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` D. Hartogs
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________________________
`ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,
` Petitioner
` v.
` INTELLECTUAL VENTURES II LLC,
` Patent Owner
` _____________________________
` Case No. IPR2014-01185
` Patent No. 7,269,127
`Title: PREAMBLE STRUCTURES FOR SINGLE-INPUT,
` SINGLE-OUTPUT (SISO) and MULTI-INPUT,
` MULTI-OUTPUT (MIMO) COMMUNICATION SYSTEMS
` _____________________________
`
` DEPOSITION OF DIRK HARTOGS, Ph.D.
` Washington, D.C.
` July 29, 2015
`
` Reported by: Mary Ann Payonk
` Job No. 95835
`
`TSG Reporting - Worldwide 877-702-9580
`
`ERIC-1034
`Ericsson v. IV, IPR2014-01185
`Page 1 of 210
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`Page 2
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` July 29, 2015
` 9:14 a.m.
`
` Deposition of DIRK HARTOGS, Ph.D, held
`at the offices of Sterne Kessler Goldstein & Fox,
`1100 New York Avenue, N.W., Washington, D.C.,
`pursuant to Notice before Mary Ann Payonk,
`Nationally Certified Realtime Reporter and
`Notary Public of the District of Columbia,
`Commonwealth of Virginia, States of Maryland
`and New York.
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`APPEARANCES:
`ON BEHALF OF PETITIONER:
` JOHN RUSSELL EMERSON, ESQUIRE
` J. ANDREW LOWES, ESQUIRE
` HAYNES AND BOONE
` 2323 Victory Avenue
` Dallas, Texas 75219
`
`ON BEHALF OF PATENT OWNER:
` BYRON PICKARD, ESQUIRE
` STERNE KESSLER GOLDSTEIN & FOX
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
`
`ALSO PRESENT:
` Jasmin Rice, legal video specialist
` Steven W. Peters, Ph.D., Patent Agent
` Sterne Kessler
` James Hietala, Esquire, in-house
` counsel, Intellectual Ventures
` (By phone)
`
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` THE VIDEOGRAPHER: This is the
`start of videotape labeled number 1 in
`the videotaped deposition of Dirk
`Hartogs taken in the matter of Ericsson,
`Inc. et al. versus Intellectual Ventures
`II LLC in the United States Patent and
`Trademark Office before the Patent Trial
`and Appeal Board, Case IPR2014-01185,
`U.S. Patent Numbers 7,269,127.
` Today's date is July 29, 2015 and
`the time is approximately 9:15 a.m. My
`name is Jasmin Rice here on behalf of
`TSG Reporting, Inc. I'm the legal
`videographer.
` The court reporter is Mary Ann
`Payonk, also in association with
`TSG Reporting, Inc.
` Will counsel please introduce
`themselves for the record at this time?
` (Whereupon, counsel placed their
`appearances on the video record.)
` THE VIDEOGRAPHER: Will the court
`reporter please swear in the witness.
`
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`DIRK HARTOGS, Ph.D.,
` called as a witness, having been duly
` sworn, was examined and testified as
` follows:
` EXAMINATION
`BY MR. EMERSON:
` Q. Good morning, Dr. Hartogs.
` A. Good morning.
` Q. How are you?
` A. Just fine. How are you doing?
` Q. Are you feeling well today?
` A. Yes.
` Q. Any reason why you couldn't testify
`truthfully and completely this morning?
` A. No, there's not.
` Q. No drugs in your system or anything
`like that?
` A. No.
` Q. No medications?
` A. Nothing that would affect this.
` Q. That would affect you? Got you.
` A. Yeah.
` Q. When was the last time you were
`deposed?
`
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` A. Couple of years ago. I'm not sure
`when.
` Q. And what was that in connection with?
` A. I'm -- yeah, I'm -- I'm not sure.
` Q. Well, were you serving as an expert
`witness in a --
` A. Yes.
` Q. -- intellectual property matter?
` A. Yes.
` Q. This deposition that you were
`involved in a couple of years ago, you were an
`expert witness in an IP dispute?
` A. That's correct. Yes.
` Q. Okay. How many times approximately
`have you been deposed?
