WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 491

RESPONSE to Motion re 482 MOTION for Judgment as a Matter of Law [RENEWED] OF NO INVALIDITY OR, ALTERNATIVELY, MOTION FOR NEW TRIAL ON INVALIDITY filed by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson. (Attachments: # 1 Exhibit A: Trial Transcript, # 2 Exhibit B: Trial Transcript, # 3 Exhibit C: Trial Transcript, # 4 Exhibit D: Trial Transcript, # 5 Exhibit E: Trial Transcript, # 6 Exhibit F: Trial Transcript, # 7 Exhibit G: Trial Transcript, # 8 Exhibit H: DDX 13-19, # 9 Exhibit I: DDX 13-31, # 10 Exhibit J: DX 124, # 11 Exhibit K: DX 148, # 12 Exhibit L: PX 1, # 13 Text of Proposed Order)(Heinlen, James)

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EXHIBIT E Page 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION 2 3 WI-LAN, INC. ) 4 DOCKET NO. 6:10cv521 -vs- 5 6 7 8 9 10 ) Tyler, Texas ALCATEL-LUCENT USA, INC., 9:01 a.m. ET AL ) July 12, 2013 ****************************************************** WI-LAN, INC. ) DOCKET NO. 6:13cv252 -vs) HTC CORPORATION, ET AL ) 11 12 13 14 15 TRANSCRIPT OF TRIAL MORNING SESSION BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY 16 17 18 19 20 21 22 COURT REPORTERS: MS. SHEA SLOAN MS. JUDY WERLINGER 211 W. Ferguson Tyler, Texas 75702 shea_sloan@txed.uscourts.gov 23 24 25 Proceedings taken by Machine Stenotype; transcript was produced by a Computer. Page 42 1 A. Right. 2 Q. Didn't invent time division multiplexing? 3 A. Right. 4 Q. Didn't invent combining TDMA and CDMA -- and 5 CDMA? 6 A. That's correct. 7 Q. Did not invent combining orthogonal codes and 8 overlay codes? 9 A. That's correct. 10 Q. And did not invent using overlay codes to 11 subdivide an orthogonal channel into multiple channels? 12 A. That's correct as well. 13 Q. So if Dr. Wells agreed that all of these 14 things were not things that were invented by the Airspan 15 inventors, what does he assert the inventors actually 16 invented? 17 A. It's my understanding that Dr. Wells and 18 Wi-LAN is claiming that it's a combination of these 19 elements that is the invention. 20 21 Q. Okay. Have you seen that combination that Dr. Wells asserts in the prior art? 22 A. Yes, I have. 23 Q. And where have you seen that? 24 A. One of the references would be in the 25 Tiedemann reference. Page 43 1 2 3 Q. So let's talk about that. And who is Tiedemann? A. Tiedemann is a Qualcomm employee. And what 4 I've shown here is a picture of Qualcomm and what this 5 picture is, is the co-founders are celebrating their 6 10th anniversary, and this occurred in 1985. 7 Qualcomm had been around since 1975. 8 I've included this picture, to show that Qualcomm has 9 been around a long time. 10 11 Q. And that's why So let's talk specifically about this Tiedemann reference, which is Defendants' Exhibit 124. 12 13 So Can you tell us what we're looking at? A. Yes. This is a document that Mr. Tiedemann 14 presented at a telecommunications conference that was 15 held in Boston in 1994. 16 if you look at the top right, shows that it's Edward G. 17 Tiedemann, Jr., and he is employed by Qualcomm out of 18 San Diego. 19 20 And as I mentioned, the name, Now, the title of the -- of the document that he provided was CDMA for Cellular and PCS. 21 In the bottom right-hand corner, you see in 22 the highlighting that Mr. Tiedemann is explaining that 23 his solution for PCS, this personal communications 24 system, is an extension to IS-95. 25 Q. So I'd like to talk about what you found here Page 44 1 in this Tiedemann paper. 2 3 Did you find that Tiedemann describes CDMA using orthogonal codes and orthogonal code generators? 4 A. Yes, I did. 5 Q. Can you explain that? 6 A. As shown on this slide, you see the text 7 that's highlighted, and it says the orthogonal covering 8 codes are a set -- are the set of 64-ary Walsh 9 functions. In English, that means that there are 64 10 squared, or they're a square box of 64, and that's the 11 same 64 Walsh codes that I showed you on the slide. 12 13 14 15 So that 64-ary is probably not a common word many of us use, but that's what is meant by that. Q. And did you also find that TDM -- or that Tiedemann described TDM techniques? 16 A. Yes, I did. 17 Q. And could you explain that? 18 A. Yes. And if this looks similar, this is very 19 similar to the language that I showed you for the 20 IS-95-A specification. 21 Mr. Tiedemann is describing the paging channel that I 22 talked about. 