AdvanceMe Inc v. RapidPay LLC

Filing 117

CLAIM CONSTRUCTION BRIEF filed by First Funds, LLC, Merchant Money Tree, Inc., Reach Financial, LLC. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Gray, Joseph)

AdvanceMe Inc v. RapidPay LLC

Doc. 117 Att. 8

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EXHIBIT H

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Deposition of BARBARA S. JOHNSON, held at the offices of Vinson & Elkins, 666 Fifth Avenue, New York, New York, before Laurie A. Collins, a Registered Professional Reporter and Notary Public of the State of New York. June 28, 2006 9:06 a.m. ADVANCEME, INC., Plaintiff, vs. RAPIDPAY LLC, Defendant. ------------------------ADVANCEME, INC., Plaintiff, vs. AMERIMERCHANT, LLC, Defendant. ------------------------) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION

No. 6:05-cv-00424

------------------

No. 6:06-cv-00082

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Yes.

Johnson

Were you aware of that amendment made

in July '04 before today? MR. LEMIEUX: Objection. I -- I

Am I aware of that amendment?

didn't know what form it was in. this change in language.

I was aware of

So I just don't know

exactly -- I didn't know it was an amendment -- I didn't specifically know where it -- in what form it was in, is the best way. Q. Are you saying you knew in July of 2004

that the language was being changed, or when did you know? A. I'm not specifically sure when I knew, Sorry.

but I'm aware of it. Q. language? A. Q. A. Q. A. Q.

Whose idea was it to change the

I believe it was the attorney's. Who was -Again, I'm actually guessing. But it wasn't your idea? No, no. So you understand from this paragraph

common to pages 5 and 6 that applicant has

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q.

Johnson replaced the term "loan" in the claims with the more generic term "obligation." So you understand

that "obligation" is a generic term that encompasses loan as a species? A. Q. A. Q. Yes. Is that your understanding? Yes. It goes on to say, Since many

obligations for payment that may use a system at present are not necessarily loans. Then it goes on to say, For example, if a merchant assigns its receivables to a third party, these could be collected by the third party using the system of the invention. As such the

term "lender" has been replaced by third party." Do you see that? Yes. So is it your understanding that "third

party" is a generic term that encompasses "lender"? A. Q. Yes. Do you have any basis for -- do you

know -- do you have any knowledge as to why these claims were changed in 2004?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1997. A. A. Q. A.

Johnson If I can go back a little bit. I think

I used the word "loan" very often in the early days of the concept, and I used that word I think loosely, meaning obligation, leaning loan, just -I used it as a nontechnical term. And I think over time there -- the advice from our legal people was that it needed more of a -- more of a description, more of a definition. Q. So this arose in 2004? MR. LEMIEUX: Objection.

But I'm not positive on the date but... Your original application was filed in This is seven years later. So I think as the -- I don't

specifically know why this time was chosen to change it or when the first concept of coming to change the words or alter them was, but I was on some level aware of a discussion about "loan" and "obligation." Q. discussion? A. I really don't know. I assume prior to At what time were you aware of that

this, but I don't know.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.

Johnson Who was that discussion with? It was with my husband coming from the

legal -- from the attorneys. Q. A. Q. A. And who were the attorneys in 2004? I don't -- I don't know. Did you know any of them? No, not permanently. At this point the

company was handling... Q. So apart from Tosti that you

mentioned -- I think -- was it Tosti? A. Q. Yeah. Did you ever meet any other attorneys

or talk to any other attorneys? A. Q. No. In fact, you didn't talk to Tosti

either; you said you just spoke to Paula Campbell? A. Q. Yeah. You didn't meet or talk to any of the

attorneys handling the application -A. Q. A. Q. No. -- after you spoke to Paula Campbell? No, personally, no. This document, if you turn to page 6, Did you ever know

it's signed by David Klein.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. AFTERNOON (Time noted: SESSION 1:20 p.m.) We're now going on

THE VIDEOGRAPHER:

the record approximately 1:20 p.m. BARBARA S. JOHNSON,

resumed and testified further as follows: EXAMINATION CONTINUED BY MR. SCHUURMAN: Q. Mrs. Johnson, in your '281 patent,

there are no examples other than examples of loans and lenders; is that correct? MR. LEMIEUX: Objection.

I'm not totally aware of all that's

included in here. Q. Are you aware of any reference in your

patent to anything like an obligation or like an obligation to a third party? MR. LEMIEUX: Objection.

I'm not totally aware of what's written

throughout this whole document. Q. So do you know -MR. LEMIEUX: Other than claim

language, you're asking her? Q. You don't know?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.

Johnson MR. LEMIEUX: Objection.

Is that what you're saying? I'm saying -- yes, I'm saying I don't

know where in the document. Q. Coming back to Column 1, we ended with

this just before the break, and you -- did you think about it at lunchtime? A. While I'm not totally comfortable using

the language in the document, since it is prepared by an attorney and I'm not that familiar with all the language, I think the simple question you're asking me out of all of that, if I'm correct, is that could the processor be separate entities, could they be the same or separate entities. that what you're asking me? Q. No, my question is in Column 1 your Is

patent says the merchant processor and the lender can be the same. A. So I guess what I'm saying is I -- that

is part of the patent claim. Q. Okay. So my follow-up question was can

the merchant processor and the third party be the same. A. I think that's all part of what's in

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. patent? A. Q. through 42. Yes. the patent, yes. Q. A. I'm sorry?

Johnson

I think, yes, that's all part of what's

in the patent. Q. What is your basis for saying that's

what's in the patent? A. I think -- it's language from the

patent that you're reading to me, so yes. Q. patent. No, I'm not reading language from the Can you look at Column 1? MR. LEMIEUX: Yes, you were.

Can you look at Column 1 of your '281

I'm referring you to Column 1, lines 35

MR. LEMIEUX:

But we're not reading

language from the patent, which was the premise of your question. Q. Can you read that to yourself. (Pause.) Okay. Uh-huh. The patent says the merchant processor You've read that.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

Johnson may be the same entity as the lender. that? A. Q. Yes. So my question is can the merchant Do you see

processor be the same entity as the third party as well. A. Q. Say it one more time for me. Can you substitute "third party" for

"lender" in that passage? MR. LEMIEUX: Objection.

I don't know what the ramifications of

substituting that word would be from a legal standpoint. Q. Well, you're the inventor. You tell

me, and I'm asking you. mean? A.

What does your patent

I am, but I didn't write this.

This is

written by a professional attorney.

So I can -- I

can't defend each word and fully understand the ramifications of substituting words in a contract -- in a patent, what that would do. Q. Did the attorney make the decision that

the merchant processor and the lender could be the same entity or did you make that decision?

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