Mirror Worlds, LLC v. Apple, Inc.

Filing 160

CLAIM CONSTRUCTION RESPONSE BRIEF re: #151 Mirror Worlds' Claim Construction Brief, filed by Apple Inc. (Attachments: #1 Decl. of Stefani C. Smith ISO Apple's 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)(Smith, Stefani) Modified on 1/11/2010 (mll, ).

Mirror Worlds, LLC v. Apple, Inc.

Doc. 160 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

Merrill Legal Solutions [phone]
Dockets.Justia.com

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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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A.

I see that they used that phrase in

this Paragraph 4. Q. Okay. In Paragraph 32 -- now we're

back to the substream section -- you state that the portion of Apple's proposed construction that a stream -- a substream is a stream that is a subset is superfluous. Is that because that aspect of the construction -- well, strike that. What did you mean by superfluous in that context? A. It's not necessary to create a

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perfectly satisfactory construction for the word "substream." Q. And that's because it's already a

requirement of the claim that a stream is a subset -- I'm sorry -- a substream is a subset of a stream? MR. STEIN: Objection.

Could you read that back? Sure. By superfluous, what you mean is

that it's not necessary to add those words to the construction because it's already clear that a stream -- I'm sorry -- a substream is a subset Merrill Legal Solutions [phone]

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of a stream? MR. STEIN: A. Objection to form.

In the specification, they use So, for

stream, mainstream and substream.

understanding the invention, I think it's really most important to understand the distinction between a mainstream and a substream and, therefore, construing a substream as a subset data units or documents yielded by a filter on a stream with the filter identifying certain documents within the stream is entirely sufficient. Q. Okay. By superfluous, you don't --

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you're not saying that you think that Apple's language is wrong; you just think it's unnecessary, correct? A. I think it carries the danger that

there might be some implication of including it that's -- that's not necessary or not relevant. Q. A. Q. But it's not wrong? At the moment, I'm not sure. But isn't that what superfluous

means, that it's -- that it's not wrong but not necessary? A. It could mean that it might be

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misleading. Q. That's not what -- you haven't

offered any opinions that it's misleading, right? A. No, I mean superfluous --

superfluous words can mislead. Q. How does the language that a stream

is a subset -- a stream that is a subset, how is that language misleading in any way? A. To the extent that the reader

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understands the constrict stream to mean something that is not essential to a substream. Q. But you just testified a few

minutes ago that every attribute of substream that you discuss -- I'm sorry -- every attribute of stream that you discuss in your declaration is also an attribute of a substream. MR. STEIN: A. Objection, form.

That is my belief at the moment,

but I have not studied that question to determine for sure whether it's accurate. Q. Okay. So if you have no opin -- so

if that's your opinion at the moment, it must also be your opinion at the moment that the language proposed by Apple, a stream that is a Merrill Legal Solutions [phone]

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subset, isn't misleading, it may be unnecessary, in your opinion, but you can't have any opinion that it's misleading if you agree that all the attributes of a stream are also attributes of substream. Isn't that right? A. Well, all of that is logical. I

think it's always best to have the minimum wording in a construction. Q. Let's talk about the timestamp to

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identify phrase, and you address that in Paragraphs 36 through 38 of your declaration. Why don't you take a look at that and let me know when you're ready for me to ask some questions about those paragraphs. A. Q. Okay. You see that in the -- in the first

sentence of Paragraph 38, you -- you state, you understand that Apple proposes that this term be construed to be "date and time value that uniquely identifies each document." Do you disagree with that proposed construction? A. Q. Yes. Okay. You understand -- well, do

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unit? MR. STEIN: A. No. I'm saying that the selecting doesn't necessarily designate a time and date value that is unique. Q. Okay. So what portion of -- of the Objection to form.

computer system described by Claim 1 assigns a unique -- assigns a timestamp to uniquely identify each data unit? A. I think that's implied to one of

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ordinary skill in the art, required by the necessity to create an ordering. Q. So, but which of these means would

have a structure that performed that function? MR. STEIN: A. Objection to form.

Well, when we discuss the

structure, I think we can -- we can identify the structure where a time and date value are found. Q. But you just testified that you

thought that that -- not that you thought -that it was your opinion that that selection might not result in a unique -- in a timestamp that uniquely identifies. So where in what's described in the Merrill Legal Solutions [phone]

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A.