23 milliseconds' duration. 24 25 And here at the top, It's divided into slots of 80 So this is the interval of time, are those 80-millisecond slots. And then he describes that there Page 45 1 is a period of repetition, and that would be the frame. 2 And those are assigned slots. 3 And then he discusses that there's hash 4 functions that are used on the paging channel for a 5 specific slot that the mobile and the base station are 6 to use. 7 8 9 The mobile is to monitor. So you can see -- and that is almost the exact language out of the IS-95-A specification. Q. And so did you find that the Tiedemann 10 document itself described TDM techniques under the 11 Court's construction? 12 A. Yes. 13 Q. And did you also find that Tiedemann described 14 overlay codes? 15 A. Yes. 16 Q. And could you explain that? 17 A. As you can see -- as you can see, it's pretty 18 easy to find. 19 called overlay encoding, and overlay encoding adds 20 additional orthogonal channels. 21 It actually says there is a technique And then he actually refers to an overlay 22 encoder block to show how he's modifying IS-95, or 23 extending it to support these new PCS system 24 requirements. 25 Q. And so there is a diagram in Tiedemann, Figure Page 46 1 2 4-2. Can you explain what we're looking at? A. Yes. Mr. Tiedemann provided this block 3 diagram in his paper on the left. 4 attention first to the top box on the blue -- it's here 5 (indicating) -- that says Walsh Code generator. 6 those are those Walsh codes. 7 codes are generated. 8 whole page. 9 And I draw your And That's where the Walsh Those 64-ary Walsh codes are that He also then shows where the overlay encoder 10 and generator is at. 11 page a figure, Figure 7A, from the overlay patents. 12 And now I've also included on the As you can see, I've colored-coded to show 13 that the overlay code of patents have overlay code 14 generator. That's in purple. 15 And we also have the RW code generator here. 16 The RW, remember it stands for Rademacher-Walsh codes. 17 Those are the Walsh codes that match the Walsh codes on 18 the left, and the encoder. 19 Q. I would now like to go through the claims of 20 the asserted patents and see if we can find each one of 21 the elements, and I have some boards to do that. 22 23 MR. APPLEBY: Your Honor, may I set up one of the boards? 24 THE COURT: 25 MR. APPLEBY: Yes, you may. And I will wear the Page 47 1 microphone, so I can come up to the board. 2 Q. (By Mr. Appleby) With regard to the Tiedemann 3 reference itself, did you find that the Tiedemann 4 reference disclosed what we call the preamble of Claim 5 1? 6 7 We're looking at Claim 2, and you understand Claim 2 is dependent on Claim 1? 8 A. That's correct. 9 Q. And what does that mean? 10 A. That's a shorthand way, that's another one of 11 those things I had to learn. 12 all the claims as independent claims. 13 Why didn't they just write Well, it's a shorthand way of writing a claim. 14 So if you see a dependent claim, like we have here in 15 Claim 2, you just include everything with Claim 1, like 16 it was all written for Claim 2, and then add the part 17 for Claim 2. 18 remember it. 19 At least that's the easiest way I use to It's just so they don't use a lot of pages, is 20 the way I figure it of rewriting the same text over and 21 over. 22 23 24 25 So if you have a dependent claim, we have to first look at the components of the claim it depends on. And it says it depends on Claim 1, so that's what we'll look at first. Page 48 1 2 Q. Okay. So did you find the preamble of Claim 1 in Tiedemann? 3 A. Yes, I did. 4 Q. And could you explain that? 5 A. Tiedemann is -- has -- you need to turn it a 6 little more. 7 Q. Sorry, Mr. Lanning. 8 A. I'm struggling to stay at the microphone and 9 seeing the slide. 10 There you go. Tiedemann describes a transmission controller 11 for processing the data items transmitted over the 12 wireless link. 13 paging channel. 14 15 Well, that would be at least for the And then to the subscriber terminal, that's to the mobile phone. 16 And then a single frequency channel, the CDMA 17 system that he's describing uses a single frequency 18 channel, and it's transmitting data items pertaining to 19 the plurality of frames, meaning to the different cell 20 phones. 21 Q. 22 So can I check this that was found in the preamble? 