` A. I'm -- I'm not sure. 10, might be a
`little bit more.
` Q. I'm going to hand you what has been
`marked as Exhibit 2009, which is a copy of your
`declaration in this IPR. And I'll go ahead and
`hand you what's been marked as Exhibit 2010,
`which is the CV that you submitted --
` A. Okay.
` Q. -- with your declaration in this IPR.
`
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` Let me ask you this: Have you ever
`served as an expert witness in an IPR?
` A. No.
` Q. So this is your --
` A. This -- this is the first one, yes.
` Q. How is it that you came to be engaged
`by Intellectual Ventures?
` A. I do expert witness work. Some of
`that is because attorneys contact me directly;
`some is initialized when attorneys contact an
`intermediary. And I do work for several
`intermediaries. In this case, there was such
`an intermediary --
` Q. Who's that?
` A. -- and it -- IM -- IMS Experts.
` Q. I'm familiar with them.
` Have you ever served as an expert
`witness or a consultant for Intellectual
`Ventures before this case?
` A. Actually, I may want to slightly
`amend my previous answer. There was another
`IPR involving intellectual property --
`Intellectual Ventures that also started last
`year, but it did not get to the point of
`
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`deposition. But I assisted in that matter.
` Q. Okay.
` A. Same -- same party, same attorneys,
`same intermediary. And I -- okay.
` Q. Okay. Okay. So other than these two
`IPRs on which you have worked --
` A. Uh-huh.
` Q. -- for Intellectual Ventures, have
`you had any other cases or matters for which
`you have consulted for Intellectual Ventures?
` A. No.
` Q. No? Okay.
` Let's take a look at your CV --
` A. Okay.
` Q. -- which is Exhibit 2010.
` And on the first page there under
`"Professional Experience," you list '96 to
`present, Eager & Eager, LLC; and then from '85
`to '90, CaliforniaTechnologyExperts.com.
` Do you see that?
` A. I do.
` Q. Now, I just want to make sure I
`understand this. This is -- this employer
`here, Eager & Eager LLC, it says d/b/a, and
`
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`then the next line,
`CaliforniaTechnologyExperts.com, that's the
`same company; right? Or is it?
` A. That's the same organization.
` Q. Same?
` A. Eager & Eager has several d/b/a's.
`This is one of them.
` Q. Okay. And so you worked for Eager &
`Eager d/b/a CaliforniaTechnologyExperts.com
`from '96 until present; correct?
` A. At -- as a minimum. And I point out
`that Eager & Eager's the current name of the
`organization. It had other names previously.
` Q. But it's the same entity?
` A. It's the same entity, structured as
`an LLC. Originally, it was a d/b/a.
` Q. Okay. And it's the same entity that
`you worked for from '85 to '90; right?
` A. Yes. I worked for that entity full
`time for the years shown, but I have also
`worked part-time for that entity for all years
`from I believe 1983 to the present. So even
`when I was working as an employee full-time at
`Canon, for example, I was doing some work for
`
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`what became Eager & Eager.
` Q. Okay. Would you turn to your
`declaration, please, on page 3, paragraph 8?
` A. Okay.
` Q. And there, it says: "since 1995, I
`worked as a -- I have worked as a technologist
`supporting major intellectual property
`disputes."
` Do you see that?
` A. Yes, I do.
` Q. Is -- I'm just trying to correlate
`that with the professional experience on the
`first page of your declaration that we see
`here.
` A. I -- I understand.
` Q. Yeah, so could you explain the
`discrepancy there?
` MR. PICKARD: You need to ask a
` question. What's the question?
`BY MR. EMERSON:
` Q. Well, 1995 -- in paragraph 8 of your
`declaration, it says since 1995, you have been
`working as a technologist --
` A. Yes.
`
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` Q. -- supporting major intellectual
`property disputes.
` And you say '96 to present, in -- on
`your CV. So can you explain why one says '96
`and the other says '95?
` A. Yes.
` Q. Okay.
` A. I assume you want me to do so.
` Q. Yes.
` A. Yeah.
` Q. Thank you.