I mean that the timestamp of

Claim 1 need only be a time-based identifier. Q. So there could be elements in the

mainstream -- I'm sorry. There could be data units in the mainstream -- strike that. There can be multiple data units in the mainstream that each have the same timestamp in Claim 1. Is that your -A. Q. A. I'm not saying that. Okay. Well --

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I'm saying there may be multiple

data units in the mainstream which have the same time and date value. Q. But I'm asking about -- I'm not I'm asking

asking about time and date values. about the timestamp.

So is there something in the timestamp of Claim 1, in addition to time and date values? A. Q. require? There may be and there may not be. Well, what -- what does Claim 1 Does Claim 1 require that timestamps

have something in addition to date and time Merrill Legal Solutions [phone]

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information? A. Q. I'm sorry? Does Claim 1 require that the

timestamps of that claim include more than date and time information? A. Q. Not necessarily. Well, it either requires it or it

doesn't, so which is it? A. To the extent that the date and

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time information produce unique values, then it does not require additional information. Q. Okay. And if the date and time

doesn't require additional -- I'm sorry. If the -- if the timestamp requires additional values beyond date and time, are those additional values determined during -- by the means for selecting of Claim 1? MR. STEIN: Objection.

If you need time to look at your report on the means for selecting information, please do so. Have you found that part? THE WITNESS: A. Yes.

So, the claim limitation means for

selecting a timestamp to identify each data unit Merrill Legal Solutions [phone]

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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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Q. A. Q.

Sure. So now the question was? The question is whether an

abbreviated form of a document representation can simply be a smaller graphical depiction of that document representation? A. One way of abbreviating -- an

abbreviated version could well mean something that is smaller or something that is lower resolution. Q. context? A. that. Q. abbreviated? A. I think -- I think abbreviated Is that the ordinary meaning of It could mean -- possibly mean Is that what it means in this

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could mean a lot of different things in a context of a document representation. are some of the possibilities. Q. If I asked you for an abbreviated So those

version of your declaration, would you print it out in 8-point font instead of 12-point font? A. Well, let's put it this way: If I

were to hand you a small version that were not Merrill Legal Solutions [phone]

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8-and-a-half by 11 pages and call it an abbreviated version, I think that might well apply. Q. You do? You think that that

just -- a shrunk, an 8-point font version of your declaration would be -- you think a fair and accurate description of that would be an abbreviated version? MR. STEIN: A. Objection.

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I think that reducing the -- the

pixel resolution of a document representation is one way of abbreviating a representation. Q. If the court ordered you to submit

an abbreviated version of your declaration, would you feel comfortable submitting the same document in 8 point font to the court? MR. STEIN: A. court wanted. Objection.

I would doubt that that's what the I would also not submit it on a

graphical screen. MR. CHERENSKY: Okay. Tape change.

THE VIDEOGRAPHER: record. Time is 2:23 p.m.

We're off the

This is going to be

the end of tape number two. (Recess taken.) Merrill Legal Solutions [phone]

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operating system A utilizing subsystems from operating system B, that one can no longer necessarily draw a clean boundary between the two operating systems with regard to implementation of a particular feature. Q. software? A. Q. A. is. Q. Is -- in the context of software, Yes. Is a display facility software? In this limitation, I believe it Is a document organizing facility

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what does the term "facility" mean? MR. STEIN: If you need -- again,

if you need to look at your report -THE WITNESS: MR. STEIN: please do so. Q. Just for the record, that's Yeah. -- on that limitation,

Paragraphs 112 and 113. A. So could you ask your question

again, please? Q. Sure. In the software context, what does the term "facility" mean? Merrill Legal Solutions [phone]

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A.

It means a module or subsystem that

provides some particular capability or facility -- well, feature. Q. A. Q. Okay, a feature. Try another word, yeah. So -- right, okay. So it's a modular subsystem that provides some particular capability or -- or feature, correct? A. Q. Okay. So that means it's some -- it's

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software, right, it's just code? A. Q. Code and related data structures. All right. Let's go back to

Page 14 of your report and the term "archiving," which is Paragraphs 45 and 46, so please take a look at those paragraphs and let me know when you're ready. A. Q. Okay. The -- the last sentence of

Paragraph 46, in -- in that sentence, you state, "While an example of archiving described in the Mirror Worlds patent involves moving files to long-term storage, the term 'archiving' is not limited to that example." Merrill Legal Solutions [phone]

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1 2 3 4 5 6 7 8 9 A. Q.