23 A. Yes. 24 Q. So did you find an orthogonal code generator 25 in the Tiedemann reference? Page 49 1 A. Yes, and I pointed to it. 2 again. 3 I'll point to it see right there in blue. That would be the Walsh code generator that you 4 Q. So can I check the orthogonal code generator? 5 A. Yes. 6 Q. And did you find a first encoder? 7 8 9 This is the first encoder element in the Tiedemann reference? A. Yes. And I'll circle this one, and it is a circle with a plus in it. That's the encoder. You see 10 the arrow that goes from the Walsh code generator, 11 that's where it goes down and it's encoded with other 12 codes. 13 That's what that means. Specifically, it's an exclusive -- or a gate, 14 but we did put a circle with a plus in there. 15 means it's included. That 16 Q. And may I check that element? 17 A. Yes. 18 Q. And did you find a TDM encoder arranged to 19 apply time division multiplexing techniques in the 20 Tiedemann reference? 21 A. Yes. As I explained earlier, this slide shows 22 that this is the TDM techniques that they're explaining 23 here; that it has all three components. 24 25 It has -- it has the interval of time; it has the predetermined frame; and it has one or more Page 50 1 characteristics associated with the data item, which 2 would be the actual identification of the cell phone. 3 Q. And so can I check that off? 4 A. Yes. 5 Q. Now, moving down the Claim 2, did you find -- 6 7 8 9 10 MR. APPLEBY: Can I have the slide back up? Q. (By Mr. Appleby) Did you find an overlay code generator in the Tiedemann reference? A. 11 One more slide. Yes. There it is. If we can look -- if we look at this box 12 in purple, it actually says overlay code encoder as 13 required by the claim. 14 Q. So may I check that box? 15 A. Yes. 16 I should be clear. This box has both the 17 overlay code generator, which is the first part of Claim 18 2, and it has the second encoder, which is the overlay 19 encoder. 20 Q. So I can check both of those? 21 A. Yes. 22 Q. And Claim 2 is a preamble, a transmission 23 24 25 controller as claimed in Claim 1. A. Do we have that? Yes, because we have the same transmission controller in Claim 1 that I described. Page 51 1 Q. So I may check that? 2 A. Yes. 3 Q. And in the Tiedemann reference, are the -- is 4 the overlay code -- is the overlay encoding done on the 5 same channels that the TDM techniques are done? 6 A. No, they're not. 7 Q. So they are on separate channels? 8 A. Yes. 9 They're all orthogonal channels, but because the way a cellular system needs to work, you 10 have two different types of channels, at least two. 11 type are the control channels and paging channel is part 12 of the control channels. Then you have what we refer to 13 as the traffic channels. The traffic channels are used 14 to carry the voice conversation. 15 One And so there's two different types of 16 channels. 17 Tiedemann for the traffic channels, and the TDM encoder 18 is used for the paging channel. 19 Q. And so the overlay encoder is used in And looking back at our figure, did you -- did 20 you compare Figure 4-2 from Tiedemann that we see from 21 the overlay patents? 22 A. Yes, I did. And you can see there the 23 comparisons with the color codes for the relevant 24 portions of each diagram. 25 Q. And we see the overlay code generator and Page 52 1 second encoder in that comparison? 2 A. Yes. 3 Q. Where is that? 4 A. The overlay encoder with the -- in the purple 5 box here, and you see the overlay code generator and 6 encoder here in the pink. 7 8 9 Q. And we also see the orthogonal code generator and first encoder in that comparison? A. Yes. Here is the overlay code generator. 10 Here's the overlay code encoder. 11 code generator. 12 (indicating). 13 Q. Here is the overlay Here is the overlay code encoder So now I'd like to -- so now that we've 14 checked all of Claim 2, what is your opinion as to 15 whether Claim 2 is anticipated by the Tiedemann 16 reference? 17 A. The '326 patent, Claim 2 is anticipated, 18 because I've shown you that it actually describes each 19 and every limitation of Claim 2, which includes Claim 1. 20 21 22 So my opinion is that Tiedemann anticipates Claim 2. Q. Okay. 23 claim. 24 So now I'd like to move to another patent, Claim 2. 25 Asserted claim? I'm going to move to the '211 And could you tell us what's different -- what Page 53 1 difference, if any, exists between the '211 patent, 2 Claim 2 and the Claim 2 we just saw in the '326 patent? 