Mirror Worlds, LLC v. Apple, Inc.

Filing 156

MOTION for Partial Summary Judgment of Invalidity for Indefiniteness Under U.S.C. Section 112 paragraph 2 by Apple, Inc.. (Attachments: #1 Text of Proposed Order, #2 Affidavit Declaration of Sonal N. Mehta, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit F, #9 Exhibit G, #10 Exhibit lH, #11 Exhibit I)(Cherensky, Steven)

Mirror Worlds, LLC v. Apple, Inc.

Doc. 156 Att. 6

JOHN LEVY December 11, 2009 Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION -----------------------------------------x MIRROR WORLDS, LLC, Plaintiff, VS. APPLE INC., Defendant. ----------------------------------------x December 11, 2009 9:10 a.m. Videotaped deposition of JOHN LEVY, Ph.D, at the offices of Weil, Gotshal & Manges, 767 Fifth Avenue, New York, New York, before Nancy Mahoney, a Certified Court Reporter, Registered Professional Reporter, Certified LiveNote Reporter, and Notary Public within and for the States of New York and New Jersey. No. 6:08 cv 88 LED

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A P P E A R A N C E S: STROOCK & Attorneys 180 New BY: STROOCK & LAVAN for Plaintiff Maiden Lane York, New York 10038-4982

KENNETH STEIN, ESQ.

WEIL, GOTSHAL & MANGES Attorneys for Defendant 201 Redwood Shores Parkway Redwood Shores, California 94065 BY: STEVEN CHERENSKY, ESQ.

ALSO PRESENT: Lisa Olle, Apple (Via Conference) Jessica Choi, Paralegal Harris Teran, Videographer Merrill Legal Solutions

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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 Levy-5 DESCRIPTION Levy-1 Levy-2 WITNESS

INDEX PAGE

JOHN LEVY Ph.D. BY MR. CHERENSKY 5

EXHIBIT INDEX PAGE 11 Curriculum Vitae of John Levy Ph.D. Declaration of John Levy Ph.D. Regarding Claim Construction Joint Claim Construction and Pre-Hearing Statement Pursuant To Patent Reul 4-3

17

Levy-3

30

Levy-4

Declaration of Dr. John Levy in Support of Sun Microsystems, Inc.'s Responsive Claim Construction Brief Concerning the Sun Patent Claim Terms 64 Few pages from the American Heritage College Dictionary 195

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is -- does not include the generating the timestamp. And so the structure for selecting a timestamp is user-oriented and has only to do with date and time values. MR. STEIN: I don't mean to

interrupt your line of questioning, but my failure to eat breakfast this morning has made me very hungry, so whenever you want to take a break, I'd appreciate it. MR. CHERENSKY: can take a break. THE VIDEOGRAPHER: record. Time is 12:19 p.m. (Luncheon recess.) THE VIDEOGRAPHER: the record. Time is 1:21 p.m. We're back on We're off the That's fine. We

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BY MR. CHERENSKY: Q. A. Q. Good afternoon, Dr. Levy. Good afternoon. When we broke for lunch, we were

discussing the timestamp to identify limitations that's on Page 12 of your declaration, Paragraphs 36 to 38. there, if you would. Merrill Legal Solutions [phone] Why don't you turn back

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1 2 3 4 5 6 7 8 9 that?

A. Q.

Okay. In Paragraph 38 -- do you have

A. Q.

Yes. -- about halfway through you talk

about the situation where a user might set the date and time for the same value for more than one document and, therefore, the date and time alone cannot serve as a unique identifier. And you agree that the timestamp that's ultimately used to identify documents needs to be unique for the documents to be placed into a mainstream, correct? A. Q. Yes. Then you say that -- you continue

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to say that, "In that case, further information must used in addition to the date and time in order to identify data units." What -- what further information is disclosed in the '227 specification to uniquely identify data units? MR. CHERENSKY: Off the record. We're off the

THE VIDEOGRAPHER: Time is 1:23 p.m. (Recess taken.) Merrill Legal Solutions [phone]

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1 2 3 4 5 6 7 8 9 the record.

THE VIDEOGRAPHER: Time is 1:34 p.m.

