specifically
talks about mobile devices as being such
computers.
And so my understanding of reading
that is that a mobile device is included in that
term "computer."
Q. Does term "server," in the next
sentence, suggest to you that this is in the
context of a computer and not a mobile phone?
A. As I said, the server, a desktop, a
laptop, a mobile phone, they are all computers of
sort. They are all computing devices and perform
Java instructions, and they can accommodate the
Java virtual machine.
Q. Again, in that sentence, though,
there's no specific reference to the mobile
phone; is that right?
MR. SOUTO: Objection to form.
THE WITNESS: The patent is very
specific in -- in -- in summarizing in its
summary and motivation, it does specifically talk
about mobile devices. It -- it -- this patent
is, indeed, very much applicable to mobile

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devices. It's part of the premise of the work is
mobile devices.
Q. Can you please turn to Column 8 and
look at lines 12 through 18.
It states: "In some
embodiment from the present
portions of the mobile Java
multi-media framework module, such as
the KODAK 306, can bypass the JVM
208 and interface, directly, the
native operating system."
Do you see that?
A. Correct.
Q. Does that suggest to you that that
Java application can run directly on that
operating system?
A. No, they cannot.
Q. Why not?
A. The Java applications, at all times,
would require an interpreter.
When the Java application makes a
META call, or when it calls some of the source
code of this particular framework, that -- the
implementation of that source code can bypass the
JVM for the purpose of resource efficiency or

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for -- for being able to be more efficient, can
bypass the JVM and go directly to the operating
system?
MS. MAROULIS: Why don't we take a
lunch break. I might have one or two more
questions on Wong, but I don't want to starve the
witness.
MR. SOUTO: Thank you.
THE VIDEOGRAPHER: The time is
12:41 p.m., and we are off the record.
***
(Luncheon Recess)
***
THE VIDEOGRAPHER: The time is
1:30 p.m. and we are back on the record.
MS. MAROULIS:
Q. Dr. Givargis, before the break, we
were discussing the Wong reference.
Do you remember that?
A. Yes.
Q. I have a last question for you.
Do you agree that whoever drafted the
patent understood the difference between Java
Applets and Java application?
MR. SOUTO: Objection to form.

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TSG Reporting - Worldwide

THE WITNESS: I don't know what -what the person drafting this knew, specifically,
about those two exam -- those two technologies.
Q. And they use the two words
differently in the patent.
In other words, some portions of the
patent refer to "entities" and other portions to
the "application;" correct?
A. My understanding is that the term
"application," as used in this patent, is
consistent with it being an Applet or a Java
application.
Q. Nonetheless, there were portions of
this patent that only refer to applications and
not Applets, and there are other portions where
they refer to them?
A. In all those cases, the reference to
an application for an Applet was, to me, an
either/or. Both of them, equally, would serve
the purpose.
Q. You can set the one reference aside.
(Exhibit 12, an article entitled
The J2ME Mobile Media API, is marked
by the Deposition Officer)
Please turn your attention to

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Exhibit 12, in front of you.
A. Okay.
Q. Do you recognize Exhibit 12 as the
article by Mahmoud that is referenced in your
report?
A. Yes.
Q. You cite this article for the
proposition paragraph 127 that something called
midlets is a form of Applet; is that correct?
A. Yes.
Q. And for a definition of midlet, you
are relying on a Java tutorial, also referenced
in your report; is that right?
A. No.
Q. What are you relying on in your
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
brought up midlets in your first report in the
claim construction phase of this case?
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.
Q. To the extent you reviewed the
Court's Claim Construction Order that we
previously marked as exhibit -- an exhibit today,
you did not see any reference to midlets;
correct?
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.
A. Okay.
Q. And I'm just asking if you have a
different recollection.
Let's mark another exhibit as
Exhibit 13.
(Exhibit 13, an article entitled.
Introduction Tools Application
Development, is marked by the
Deposition Officer)
MR. SOUTO: Thank you.
Q. 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.
MR. SOUTO: Are you withdrawing it as
an exhibit?
MS. MAROULIS: I am. There might be
some confusion because I understood this to be
something he's relying on. But if he's not, I'll
take it back.
MR. SOUTO: Okay. Well, okay. I'm
going to give you back all of the exhibits.
Thank you.
Q. Okay. Let's get back to the Mahmoud
article.
Do you see, in this first statement
of the -- the first sentence of the abstract, it
says: "The Mobile Media API is an optional
package that supports multimedia application on
J2ME enabled devices."
A. Yes, that's what it said.
Q. Does it suggest to you that this
feature is optional, it does not always appear in
the phone?
A. The MMAPI is a framework that would
need to be -- to be incorporated into an
environment, yeah.
Q. Do you have any evidence whether the