3 A. I realize you've heard this before, but if you 4 can think of the '326 as the transmitter or the base 5 station. 6 mobile phone. The '211 claims are the receiver for the And that's why you see a difference. 7 Instead of an encoder, there's a decoder. 8 has to do the reverse function at the mobile phone. 9 10 11 12 Q. Okay. It So did you find the preamble of Claim 1 in -- of the '211 patent in Tiedemann? A. Yes, I did, for the same reasons I specified earlier for the '326, Claim 2. 13 Q. So may I check that? 14 A. Yes. 15 Q. And did you find the orthogonal code generator 16 and decoder elements of Claim 2 in the Tiedemann 17 reference? 18 19 A. Yes, I did. And, again, to remind you that's that Walsh code generator and the encoder right there. 20 Q. And so may I check those? 21 A. Yes. 22 Q. And did you find a TDM decoder disclosed in 23 24 25 the Tiedemann reference? A. Yes, I did, for the same reasons. that's the paging channel. Again, Page 54 1 2 Q. And the Tiedemann reference discusses both the base station and the mobiles -- 3 A. Yes. 4 Q. -- is that correct? 5 A. Yes. 6 Q. And so '211 would be directed to the mobiles, 7 and the '326 is directed to the base station? 8 A. That's correct. 9 Q. So moving down to Claim 2, do we find a Yes. 10 reception controller as in Claim 1 in the Tiedemann 11 reference? 12 A. Yes. 13 Q. And why is that? 14 A. Tiedemann describes it, and this would be the 15 same controller that we discussed earlier. 16 block diagram is the controller, essentially. 17 Q. This whole And did we -- did you find an overlay code 18 generator and second decoder in Tiedemann for Claim 2 of 19 the '211 patent? 20 21 A. Yes. This right here would be that box. It performs both of those functions. 22 Q. And may I check those? 23 A. Yes. 24 Q. So what is your opinion as to whether Claim 2 25 of the '211 patent is anticipated by Tiedemann? Page 55 1 2 3 4 A. Claim 2. Q. Okay. So let me move to another claim. Let me go to the '211 patent, Claim 5. 5 6 The Tiedemann indeed does anticipate the '211, And this is -- the '211 patent is directed to a subscriber terminal or mobile unit, right? 7 A. Yes. 8 Q. So let's go through this. 9 10 Did you find a subscriber terminal of the wireless communication system in Tiedemann? 11 A. Yes, I did. 12 Q. And why is that? 13 A. It essentially is this whole block diagram 14 that it's describing. 15 Q. So may I check that? 16 A. Yes. 17 Q. And did you find the orthogonal code generator 18 and first decoder of Claim 5? 19 different from what we saw before? 20 A. 21 Claim 2. 22 No. Are these elements any They're the same elements as the '211, the same. 23 24 25 So they should look familiar to you. They are So I believe we should check those as well. Q. And is the TDM decoder element any different in Claim 5 from the element we saw in Claim 2? Page 56 1 2 3 A. No. It's the same as Claim 2. So we should check that as well. Q. And is -- the overlay code generator and 4 second decoder elements, are they any different than 5 what we saw in Claim 2? 6 7 8 9 10 11 A. No. So, again, we should be able to check those. Q. color. Now, this last element we see is a different Is that because Claim 5 has added another element? A. Yes. This essentially is the only difference 12 between Claim 2 and Claim 5. 13 Rademacher-Walsh codes. 14 15 16 Q. Claim 5 adds the use of And did you find those in the Tiedemann reference? A. Yes. As the box actually says, there's the 17 Walsh codes that are used for that. And Walsh codes and 18 Rademacher-Walsh codes are the same. Some people just 19 call them by both names or just one name for short. 20 Q. So in -- can I check that? 21 A. Yes. 22 Q. And so what is your opinion as to whether 23 Claim 5 of the '211 patent is -- is anticipated by the 24 Tiedemann reference? 25 A. Tiedemann anticipates Claim 5 of the '211 Page 57 1 patent. 2 Q. Okay. Now I'd like to move to another claim. 3 And this is the '326 patent, Claim 5. 4 these elements that we see in Claim 5 the same as the 5 elements that we saw in the '326 patent, Claim 2? 6 A. Yes. And are any of If you look at the -- from the 7 beginning, it's referred to as the preamble, to the 8 limitations all the way down the blue, the orange, and 9 the purple. 10 11 All of those limitations are essentially the same, if not exactly the same, as the '326, Claim 2. Q. And so have we found those elements in the 12 Tiedemann reference for the same reasons that you gave 13 previously? 