The only example of archiving described in the specifications is, in fact, moving files to long-term storage. Isn't that right? I believe so. Okay. And that's described in Isn't that

Column 10, lines 17 through 23. right? MR. STEIN:

And, again, if you feel

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that you need to review other portions of the specifications, please do so. A. Well, that's the only one I can

find at the moment. Q. A. Okay. This is from lines 16 through 35,

approximately, in Column 10. Q. Right, okay. Let's move on to the term "glance views," which is Paragraphs 47 through 51. So

why don't you read those paragraphs and let me know when you're ready. A. Q. Okay. In Paragraph 47, you state that,

"One of ordinary skill in the art would understand that a glance view refers to an Merrill Legal Solutions [phone]

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the screen and that additional something is the glance view. Isn't that right? A. So, reading Claim 16, the portion

of the third limitation says, "And responding to a user sliding without clicking the cursor or pointer over a portion of the displayed document representation to display the glance view of the document whose document representation is touched by the cursor or pointer." If that's what you're referring to in terms of action and response to the action, I understand that part. Q. Okay. So if a -- so it's your

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opinion that a -- it's your opinion that a glance view can be a document -- or is a document representation. Is that right? A. A glance view is a document

representation, yes. Q. Okay. And if you -- let's suppose

that you have a stream and in that stream is document A, and so there's a -- and the stream is displayed on the screen and so there's a rep -- document representation of document A. Merrill Legal Solutions [phone]

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All right? Okay. Okay. Now, you can slide the

cursor over the document representation, and when you -- when the cursor is over the document representation, corresponding to document A, now, in addition to that existing document representation that's -- that's already there, a glance view now appears on the screen resulting from the mouse cursor being placed over document representation A. MR. STEIN: A. Objection.

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I think that generally represents

what this limitation is talking about. Q. Okay. And so now we have on the

screen, on the display, in addition to other document representations, we have a document representation corresponding to document A and a glance view corresponding to document A, and those two -- those are two different bit patterns -- or two distinct bit patterns that are on the display. MR. STEIN: A. Objection.

Well, let's use the term "stream

view document representation" for the one that's Merrill Legal Solutions [phone]

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there -Q. A. Q. A. Okay. -- earlier -Right. -- and glance view for the one that

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comes up later. Q. A. Okay. I don't think it's necessary for

them to be two different bit patterns -Q. A. Q. Well --- within their borders. -- so -- again, I don't want to

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get -- I don't want to hung up on different. I just mean there's one instantiation that's in the document, that's the document stream representation, and there's another instantiation on the display that is the glance view and you can point to two things on the screen. You can point to a first thing, that's a document stream representation, and you can point to a second thing, that's a glance view that corresponds to that document stream representation, correct? MR. STEIN: Objection.

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A.

When you say "you can point," you

mean like I as a human can -Q. A. Correct. -- say, oh, here's one of them and In that sense, I do believe

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here's the other? that's true. Q. Okay.

Let's move on to the That's Why

receding foreshortened stack term.

Paragraphs 52 and 53 of your declaration.

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don't you read those two paragraphs and let me know when you're ready. MR. STEIN: now? MR. CHERENSKY: Sure. That's fine. Can we take a break

THE VIDEOGRAPHER: record. Time is 3:45 p.m. (Recess taken.) THE VIDEOGRAPHER: the record. Time is 3:58 p.m. THE WITNESS: something. BY MR. CHERENSKY: Q. A. Okay.