` A. The -- the reason 1995 is in there is
`that while I indicated I was doing some of this
`work part-time even when I was working as an
`employee at Canon, from 1990 to '96, for
`example, there was a case in 1995 that required
`that I testify. So I got up to a level beyond
`what some of the other work was. And not only
`did I have to testify, but I had to go spend a
`week or two in Singapore to do it.
` So basically, I burned my vacation
`time at Canon and went to Singapore and did
`that. But I thought it was -- by itself was a
`significant enough endeavor that '95 is
`
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`probably a better date.
` Q. Understood.
` Have you ever testified in a trial in
`District Court in the United States?
` A. Yes.
` Q. How many times, approximately?
` A. Not many. Maybe two.
` Q. What about at the ITC?
` A. Never.
` Q. Never?
` This thing -- and I'm just curious.
`This thing in Singapore, was that in the
`Singaporean court or were you there just for
`depositions and things like that?
` A. It was a Singaporean court. You had
`Monday morning to learn how their system
`differed from ours and then you had Monday
`afternoon to be cross-examined by opposing
`counsel. Interesting experience.
` Q. How did you like Singapore?
` A. I thought it was wonderful to visit
`but I would hate to live there because
`everything is so regimented. It's -- it's like
`a country that reminds you sort of Main Street
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`Disneyland or something.
` Q. Yeah. Back to your declaration.
` A. Uh-huh.
` Q. From -- well, back to your
`declaration also with your CV in front of you,
`so from '96 to the present, you've been working
`for Eager & Eager.
` A. Uh-huh.
` Q. Or Eager & Eager d/b/a
`CaliforniaTechnologyExperts.com. Anything else
`other than that work, this consulting work
`since 1996?
` A. No. Perhaps -- and I probably should
`indicate that some of the work done by Eager &
`Eager was not litigation or IP disputes but
`creating IP. For example, I was continuing to
`work at Canon as a consultant for at least part
`of that period.
` Q. And what sort of stuff did you work
`on for Canon as a consultant?
` A. Developing intellectual property.
`Some of it was telecommunications based; some
`of it is what we might broadly call image
`processing, things like what came to be
`
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`called -- the formal name is a QR code. It's a
`little square with all the dots on it that you
`see on packages.
` Q. Sure.
` Did any of this work with Canon
`involve cellular technology?
` A. No.
` Q. Did any of it involve OFDM standards?
` A. No.
` Q. In your litigation or dispute
`consulting work, how many cases have you had
`that relate to cellular technology?
` A. I don't know. It's --
` Q. Any?
` A. Yes.
` Q. Approximately how many?
` A. That, I can't say.
` Q. More than 10?
` A. 10 would probably be a reasonable
`estimate.
` Q. How many of those involved OFDM?
` A. Probably half.
` Q. So somewhere around five?
` A. Perhaps.
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` Q. Perhaps?
` A. But again, my -- my memory of exactly
`how many and what they involved is not perfect.
` Q. So aside from your consulting work
`with Eager & Eager, what work in industry have
`you done relating to OFDM?
` A. I'm a sole inventor of a great deal
`of the technology which ultimately became OFDM.
` Q. Are these the patents that you
`reference on the second page of your CV where
`you describe your work at Telebit Corporation?
` A. It includes those patents.
` Q. There are others as well?
` A. There's other work as well.
` Q. Other work as well? Is that also
`with Telebit?
` A. Most of it. Most of it, yes.
` Q. Other than your work with Telebit,
`what work in industry have you done relating to
`OFDM?
` A. It's hard -- it's hard to say. Bits
`and pieces, but nothing as dramatic as Telebit,
`certainly.
` Q. Was this bits and pieces done before
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`or after your work at Telebit?
` A. After. The technology did not exist
`before Telebit.
` Q. So then this would have been at Canon
`Research?
` A. Some of it at Canon but, for example,
`I can recall assisting a company called
`SnapTrack that was a cellular company that was
`acquired by Qualcomm. There was other work
`like that, but it was not -- it was not intense
`make-or-break-the-company kind of work.
` Q. And when was that?
` A. I'd have to check. I would say
`roughly the year 2000, but I could be mistaken.
` Q. Do you receive any royalties on the
`patents that you developed that relate to OFDM?
` A. No.