14 A. Yes. So I believe we can check all the way 15 down until you get to the last two colors. 16 be different. 17 Q. Those will And with respect to the last two, I'd actually 18 like to start with the last one, the green one: 19 the set of orthogonal codes comprise a set of 20 Rademacher-Walsh codes. 21 22 Wherein Did you find that in Tiedemann? A. Yes, I did. As I just discussed for the '211, 23 Claim 5, that the Rademacher-Walsh codes are there, 24 again, as described in this box. 25 Q. So may I check that? Page 58 1 A. Yes. 2 Q. Now, the last element that we have yet to 3 4 check is storage. A. What is that directed to? This limitation requires that the set of 5 orthogonal codes -- and what it means by the set of 6 orthogonal codes -- in this case, it would be those 64 7 orthogonal codes that are 64-bits long -- are stored. 8 And those are stored in this Walsh code generator. 9 10 11 Q. And why do you believe that the Tiedemann reference discloses storage? A. Because the 64 Walsh functions are fixed. 12 It's very straightforward, and it's the only feasible 13 way to actually use the 64 Walsh code functions, is to 14 just simply store them in memory and pull them out. 15 It's a very small amount of memory. It's 16 only -- it only takes 512 bytes of memory to store all 17 64 of these codes. 18 To give you an idea -- you probably don't have 19 anything to relate that to. 20 on your smartphone or your computer or one of the kids 21 have it stored, it uses at least 3 million bytes for one 22 of those songs. 23 If you have a song stored To store these Walsh codes would be only 512 24 bytes. 25 3/100ths of a second, to give you a comparison of how So if you were to play 512 bytes, that's Page 59 1 small it is to store this chip. 2 Q. Okay. 3 A. Yes. 4 Q. So what is your opinion as to whether the 5 So may I check that? '326, Claim 5 is anticipated by Tiedemann? 6 A. 7 patent. 8 Q. 9 Tiedemann anticipates Claim 5 of the '326 Okay. Sir, I think we've gone through four of the six asserted claims, and we've found those to be 10 anticipated by Tiedemann. 11 in the timeframe, can we explain what we have on this 12 slide? 13 A. And just to put -- put this This shows -- we've already looked at and saw 14 where IS-95 came out in 1993, and IS-95-A in 1995. 15 I've added Tiedemann on the timeline to show that it was 16 published in 1994, the middle of 1994, which is more 17 than two years, two-and-a-half years before the Airspan 18 patents. 19 Q. 20 obviousness. 21 Now, you explain that for us? 22 A. Okay. So I want to move to your opinions on What does -- what does obviousness -- can Obviousness is different than anticipation. 23 If you recall, for anticipation, the document has to 24 disclose each and every limitation. 25 For obviousness, there's -- there's two tests. Page 60 1 And obviousness can be for one document or one 2 publication, and it would be obvious to a person of 3 ordinary skill in the art that you could make extensions 4 or that the modification could be made to meet the same 5 requirements listed by the invention. 6 Or there's another way to show obvious (sic), 7 and that's where I can combine two or more references 8 together to show that those two references would be 9 obvious to be combined together that would then disclose 10 11 12 13 or describe the invention that's in the claims. Q. So do you have an opinion as to who a person of ordinary skill in the art would be? A. A person of ordinary skill in the art is a 14 legal definition that I need to use. 15 hypothetical person. 16 means a person that's knowledgeable, has an appropriate 17 education, working in the industry looking at these 18 documents. 19 It's for a But typically, just in English, it I've provided the specific type of degree and 20 education that they need to have, in my mind, and the 21 type of experience. 22 In the second bullet, you'll see that I 23 explain that they need to have two or more years 24 experience in the design and configuration of cellular 25 networks. They need to have some knowledge of what a Page 61 1 cellular network is like. 2 And they also need to be familiar with the 3 second-generation and third-generation cellular -- 4 cellular networks. 