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TSG Reporting - Worldwide

prior art phones, on which you are relying for
your analysis, have this optional feature?
A. Based on the record, my analysis and
review of the phones, they do have the Mobile
Media API.
Q. Do you indicate that anywhere in your
report?
A. Which one of the phones are you
specifically...
Q. Any of the phones that you analyzed.
A. Yes.
Q. Can you point me to where you cite to
evidence that these phones have the particular
features referenced in the Mahmoud article?
A. In paragraph 97 of my report, I do
write: "The K700i incorporates the Java ME
environment, including the Mobile Media API."
Q. How do you know that this phone
incorporates the Mobile Media API?
A. Based on my review and analysis of
the phone.
Q. Is that review and analysis reflected
anywhere in the report or in the attachments?
A. In the form that I just referenced.
Q. This is the only reference in your

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report to the Mobile Media API?
A. I don't know. There may be other
ones. I can search for this.
Q. You're not presenting your report,
the evidence of this API, actually being in the
phone somewhere where I can point to in the
report; correct?
MR. SOUTO: Objection to form.
THE WITNESS: Based on my -- my
knowledge and understanding of the K700i, it does
support the Mobile Media API.
Q. Other than your inference from
reviewing the phone, we don't have any place in
your report to confirm or disprove that
statement; is that right?
MR. SOUTO: Objection to form.
THE WITNESS: This -- this analysis
-- this conclusion is based on my understanding
and knowledge about the K700i phone.
Q. But we don't have any documentary
evidence in the form of snapshots, source code or
specifications to confirm that; correct?
A. I do not know. I -- I would need to
look at the K700i manual.
Q. Okay. I'm going to hand you back the

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exhibit that I confiscated because I found where
it appears in your report.
A. I see.
Q. Please take a look at paragraph 127
of your report and let me know if you recognize
Exhibit 13.
MR. SOUTO: Just note for the record
it looks like there may be Bates numbers on here
that may be cut off on the copy.
MS. MAROULIS: Yes. My copy has the
Bates number, it's APLNDCWHA00002500 through
25006, which matches the citation in the
witness's report. I'll provide a replacement
copy after the deposition.
MR. SOUTO: Okay.
THE WITNESS: Yes, that's right.
Yes.
Q. Okay. So you rely on this document,
which is entitled J2ME Tutorial in paragraph 127
of your report; correct?
A. Yes.
Q. To your knowledge, this tutorial was
not disclosed in the invalidity contention that
we looked at earlier today?
A. To my knowledge, it was not.
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Q. When did you locate this document?
A. "When" as in what time?
Q. Yes.
A. I do not know the exact date.
Q. What is the source of this document?
A. The document is -- there is a link to
it, at the very bottom, uberthings.com/mobile.
Q. What is uberthings.com/mobile?
A. It's a website.
Q. Is it a credible source of obtaining
information?
A. Yes. In my understanding, it's a
credible source for this information.
Q. Who maintains this website?
A. I don't know.
Q. Did you use this website as part of
your regular professional activities?
A. I have referred to it to look up
things about Java, yes.
Q. How frequently is this website
updated, to your knowledge?
A. I do not know.
Q. On the top of the document, it
states: "Sends any comments/suggestions to
Michael at uberthings.com;" do you see that?

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TSG Reporting - Worldwide

A. Yes.
Q. Do you know who Michael is?
A. I do not know him, personally, no.
Q. Do you know whether Michael has any
background or experience in programming?
A. I believe he does.
Q. What is the basis of your belief?
A. He has produced this document, which
is consistent with my knowledge of Java midlets
and Applets.
Q. Do you know Michael's last name?
A. I do not know Michael.
Q. Do you believe this is a website or
publication that is peer-reviewed, in any way?
A. I do not know if it -- if this site
is peer-reviewed.
Q. Okay. Please turn to the third page
of the document, which has production range
A000025002.
Do you see -MR. SOUTO: That is page 3 of 7
because we don't have the production.
MS. MAROULIS: It's page 3 of 7;
correct.
MR. SOUTO: Okay.

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