` By the way, I believe the patents
`have probably lapsed at this point, also.
` Q. So just to be more clear, have you
`ever received royalties for use of your OFDM
`patents?
` A. They were assigned to Telebit.
` Q. So other than your work at Telebit --
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` A. Uh-huh.
` Q. -- and your work at -- for
`SnapTrack --
` A. Uh-huh.
` Q. -- do you have any other experience
`in industry relating to OFDM?
` A. What -- I guess what do you mean by
`"industry"? I need to understand that better
`to answer the question.
` Q. Okay. Fair enough.
` I mean, really I'm just trying to
`distinguish it from your litigation consulting
`work.
` A. Okay. The overwhelming majority of
`work with OFDM has been litigation support in
`one way or another.
` Q. All right. Let's turn to page 4 of
`your declaration, please.
` A. Okay.
` Q. And specifically, I'm looking at
`paragraph 11.
` A. Okay.
` Q. Do you see that?
` A. I do.
`
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` Q. Is this a complete list of all the
`materials you reviewed during the preparation
`of your declaration?
` A. No.
` Q. What else did you review?
` A. Well, I explicitly mentioned some
`additional items even in paragraph 10
`immediately above it that are not included.
` I remember the CVs of the two
`inventors of the '127 patent. I reviewed
`those. I'm pretty sure there were other
`things.
` There's -- I should indicate, though,
`that there's nothing that was deliberately
`withheld from the list in paragraph 11. 11
`is -- was intended to be a complete list, but
`checking it later, it turned out it was not a
`complete list.
` Q. Well, let's explore that a little
`bit.
` A. Okay.
` Q. So you mentioned the materials that
`you list in paragraph 10.
` A. Uh-huh.
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` Q. Correct?
` A. That's correct.
` Q. So that would be some additional
`materials that you reviewed beyond the
`materials listed in paragraph 11; right?
` A. That's correct.
` Q. And you had the CVs of the inventors,
`the named inventors; correct?
` A. That's correct.
` Q. You reviewed those?
` A. Uh-huh.
` Q. Anything else that you can recall?
` A. Yes.
` Q. What?
` A. The filings of both parties in the
`IPR.
` Q. Okay. So that would be the petition?
` A. The petition, but then there were --
`there were responses and there were various
`follow-on documents filed by both you and by
`Intellectual Ventures, I believe.
` There may, of course, be other things
`that I don't recall at this point, but that's
`the top 14 or 15, whatever the number is I'm up
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`to now.
` Q. Where did you get the CVs for the
`inventors?
` A. I believe they're actually
`incorporated in one of the filings by the
`parties that I mentioned earlier, I think
`possibly by Intellectual Ventures filing with
`the Patent Office.
` Q. Okay. And do you know when those CVs
`were dated?
` A. No.
` Q. In the '127 patent, there are several
`documents that are incorporated by reference.
`Did you review any of those?
` A. I'd have to look at the '127 patent
`and those references to tell you.
` Q. So I'll hand you what's been marked
`as Exhibit 1001.
` A. Thank you.
` Q. The '127 patent.
` A. Great.
` Q. And I can direct you -- and feel free
`to take all the time you need to look at that,
`but I'll direct you to column 1 of the patent,
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`which is on what's marked at the bottom page 10
`of 19.
` A. Okay.
` Q. And you'll see at the very top
`there's a section called "Cross-reference to
`Related Applications." You'll see there are a
`couple of applications there.
` A. I do see that.
` Q. And those are incorporated by
`reference.
` A. Okay.
` Q. Did you review those documents?
` A. The provisional application, no. The
`other one, at some point last year, I may have.
`I'm not sure.
` Q. Did it form the basis for any of the
`opinions that you express in your declaration?
` A. I don't believe so, no.
` Q. Let's just be clear. You said "the
`provisional application." They're both
`provisionals.
` A. Oh, I'm sorry. I meant the second
`provisional. I'm sorry, I had not looked at
`the second provisional.
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` Q. You did not look at the second
`provisional?
` A. No. The first, I may have.
` Q. But you don't recall?
` A. I don't recall. And in terms of what
`was actually in the file wrapper, it's
`difficult to be absolutely certain at this
`point.