We're back on

BY MR. CHERENSKY: Q. Okay. Dr. Levy, we were talking

about timestamp to identify in Paragraph 38, and I was asking you about the -- the statement in your declaration in Paragraph 38, a little bit more than halfway through that paragraph where you state, "In that case" -- in that case being the case where the date and time alone cannot serve as a unique identifier -- "further information must be used in addition to the date in time in order to identify data units." And my question is: What further

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information is disclosed in the '227 specification for further -- what further information is disclosed for -- in addition to date and time in order to uniquely identify data units? A. Okay. By the way, I didn't use the

word "uniquely" in my sentence, but, nonetheless. The specification taken as a whole and the specifics about identifying simply leave one of ordinary skill in the art to understand Merrill Legal Solutions [phone]

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that when the date and time values are not sufficient to create a unique identifier, that something in addition will be needed. Q. Okay. Is there any explicit

recognition in the '227 specification that date and -- date and time may not be sufficient to uniquely identify data units? A. I don't believe that is explicit in

the specification. Q. Also, there's no explicit

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discussion in the specification regarding the use of any additional information beyond date and time in order to uniquely identify data units. Isn't that right? MR. STEIN: Objection. Could I hear that

THE WITNESS:

(Record read.) A. question. Try to regard that as a simple I think there is nothing that

identifies specific fields or values that would be used that one of ordinary art -- skill in the art would understand that needed to be used. Q. You state in the last sentence in

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Paragraph 38 that, "One of ordinary skill in the art would also understand that timestamps, as frequently used in various software applications, identify data items on the basis of timestamps based on the date and time, plus additional information." What additional information would one of ordinary skill in the art understand might be used? A. Anything that suffices to make the

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timestamp unique. Q. A. Can you provide any examples? Sure, I'll offer an example. When the resolution of the clock is not sufficient, then one could append a pseudo random number, let's say a 32-bit number, which would then be used as part of the unique identifier. Q. And it's your opinion that one of

ordinary skill in the art would understand that that could be -- I'm sorry, did you say could be appended to the timestamp -- to the date and time? A. Q. That is the word I used. Okay. So, and one of ordinary

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skill in the art would understand that this 32-bit pseudo random number could be appended to the date and time specifically within the context of the -- of Claim 1 of the '227 patent. Is that right? A. I'm not quite sure what you mean by

specifically to that claim. Q. Sure. So you testified that one of ordinary skill in the art would understand that if the resolution of the timestamp was insufficient to uniquely identify, then a pseudo random -- a 32-bit pseudo random number could be appended to the date and time. Would one of ordinary skill in the art understand that that specific method could be used in the context of Claim 1? A. Well, I'm speaking of one of

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ordinary skill in the art using timestamps in a variety of software applications. And so, by

implication, that would include the type of system referred to in Claim 1. Q. Can you identify any specific

applications that append a 32-bit pseudo random number to a date and time in order to uniquely Merrill Legal Solutions [phone]

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identify data units? A. today. Q. All right. So that's one method No, I'm not prepared to do that

that could be used to provide additional information to date and time in order to uniquely identify data units. Can you provide any other examples of methods that could be used to provide additional information to date and time in order to uniquely identify data units? A. Yes. One could use some other field that already existed in the data unit that would, when appended to the date and time, make it unique -Q. A. Q. And --- make -- make a unique timestamp. Do you have any particular date --

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any particular fields in mind that could be used for that function? A. Well, I haven't thought about it

very much, but the size of the data unit, if it were there, might be a field one could use. There could be others. Merrill Legal Solutions [phone]

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Q.

How would one of ordinary skill in

the art know that using the size of the data unit appended to the date and time would uniquely identify data units? A. Well, it depends -MR. STEIN: A. Objection.

-- it depends on what type of data If they were -- if

units we're talking about.

they were, say, text files, typically most text files differ in length from each other; and, therefore, for two text files that happen to have the same date and time, it would be unlikely for them to have the same length. that's just an example. Q. It would be possible that two text But

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files have the same size and the same date and time. Isn't that right? A. Q. interrupt? A. one example. In fact, any field in which those data units which have the same date and time, Merrill Legal Solutions [phone] Yes. I -- I was only using that as Yes. Okay. Can you -- I'm sorry. Did I

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any field which would then distinguish between those which have the same date and time would be sufficient. Q. Do you know of any applications

that use a field in the data unit in combination with date and time in order to uniquely identify data units? A. Well, I'm not sure I can name an

application to you, but there's a classification of applications that involve managing messages being stored and forwarded where, in order to identify a message, one needs a unique identifier, and that may be constructed from a time and date plus additional information. Q. But you don't have any specific

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applications in mind that use that method? MR. STEIN: A. Q. Objection.

I'm not prepared to name any today. Okay. And you don't know what

additional information might be used in any of those unnamed applications in order to append to date and time to uniquely identify data units, do you? MR. STEIN: A. Objection to form.

Well, I -- I don't think that's

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quite fair.