5 ordinary skill also has access to all the prior art. 6 7 8 9 And this hypothetical person of It's like that they have a knowledge and know that that prior art exists. Q. So let's turn to Claim 9 and -- of the '326 patent and Claim 11 of the '819 patent. 10 And are those dependent claims? 11 A. Yes. 12 Q. And Claim 9 of the '326 patent depends on 13 Yes, they are. Claim 5? 14 A. That's correct. 15 Q. And we've already found that Claim 5 has all 16 the elements that Tiedemann shows, all the elements of 17 Claim 5; is that right? 18 A. That's correct. 19 Q. So what does Claim 9 require? 20 A. Claim 9 requires that a -- that the control 21 channel, or the acquisition channel, as specifically 22 listed here, includes overlay codes instead of time 23 slots, or TDM encoders, or that TDM techniques as we 24 describe. 25 Q. And is that disclosed by Tiedemann? Page 62 1 A. No, it's not. 2 Q. And why do you say that? 3 A. Tiedemann applies the overlay codes only to 4 the traffic channels for increasing the data-rate or 5 slowing the data-rate down on the traffic channels that 6 I described that were used for either data connections 7 or voice connections. 8 applying overlay codes to a paging channel. 9 Q. Tiedemann does not describe Why do you believe Claim 9 -- I should say do 10 you believe that Claim 9 would be obvious in light of 11 Tiedemann? 12 A. Yes. This is the first test. This would be 13 just a single reference, obviousness. 14 skill in the art, reading Claim 9 in Tiedemann, would 15 understand that it would be obvious to modify Tiedemann 16 to just apply the overlay codes to the paging channel, 17 because that -- or instead of the TDM encoder because 18 overlay codes are already being used. 19 is there. 20 diagram. 21 22 Q. One of ordinary All the circuitry As you saw, that circuitry was in the block And so is it your conclusion that Claim 9 is obvious in light of the Tiedemann reference? 23 A. Yes. 24 Q. So let me move to Claim 11 of the '819 patent. 25 And Claim 11 depends from Claim 7 of that Page 63 1 patent; is that right? 2 A. Yes, that's correct. 3 Q. Now, looking at Claim 7, are -- the elements 4 in Claim 7, have we seen those elements already today? 5 6 A. These are all of the elements -- these elements are in Claim 5 of the '326, I believe. 7 8 Yes. Q. Yes. And we have already found all of those elements in the Tiedemann reference; is that right? 9 A. That's correct, yes. 10 Q. And Claim 11, what does Claim 11 add to Claim A. Claim 11 is like the opposite of Claim 9. 11 7? 12 13 And if we can read it, it says: A TDM encoder 14 arranged to apply time division multiplexing techniques, 15 TDM techniques, to data items sent over the traffic 16 channel. 17 Well, remember Tiedemann puts TDM on the 18 paging channel, but he doesn't put TDM on the traffic 19 channels. 20 He put overlay codes. 21 22 23 So this is somewhat just the reverse of Claim 9. Q. And so did you find Claim 11 disclosed by Tiedemann? 24 A. No, I did not. 25 Q. And why not? Page 64 1 A. Because Tiedemann does not have a TDM encoder 2 that would be used for the traffic channels. 3 just the overlay encoder. 4 5 Q. He uses Do you believe that Claim 11 would have been obvious in light of Tiedemann? 6 A. Yes, I do. 7 Q. And why is that? 8 A. Because, again, the same circuitry is all 9 there. If one of ordinary skill in the art wanted to 10 add that TDM functionality, all those slots that we saw 11 on the paging channel, if they wanted to just add slots 12 on the traffic channels, they would just simply use the 13 same circuitry to do that. 14 Q. And what would the motivation or purpose of 15 one of ordinary skill in the art have for modifying 16 Tiedemann that way? 17 A. If they wanted to actually divide the traffic 18 channels into different slots so that they could support 19 different users for each overlay code, that would be the 20 motivation to -- 21 Q. And -- 22 A. -- make that modification. 23 Q. If Tiedemann shows that TDM encoder on a 24 control channel, why would it have been obvious to one 25 of skill in the art to use that on a traffic channel? Page 65 1 A. Again, for the same reasons you have the TDM 2 encoder on the paging channel, so that you can actually 3 divide that orthogonal channel up into multiple time 4 slots. 5 Q. If -- would one of ordinary skill in the art 6 recognize that if you could use a Tiedemann -- TDM 7 encoder on a paging channel, that you could also use it 8 on a traffic channel? 9 A. Yes. It's -- everything is the same 10 essentially. 