` Q. Did you view the file wrapper?
` A. Yes.
` Q. You know you did?
` A. Yes.
` Q. When did you do that?
` A. Last year.
` Q. Last year?
` Do you rely on anything from the file
`wrapper for the opinions expressed in your
`declaration?
` A. At this point, no, I don't believe
`so.
` Q. Do you rely on anything from either
`of these provisional applications to support
`the opinions expressed in your declaration?
` A. I don't believe so, no.
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` Q. And let's turn to column 12, please.
` A. Okay.
` Q. At the top, this is another document
`that is incorporated by reference, U.S. Patent
`Application, Serial Number 10/128,756.
` A. I see that.
` Q. Did you review that?
` A. I don't recall.
` Q. But in any event, that document
`doesn't form the basis or support any of the
`opinions expressed in your declaration; is that
`correct?
` A. I don't believe so, no.
` Q. Okay. The file wrapper is not listed
`among the documents that you state that you
`reviewed in your declaration. Any reason for
`that?
` A. I don't believe there's a reason
`other than oversight.
` Q. Okay. Let's turn to page 5 of your
`declaration. So there are three documents in
`front of you.
` A. Okay.
` Q. Are you there?
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` A. I'm there.
` Q. All right, let's look at paragraph
`14, please.
` A. Okay.
` Q. And there, you're talking about the
`level of one of ordinary skill in the art.
` A. I see that.
` Q. And the first bullet point reads:
`"The levels of education and experience of
`persons working in the field."
` Do you see that?
` A. Yes.
` Q. What field are you referring to?
` A. Concept and design associated with
`communications equipment, probably with a focus
`on cellular and 802.11, otherwise known as
`Wi-Fi, that type of thing.
` Q. Would the field necessarily include
`cellular technologies?
` A. There's a lot of crossover between
`different areas in the communication field.
`I'm not sure that it would -- that it would
`have to -- I would say it would be very useful
`if it included cellular and/or 802.11, called
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`Wi-Fi, and/or DSL, which isn't even a wireless
`technology but does use OFDM extensively as a
`minimum. There may be other things too.
` Q. Do you think that a person of
`ordinary skill in the art in 2001 would
`necessarily have some experience in or
`familiarity with OFDM?
` A. They might. As a minimum, I would
`expect they would have heard the term. As to
`whether they knew exactly what it meant or
`could practice in that area, I'm not sure.
` Q. So could you describe for me the
`basis that you have for understanding the level
`of ordinary skill in the art based on your
`experience at or around the time of invention
`in 2001?
` A. Could you repeat the question but
`rephrase it in some way?
` Q. Sure.
` You opine on what the person of
`ordinary skill in the art would be in 2001.
` A. Okay.
` Q. Correct?
` A. Yes.
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` Q. And I'm asking you, what makes you
`qualified to opine on that?
` A. I understand.
` I was working with people who were
`practicing the art, for example -- for example,
`cellular. I was -- I was exposed to and
`talking with people who dealt with groups of
`people that were developing products or
`technologies, I would have to say both the
`direct experience as well as litigation, but
`also meeting with both people that were
`practicing the art and people that were
`supervising them. And I -- I would say those
`are the things that contributed to that.
` Q. And when you say "practicing the
`art," what is the art that you're referring to?
` A. You -- well, for example, using OF --
`OFDM or -- for communications or just
`practicing other forms of communications
`technology.
` Q. Anything else?
` A. I would have to say just discussions
`with my son and some of his friends who were
`essentially at that level at that time.
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` In other words, they were making a
`living doing communications, and they had a
`master's, a recognized master's degree in
`electrical engineering, and they had perhaps
`five years of -- or maybe even a little bit
`more, six or seven years of experience in the
`field.
` Q. Your son and his friends, were they
`working on OFDM technology at the time? By the
`time, I mean 2001 or thereabouts.
` A. They were certainly interested in
`OFDM, and we had discussions about it. I'm not
`sure exactly what they were working on then.
` Q. Do you believe that you were a person
`of ordinary skill in the art relating to this
`technology of the '127 patent in 2001?
` A. I would say these people were people
`of ordinary skill in the art. In fact, they
`might even have had a little more skill than
`the average person.