We're off the

We're back on

I'd like to say

As I was leaving the room, I

realized that I may have -- I was referring to Merrill Legal Solutions [phone]

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Figure 1 and not focusing solely on Claim 16 of the '427, so I may have misspoken in terms of my understanding of whether Claim 16 itself requires the glance view and the displayed document representation to be distinct and separate items. Q. So, Dr. Levy, wasn't I very, very

clear before your last set of answers that I wanted you to focus on Claim 16 and not Claim 1? Didn't I say that very clearly? A. You did say that very clearly, but,

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unfortunately, I had this in front of me at the same time and I kept referring to that. Q. A. Q. And by this, you mean the -Figure 1 of the '227 patent. So are you saying you want to

change your testimony regarding my question to you about Claim 16? A. Q. Yes. Did you -- before you -- before you Did you

make that correction, let me ask:

discuss your testimony about the glance view and the document -- document representation with counsel during the break? A. As -- after we left the room, I

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said to counsel I thought I may have misrepresented Claim 16 because I was referring to Figure 1. Q. A. Did -- oh, I'm sorry. So counsel encouraged me to correct

my testimony if that was the case. Q. Did counsel ask you about that

testimony before you said that you might have been unclear in your answer? A. Q. He did not. So what -- how would you like to

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correct your testimony regarding Claim 16? A. I think that the third limitation

in Claim 16, which is the one we were discussing, mentions both a display document representation and a glance view. And in my understanding of this, they may or may not be separate and distinct graphical elements on the screen. Q. Okay. Well, then let's go back Before I do that,

over it -- well, I'm sorry. is there anything else? A.

I think that's the most important

Q.

Okay.

Well, I guess let's just get

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it all out. So, without regard to whether it's the most important thing, is there anything about Claim 16 that -- your testimony about Claim 16 that you'd like to change? A. Q. I don't think so. Okay. Now, you agree that what

that third indented paragraph in Claim 16 describes is that the glance view is displayed on the screen as a result of the cursor or pointer being positioned over the displayed document representation? You agree with that, don't you? A. It says responding to the sliding

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cursor or pointer over a portion of a displayed document representation to display the glance view, yes, that is right. Q. Okay. And you agree, don't you,

that the glance view of a displayed document representation is not visible on the display if the cursor or pointer is not positioned over the displayed document representation, don't you? MR. STEIN: A. Objection.

Well, I think this -- this section I

of this claim is kind of -- is moot on that. Merrill Legal Solutions [phone]

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think it implies that the glance view, as you've said before, is generated in response to a positioning operation. Q. Okay. So -- and -- and this claim

language that we're talking about, the third indented paragraph, wouldn't make any sense if the glance view of the displayed representation was always on the display no matter where you put the mouse pointer -- the mouse cursor, correct? I mean, it would be meaningless, wouldn't it? A. Well, I don't know whether it would

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be meaningless or not. I do agree that -- I do believe that this is describing a manner of designating a display document representation, of which a glance view is to be generated. Q. Okay. And you testified that the

glance view is generated in response to a positioning operation that is placing the mouse cursor over the displayed document representation, right? MR. STEIN: A. Objection.

Well, it says cursor or pointer.

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It doesn't mention mouse. Q. Okay, cursor or pointer. So you agree that the glance view is generated when the cursor or pointer is positioned over the displayed document representation? A. that one? Q. A. Q. I'll just restate it. Okay. You agreed, and you testified, that Okay. I'm sorry, could you read

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the glance view is generated as a result of the positioning of the pointer over the displayed document representation? A. Yeah, that is my understanding of

the meaning of responding to a user sliding, and so on, to display the glance view. Q. Okay. So the glance view isn't

visible on the display until the cursor or pointer is positioned over a portion of the displayed document representation. Isn't that right? A. Q. That is what this claim says, yes. Okay. So then -- and it becomes

visible when the position -- I'm sorry. Merrill Legal Solutions [phone]

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It becomes visible when the cursor or -- or pointer is positioned over the displayed document representation? A. Q. Yes. So you can point on the display to

the glance view when the cursor or pointer is positioned over the displayed document representation, but you can't point to it before the cursor or pointer is positioned over the displayed document representation. Isn't that right? A. Well, we've moved now into the

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human pointing -Q. A. Q. A. Yes. -- with a finger? Yes, yes. Perhaps we better say you can't see

the glance view until a document representation has been selected by some means. Q. Okay. And when the glance view is

visible on the display, the -- is the displayed document representation also visible on the display? A. I don't believe this claim

specifies what happens to the document Merrill Legal Solutions [phone]