11 this encoder or this encoding circuitry for my traffic 12 channels. 13 Q. It's just the choice, do I want to engage In looking back at Claim 9, would one of 14 ordinary -- Claim 9 of the '326 patent, would one of 15 ordinary skill in the art recognize that if you did 16 overlay coding on a traffic channel, you could also use 17 that on a control channel? 18 A. Again, it's all the same circuitry. Tiedemann 19 has described how you do it on a traffic channel. 20 there was a reason that I wanted to divide up the 21 channel for the paging channel using overlay codes, I 22 could do the same thing with the same circuitry, same 23 block diagram. 24 25 Q. reference. Okay. So now I'd like to move to another If Page 66 1 2 3 Can you describe what we're looking at here on Slide 28? A. This was a patent that was -- the inventor is 4 Gitlin, Richard Gitlin. 5 Gitlin. 6 I should say Lucent. 7 He was an employee of Bell Labs. 8 pioneers. 9 10 11 You've heard of Dr. Richard He was part of the Bell Labs or the Alcatel -I think it was in the Lucent days. He's one of the And this is a patent that describes how CDMA -- how to combine CDMA with TDM. Q. 12 So let's look forward -- move ahead one slide. And can you describe what Gitlin -- what 13 Gitlin disclosure exists, if any, about CDMA plus TDM 14 techniques? 15 A. All right. If we look -- so the CDMA or the 16 orthogonal codes, the CDMA, is shown here. And it's 17 labeled code space and it's C0 through C7. Those refer 18 to 7 -- 8 different codes. 19 8 different codes. 20 Since we start at 0, there's Then he also has time slots going sideways on 21 the horizontal from S0 to S6. 22 with slots. 23 24 25 Q. CDMA plus TDM. And did you find TDM techniques as construed by the Court? A. So he's combining codes Yes. Page 67 1 Q. Could you explain that? 2 A. You have TDM techniques. 3 4 So there's a frame. So we need three pieces, right? We need a -- we need this slot, or we need the increment of time. 5 And we see all kinds of different slots. This 6 would be the slots (indicating) that are shown from S0 7 to S6. 8 through S6. And then the frame period would be from S0 9 That's the frame period. And the third thing we need for that 10 construction -- for the Court's construction for TDM 11 techniques is a characteristic of the data. 12 you look down at the bottom of Gitlin, you'll see that 13 the characteristics of data have to do with whether you 14 have high-speed users, medium-speed users, or low-speed 15 users, and also the user ID. 16 17 Well, if So there's two different characteristics associated with the data item. 18 Q. And why would the users need different speeds? 19 A. Users have different speeds, want to pay 20 different amounts, or they may only want to send a fax 21 part of the time, and then want lower speed for voice 22 calls or lower speed data connections at other times. 23 Q. Okay. So let's look quickly at the claim -- 24 actually, yeah, let's look quickly at the claim 25 language. Page 68 1 And did you find a -- the preamble satisfied 2 by -- actually, it says Gitlin plus Tiedemann. 3 would you combine Gitlin and Tiedemann? 4 A. Why Because Gitlin doesn't have the overlay codes. 5 So, essentially, for at least the reason -- there's two 6 different reasons; but the main reason is that Gitlin 7 doesn't describe overlay codes. 8 earlier, Tiedemann does. 9 But as I showed you So in combining Gitlin with Tiedemann, Gitlin 10 gives us the CDMA plus TDM; Tiedemann gives us the 11 overlay codes. 12 Additionally, Tiedemann also gives us the 13 Walsh codes, if we need to show for the orthogonal codes 14 or CDMA. 15 Tiedemann gives it -- gives us the orthogonal codes. 16 17 Q. I have it in two places. Okay. Both Gitlin and So does the Gitlin plus Tiedemann combination disclose the preamble of Claim 1? 18 A. Yes. 19 Q. And may I check that? 20 A. Yes. 21 Q. And does -- did you find in Gitlin an 22 orthogonal code generator -- let me start over. 23 Did you find in a combination of Gitlin and 24 Tiedemann an orthogonal code generator and a first 25 encoder? Page 69 1 A. Yes. 2 Q. And can you explain that? 3 A. That -- well, we can look at it two ways, but 4 it's at least in Tiedemann. 5 that there is an orthogonal code generator and the first 6 encoder. 7 As I've already explained, And if you remember, it's the box with Walsh 8 encoder or Walsh generator, and then the circle with the 9 plus in it. 10 Q. And we saw C -- CDMA in Gitlin, right? 