I believe I -- I could go on with

additional examples and eventually I might recall an application I've worked on where one particular kind was used. Q. And this appending of the contents

of a field of the data unit to the date and time information in order to uniquely identify data units isn't discussed anywhere in the '227 specification, is it? A. Q. Only by implication. And by implication, are you

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referring to your opinion that one of ordinary skill in the art would know that date and time alone might not be sufficient, so something else might need to be done, or is there something more specific that you have in mind? A. Q. No, I think that's generally it. Are there any other examples,

beyond the two that you've testified about, that you're aware of for additional information to be used along with date and time in order to uniquely identify data units? A. Yes. In the case where the date and time are set by a user -- or selected by a user, the Merrill Legal Solutions [phone]

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system clock may well have additional time resolution which could then be used at the time of the creation of the stamp, in other words, the low order bits of a realtime clock could be used as the appended differentiating data field. Q. Is that method of uniquely

identifying data units discussed anywhere in the '227 specification? A. Q. I don't believe so. Anything else that you have in mind

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as an example of additional information that could be used in -- along with date and time to uniquely identify data units? A. Well, in the -- not an additional

type of -- of field, but in the case where an agent or some software activity applies a timestamp -- is generating a timestamp, when the clock is sufficiently fine-grained, then it's not even necessary to add another field to make sure it's differentiated and unique. Q. Does the '227 specification discuss

anywhere that a clock of finer resolution would be used to set date and time by an agent versus that that would be otherwise set? A. No. This is merely something that

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disclosed in the '227 specification for -- that creates data units -- I'm sorry -- that generates data units by the computer system? A. Well, I believe these applications

all generate data units, and so the reference to an application program that generates data units is a reference to that package, which includes executable code. Q. But the executable code itself

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isn't disclosed in the '227 application, is it? A. Q. Only by inference. Okay. Let's move on to the next

limitation, the means for selecting a timestamp to identify each data unit. That's Paragraph 79

through 81 of your declaration. Why don't you read those paragraphs and let me know when you're ready. A. Q. All right. In the second sentence of

Paragraph 79, you state that, "If this term is interpreted as a means plus function limitation, then the corresponding structure is executable code that selects a timestamp for a data unit based on the present time or a time designated by the user." Merrill Legal Solutions [phone]

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Is there any executable code disclosed anywhere in the '227 specification that selects a timestamp for a data unit based on the present time or a time designated by the user? A. As in the other examples, with

software, the functional description implies the underlying executable code. Q. But there's no explicit disclosure

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of any executable code for performing that function, is there? A. There is no listing at the detailed

level of executed code -- executable code. Q. Okay. Let's move on to the next

limitation, means for associating each data unit with at least one chronological indicator having the respective timestamp, and that's Paragraph 82 through 84 of your declaration. And you can review those paragraphs, and I'll ask the same sort of questions I've been asking. A. Q. Okay. In Paragraph 83, you state, "While

I disagree with Apple's position, if it is interpreted in that manner, then the Merrill Legal Solutions [phone]

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corresponding structure would be executable code implementing the mainstream," and I think we -well, by -- earlier -- in an earlier term, you talked about instantiating the mainstream. Is implementing the mainstream and instantiating the mainstream the same thing? A. Not necessarily. The -- as this

says, the mainstream is a data structure comprised of various things, including chronological indicators. So, here, implementing the mainstream includes -- or means, in part, populating it. So as a daily unit is pop --

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being populated, it's associated with at least one chronological indicator having respective timestamps. Q. Okay. Is there any executable code

expressly disclosed in the '227 specification for implementing the mainstream, as you've used -- defines that term "implementing" here. MR. STEIN: A. here. Q. The -- it's your opinion that this Objection.

There is no detailed code listing

claim is -- should not be construed as a -Merrill Legal Solutions [phone]

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the record.

Time is 5:37 p.m.

BY MR. CHERENSKY: Q. Okay, I'm actually going to move on

to limitation Z, so -- which is Paragraphs 88 through 90 of your declaration. I'm really only going to ask about Paragraph 88, but review those paragraphs and let me know when you're ready. A. Q. All right. Okay. You state in Paragraph 88

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that, "The structure in the specifications that correspond to this limitation is executable code that dynamically updates the mainstream and executable code that dynamically updates substreams." Is there any executable code, Dr. Levy, disclosed in the '227 specification that dynamically updates the mainstream and dynamically updates substreams? A. Let's take, for example, Column 5 Your -- your specification is

at lines 1 to 13.

describing the operation of substreams. So a person of ordinary skill, of course, will understand that all of the operation here is implemented by executable Merrill Legal Solutions [phone]

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code.

And so this is giving a fair amount of

information about how that executable code is to operate, such as automatic monitoring of information and automatic collecting -automatically collecting all arriving mail, and so on. Q. There is no actual executable code

disclosed in the paragraph you just referred to on the top of Column 5 for dynamically updating the mainstream or dynamically updating substreams, is there? A. While there's no -- there's no

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detailed code listed here, one of ordinary skill in the art would certainly understand that that's what's underlying each of these operations. Q. Okay. Let's move on to limitation

AA, means for displaying alternate version of the content of the data units. That's

Paragraphs 91 through 93 of your report. Please take a look at those paragraphs. A. Q. I'll have a few questions for you. All right. First of all, what is an alternate

version of the content of the data units as Merrill Legal Solutions [phone]

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A.