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representation. Q. But what the user -- what the --

what the user sees as the -- when the -- well, strike that. The positioning of the pointer over a portion of the displayed document representation change what the user sees on the display. Isn't that right? A. It changes it in the sense that a

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glance view is displayed. Q. And before the glance -- before the

cursor is positioned over the document representation, the glance view is not displayed? A. Q. A. That is my understanding. And -I'm not sure that's required, but

the glance view of the document representation being selected may not be there. other glance view. Q. And it's your understanding that a It may be some

user of a system corresponding to Claim 16 will notice a difference on the display when the glance view of the displayed document Merrill Legal Solutions [phone]

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It doesn't mention mouse. Q. Okay, cursor or pointer. So you agree that the glance view is generated when the cursor or pointer is positioned over the displayed document representation? A. that one? Q. A. Q. I'll just restate it. Okay. You agreed, and you testified, that Okay. I'm sorry, could you read

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the glance view is generated as a result of the positioning of the pointer over the displayed document representation? A. Yeah, that is my understanding of

the meaning of responding to a user sliding, and so on, to display the glance view. Q. Okay. So the glance view isn't

visible on the display until the cursor or pointer is positioned over a portion of the displayed document representation. Isn't that right? A. Q. That is what this claim says, yes. Okay. So then -- and it becomes

visible when the position -- I'm sorry. Merrill Legal Solutions [phone]

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of a mainstream data structure. And so whether -- a data structure which is a mainstream. Q. When you say we don't have

disclosed here, you mean the '227 patent doesn't disclose a particular implementation of a data structure that constitutes a mainstream? A. Q. Right. So I guess then you don't know

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if -- well, let's go back to the executable code question. So you listed some -- you referred to operating systems and -- but you're not sure whether those operating systems can instantiate a mainstream, as I understand your testimony. Is there any executable code that is disclosed in the '227 patent that, in your opinion, does instantiate a mainstream? A. Could you clarify what you mean by

disclose -- executable code disclosed? Q. So, by executable code, I'm

referring to, you know, the language that you've used in your declaration, so Paragraph 64, the second to last sentence, "Accordingly, mainstream is a data structure that is Merrill Legal Solutions [phone]

JOHN LEVY

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instantiated by executable code." So, with that understanding of executable code, is there any executable code that appears anywhere in the '227 specification that instantiates a mainstream? A. Well, '227 specification doesn't So, in a trivial sense,

have any code listed.

there is no executable code disclosed in that manner. Q. Paragraph 65, last sentence, second

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sentence, you state, "While I disagree, if it is interpreted in that manner" -- the manner that Apple proposes -- "then the corresponding structure could be the computer hardware and executable code implementing a mainstream of data units." So I've asked you about the executable code. Now I'd like to ask you about

the computer hardware. What computer hardware is disclosed in the '227 specification for implementing a mainstream of data units? A. The '227 specification does not

disclose a particular computer hardware. Q. Okay. Let's move on to the means

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1 2 3 4 5 6 7 8 9 A.

So with that discussion of browse cards in mind and your proposed construction of glance view, which we discussed earlier, do you understand browse card as described at the bottom of Column 7 and the top of Column 8 to be the same thing as a glance view? MR. STEIN: Objection.

I think it's -- for the moment, for

the rest of this discussion, let's accept -let's stipulate that a browse card and a glance view are the same thing. Q. Okay. Then, going back to your

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statement in the second sentence of Paragraph 92 that the corresponding structure for the means for displaying alternate versions of the content of the data units, if that phrase is to be interpreted pursuant to 112, 6, is browse card/glance views, does that mean -- so then what are -- what are browse cards/glance views alternative versions to? A. Browse cards/glance views can take

on different forms, and that would be the alternative versions. Q. Are different forms of browse cards

or glance views disclosed anywhere in the '227 Merrill Legal Solutions [phone]

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CERTIFICATE STATE OF NEW YORK

COUNTY OF NEW YORK )

I, 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, do hereby certify: That JOHN LEVY Ph.D., the witness whose deposition is hereinbefore set forth, was duly sworn by me and that such deposition is a true record of the testimony given by the witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of December 2009.

NANCY MAHONEY,,/CSR/RPR