11 A. Yes. 12 Q. Okay. 13 A. Yes. 14 Q. And did we find a TDM encoder arranged to 15 16 And Gitlin is for CDMA as well. May I check those? apply time division multiplexing techniques in Gitlin? A. 17 Yes, we did. As you can see with the slots that are here, 18 this would be the TDM encoder. 19 encoder in Tiedemann for the paging channels. 20 doubled up there as well for the TDM encoder. We also find a TDM So we've 21 Q. And may I check that? 22 A. Yes. 23 Q. And the elements of Claim 2, the overlay code 24 generator and the second encoder, where do we find 25 those? Page 70 1 A. Those are found in Tiedemann and not Gitlin. 2 Q. Okay. 3 4 5 And why would it have been obvious in your mind to combine Gitlin and Tiedemann? A. Because both of these patents are in regard to cellular systems, specifically, CDMA wireless systems. 6 And Gitlin was from Bell Labs, AT&T Bell Labs. 7 Tiedemann was from Qualcomm. 8 the early 1990s, they were working together on CDMA 9 solutions. 10 And as you've heard, in So there's multiple reasons why one of 11 ordinary skill in the art would combine Gitlin with 12 Tiedemann. 13 Q. Okay. 14 A. Yes. 15 Q. And so what is your conclusion about whether So may I check the elements of Claim 2? 16 Claim 2 of the '326 patent is obvious over Gitlin plus 17 Tiedemann? 18 19 20 A. The combination of Gitlin plus Tiedemann invalidates Claim 2 of the '326 patent. Q. And if we look at Claim 5 of the '326, we 21 found all of these elements in Gitlin and Tiedemann 22 already; is that correct? 23 A. Yes, that's correct. 24 Q. And would your opinion of obviousness, 25 combining Tiedemann and Gitlin, be to render obvious Page 71 1 2 3 Claim 5 of the '326 patent? A. Yes. The combination of Gitlin plus Tiedemann invalidates Claim 5 of the '326 patent. 4 Q. For all the reasons you've already given? 5 A. Yes, that's correct. 6 Q. And with respect to -- with respect to the 7 '211 patent, Claim 2, we found all these elements in 8 Gitlin plus Tiedemann; is that correct? 9 A. That's correct. 10 Q. And so what's your opinion as to whether 11 Gitlin plus Tiedemann would render obvious Claim 2 of 12 the '211 patent? 13 A. That the combination of Gitlin plus Tiedemann 14 renders obvious or invalidates Claim 2 of the '211 15 patent. 16 Q. And with respect to Claim 5 of the '211 17 patent, we've found all those elements in Gitlin plus 18 Tiedemann already, as well, have we not? 19 A. That's correct. 20 Q. And what would your opinion be as to whether 21 Claim 5 of the '211 patent would be rendered obvious by 22 Gitlin plus Tiedemann? 23 A. That Claim 5 of the '211 patent is rendered 24 obvious or invalid, based on the combination of Gitlin 25 plus Tiedemann. Page 72 1 Q. And what's your opinion as to whether Claims 9 2 and -- of the '326 patent and Claim 11 of the '819 3 patent would be rendered obvious by Gitlin plus 4 Tiedemann? 5 6 7 A. That both of those claims would be rendered obvious by the combination of Gitlin plus Tiedemann. Q. 8 Okay. 9 10 So let me talk about one more thing. Now, you heard Dr. Wells point to OVSF codes in the -- as evidence of overlay codes in the accused systems. You've heard that testimony, right? 11 A. Yes. 12 Q. Were OVSF codes known before the Airspan 13 patents? 14 A. Yes, they definitely were. 15 Q. And where were they known before the Airspan 16 17 patents? A. This is a reference that you've seen at least 18 a couple of times, at least I remember seeing it a 19 couple of times, from Qualcomm, co-founder Klein 20 Gilhousen. 21 Q. And this describes OVSF codes. And could you explain how Gilhousen 22 describes -- how the Gilhousen OVSF codes relate to what 23 we see in the W-CDMA standard? 24 25 A. Yes. Again, this is another slide that you've seen a couple of times, so I won't spend too much time Page 106 1 CERTIFICATION 2 3 I HEREBY CERTIFY that the foregoing is a 4 true and correct transcript from the stenographic notes 5 of the proceedings in the above-entitled matter to the 6 best of our abilities. 7 8 9 /s/ Shea Sloan SHEA SLOAN, CSR 10 Official Court Reporter State of Texas No.: 11 Expiration Date: 3081 12/31/14 12 13 /s/ Judith Werlinger 14 JUDITH WERLINGER, CSR Deputy Official Court Reporter 15 State of Texas No.: Expiration Date 16 17 18 19 20 21 22 23 24 25 731 12/31/14

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