There's -- there's further

discussion of browse cards at Column 7 at the bottom, as I think you may have pointed out, starting at 64, and the purpose of it is to help user identify a document by providing the user some idea of the document's contents in a small window. So, anyway, I believe those give you some examples of ways in which alternative view -- excuse me -- alternative versions of the content of data units are displayed. Q. Okay. Let's move on to

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limitation BB, the means for archiving a data unit associated with a timestamp older and a specified time point, and it goes on. That's Paragraphs 94 through 96 of your declaration. paragraphs. Feel free to read those

I'm just going to ask you about

Column -- I'm sorry -- Paragraph 95. A. Q. Okay. In Paragraph 95, second sentence,

you state, "While I disagree" -- referring to Apple's position -- "if it is interpreted in that manner, then the corresponding structure would be computer hardware and executable code Merrill Legal Solutions [phone]

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implementing archive of data units." Dr. Levy, there is no computer hardware or executable code explicitly disclosed in the '227 specification for implementing archiving of data units, is there? MR. STEIN: A. Objection to form.

Oh, by the way, I found the

paragraph in which the time order was reversed. It's Column 10, lines 13, 15 -- 12 to 15. So the reference to Column 10, 16 to 33, describes the actions taking place when archiving -- an example of how archiving may be done. Q. But there's no explicit disclosure

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of computer hardware or executable code there, is there? MR. STEIN: Objection.

Well, again, in line -- Column 10,

line 28, "Streams operating system monitors remaining disk space," and that implicitly refers to code -- programs. Q. My question specifically asked

about explicit disclosure of executable code. There's no explicit disclosure of executable code implementing archiving of data Merrill Legal Solutions [phone]

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units in the '227 specification, is there? A. Well, again, every time the

operating system is described as taking an action, a person of ordinary skill in the art understands that executable code is what enables it to take that action. Q. Okay. I'm not asking you what one

of ordinary person skill -- skilled in the art understands. I'm asking you about explicit All right?

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disclosure in the specification.

There is no explicit disclosure in the specification of executable code implementing archiving of data units, is there? A. In the same terms as we spoke of

before, I do not see a detailed listing here showing the lines of code. Q. Okay. And there's no executable

code implementing user selectable operations on streams -- there's no explicit disclosure of executable code implementing user selectable operations on streams in the '227 specification, is there? MR. STEIN: A. I'm sorry. Objection. Where -- where is that

in my report?

Could you point me to it?

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Q.

Well, I -- I'm trying to move on.

So this is Paragraph 98. A. Okay. There is no detailed listing of such executable code. Q. Okay. And there's no executable

code explicitly disclosed in the '227 specification for implementing incremental substreams, is there, Dr. Levy? And I'm referring to Paragraph 100 now. MR. STEIN: A. Objection.

18:02:27 10 18:02:27 11 18:03:07 12 18:03:11 13 18:03:21 14 18:03:24 15 18:03:28 16 18:03:29 17 18:03:32 18 18:03:34 19 18:03:35 20 18:03:36 21 18:03:37 22 18:03:41 23 18:03:44 24 25 A.

Again, the last sentence in the

paragraph ending at Column 7 at 30 talks about what operation is required to do this type of incremental substreams, and that implies the underlying code. Q. But there's no explicit disclosure

of executable there, is there? MR. STEIN: Objection.

There -- there is not a listing of

detailed code. Q. Okay. Last -- lastly, there is no

explicit disclosure of executable code implementing alternative versions of data units Merrill Legal Solutions [phone]

JOHN LEVY

December 11, 2009 Page 241

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1 2 3 4 5 6 7 8 9

in the '227 specification? Paragraph 102 here. A. Okay.

And I'm referring to

Well, the references --

citations to the '227 patent at Column 4 and at Column 11, again, give a description of the operations to be taken, those operations understood to be implemented by executable code. Q. But that executable -- there's no

explicit disclosure of that executable code in the '227 specification, is there? A. There are no examples of detailed

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code listings here. MR. CHERENSKY: further questions. Okay. I have no

Thank you for your time. This concludes Time is

THE VIDEOGRAPHER: today's videotaped deposition. currently 6:05 p.m. of tape four of four.

This is going to be the end We're now off the record. (Time noted: 6:05 p.m.) _______________________ JOHN LEVY Ph.D.

Subscribed and sworn to before me this _____ day of _________, 2009. __________