` Q. Do you believe that you were a person
`of ordinary skill in the art in a relevant
`field in 2001?
` A. I'm sorry, do I believe that --
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` Q. You were a person of ordinary skill
`in the art in --
` A. Oh, that I was?
` Q. -- 2001, yeah.
` A. At least, yes. I believe so.
` Q. Do you think you were a person of
`ordinary skill in the art of OFDM technology in
`2001?
` A. As a minimum yes.
` Q. Do you think you were an expert in
`the field of OFDM in 2001?
` A. Yes.
` Q. And that is based on what, exactly?
` A. At that period of time, in addition
`to what I'm describing with cellular companies
`and contact and cases that I was not disclosed
`on, I was a testifying expert on OFDM matters
`in major intellectual property disputes in
`federal court.
` Q. In 2001 or before?
` A. The most major one I think was about
`two, two or three years after that, but yes.
` Q. Do you recall the parties to that
`dispute?
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` A. Yes.
` Q. Who?
` A. Globespan Virata, and I was -- I was
`an expert for them. They later were acquired,
`or perhaps during the litigation, by Conexant,
`and they were -- had filed litigation against
`Texas Instruments and Stanford University. I
`think those were the only two defendants.
` Q. And that case related to OFDM
`technology?
` A. Yes.
` Q. Just as an aside, a few minutes ago
`you asked me to rephrase my question. Thank
`you for doing that. If my question's ever not
`clear, please let me know and I'll be glad to
`rephrase it.
` A. Okay, great. Thank you. Sure.
` Q. Because I want to make sure you
`understand my questions.
` A. That we understand the same meaning
`before I answer.
` Q. Yes, sir.
` A. Yeah.
` Q. So let's go to page 7 of your
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`declaration, please.
` A. Okay.
` Q. And looking at paragraph 19, I'm
`going to stay on the topic of the person of
`ordinary skill in the art. All right?
` A. Uh-huh.
` Q. Would a person of ordinary skill in
`the art have been familiar with inverse
`discrete Fourier transforms in 2001?
` A. I believe they certainly would have,
`yes.
` Q. Would they have been familiar with
`converting a block of samples from frequency
`domain to the time domain using an inverse
`discrete Fourier transform?
` A. Yes, they would have.
` Q. Would one of ordinary skill in the
`art at the time have been familiar with pilot
`symbols in OFDM systems?
` A. That, I'm not so sure of.
` Q. Why not?
` A. FFTs, inverse and otherwise, are part
`of signal processing, and I think anybody in
`that particular venue at that time would have
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`been familiar with that.
` As to specifically how
`synchronization is obtained or maintained,
`otherwise known as tracking, and the use of
`pilots, that tends to get it down to individual
`technologies. And to have said that they would
`have known how a specific or individual
`technology did this, or all the different ways
`they did it, would be a stretch. I don't think
`I could say that.
` Q. Was it known in the art in 2001 that
`certain OFDM technologies used pilot symbols?
` MR. PICKARD: Object, outside the
` scope.
` A. I guess what -- I wonder if you could
`focus the question a little bit on what exactly
`you mean by "the art."
`BY MR. EMERSON:
` Q. Well, what -- let's just go by
`whatever you consider the art to be. Okay?
` A. Okay.
` Q. Well, let me back up.
` In paragraph 19, you define what you
`believe the level of ordinary skill in the art
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`would be; correct?
` A. Yes.
` Q. Would that person have known in 2001
`of the concept of using pilot symbols in OFDM
`systems?
` A. I believe they would have known that
`OFDM, like all communication systems, almost
`certainly had some way of establishing and
`maintaining synchronization. I'm not sure that
`they would have known how that was done.
` Q. Okay. Did you know about pilot
`symbols in OFDM technology in 2001?
` A. Did I personally know?
` Q. Sure.
` A. Yes.
` Q. Just generally --
` A. Uh-huh.
` Q. -- the idea of using pilot symbols in
`OFDM systems was known to people like you back
`in 2001.
` MR. PICKARD: Object to form. And
` if you could just phrase it as a
` question, that would be helpful.
` THE WITNESS: Could you --
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