Goldschlag, Dr. David
`
`Case: IPR2016-01404
`
`August 25, 2017
`
`1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
` ____________________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________________________________
` UNIFIED PATENTS, INC.,
` Petitioner
` v.
` INTELLECTUAL VENTURES II, LLC,
` Patent Owner
` ____________________________________
` Case: IPR2016-01404
` U.S. Patent No. 6,968,459
` ____________________________________
`
` CROSS-EXAMINATION OF:
` DR. DAVID GOLDSCHLAG
` Friday, August 25, 2017
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 1 of 130
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`Unified Patents Exhibit 1011
`Unified Patents v. Intellectual Ventures
`IPR2016-01404
`
`
`
`Case: IPR2016-01404
`
`August 25, 2017
`
`1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
` ____________________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________________________________
` UNIFIED PATENTS, INC.,
` Petitioner
` v.
` INTELLECTUAL VENTURES II, LLC,
` Patent Owner
` ____________________________________
` Case: IPR2016-01404
` U.S. Patent No. 6,968,459
` ____________________________________
`
` CROSS-EXAMINATION OF:
` DR. DAVID GOLDSCHLAG
` Friday, August 25, 2017
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 1 of 130
`
`Unified Patents Exhibit 1011
`Unified Patents v. Intellectual Ventures
`IPR2016-01404
`
`
`
`Goldschlag, Dr. David
`
`Case: IPR2016-01404
`
`August 25, 2017
`
`2
`
` DR. DAVID GOLDSCHLAG, called for
`cross-examination by counsel for Petitioner, pursuant
`to notice, at the offices of Sterne Kessler Goldstein
`Fox, 1100 New York Avenue, N.W., Washington, D.C.,
`before SUSAN L. CIMINELLI, CRR, RPR, a Notary Public
`in and for the District of Columbia, beginning at
`9:08 a.m., when were present on behalf of the
`respective parties:
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
`
`August 25, 2017
`
`3
`
` A P P E A R A N C E S
`On behalf of Patent Owner:
` DANIEL BLOCK, ESQUIRE
` STEVEN W. PETERS, Ph.D., ESQUIRE
` Sterne Kessler Goldstein Fox
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
` (202) 371-2600
` dblock@skgf.com
` speters@skgf.com
`
`On behalf of Petitioner:
` ROSHAN SURESH MANSINGHANI, ESQUIRE
` JONATHAN STROUD, ESQUIRE
` Unified Patents, Inc.
` 1875 Connecticut Avenue, N.W., Floor 10
` Washington, D.C. 20009
` (202) 805-8931
` roshan@unifiedpatents.com
` jonathan@unifiedpatents.com
` -and-
` JAMES D. STEIN, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 271 17th Street, N.W.
` Suite 1400
` Atlanta, Georgia 30363
` (404) 653-6439
` IV459-IPR@finnegan.com
`ALSO PRESENT:
` James Hietala, Esquire
` Intellectual Ventures II, LLC
` (Via telephone)
` * * * * *
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`4
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` C O N T E N T S
`DR. DAVID GOLDSCHLAG
`EXAMINATION BY: PAGE
` Counsel for Petitioner 5
`
` INDEX TO EXHIBITS
`UNIFIED PATENTS EXHIBIT DESCRIPTION PAGE
`(Previously marked.)
`Exhibit 2004 IPR2016-01404 Goldschlag
` Declaration 11
`Exhibit 1001 U.S. Patent 6,968,459 B1 23
`Exhibit 1004 U.S. Patent 5,533,125 26
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`5
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` P R O C E E D I N G S
`Whereupon,
` DR. DAVID M. GOLDSCHLAG,
`was called for cross-examination as a witness by
`counsel for Petitioner, and having been duly sworn,
`was examined and testified as follows:
` MR. MANSINGHAMI: Let's just real fast
`note our appearances. So for the record, my name is
`Roshan Mansinghani. I work for Unified Patents and
`will be participating in the deposition today. My
`colleague, James Stein, is in the room today from
`Finnegan Henderson. He will also be participating in
`the deposition today. And my colleague, Jonathan
`Stroud, from Unified Patents is also here listening
`in to the deposition.
` MR. BLOCK: Dan Block with the law firm of
`Sterne Kessler Goldstein Fox, on behalf of
`Intellectual Ventures. With me today is Steve Peters
`and James Hietala as well.
` CROSS-EXAMINATION
`BY MR. MANSINGHAMI:
` Q. We'll begin the questioning now.
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`Dr. Goldschlag, can you please state your name and
`address for the record?
` A. Yes. I'm David Goldschlag. I live at
`12018 Auth Lane, Silver Spring, Maryland.
` Q. And today you understand you're under
`oath?
` A. I do.
` Q. And that that oath that you took asked you
`to testify truthfully to everything that I'm asking
`you today?
` A. Yes, I do.
` Q. And also to provide complete answers to
`all my questions today?
` A. Yes.
` Q. A few ground rules that might just help us
`all. If there is anything in my questioning that you
`don't understand, would you mind just telling me
`during our deposition today?
` A. I will.
` Q. Thank you. And whenever you give answers,
`please make sure they are all verbal answers, so even
`if it's a yes, don't nod. Just also say yes or no.
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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`7
`You've been doing it well so far, so I just wanted to
`make sure.
` A. If I don't talk loudly enough, let me
`know.
` MR. BLOCK: Just for clarification, you
`said you're both participating. I assume you're just
`asking questions.
` MR. MANSINGHAMI: My colleague, James,
`will be asking questions, but we'll take a break.
`We'll always do it between breaks.
` MR. BLOCK: That's something I've never
`seen before, but you can start and we can talk about
`it later.
`BY MR. MANSINGHAMI:
` Q. Now, is there anything that would keep you
`from testifying accurately today?
` A. No.
` Q. Are you taking any medication that could
`interfere with your ability to testify accurately
`today?
` A. No.
` Q. I may be asking you some questions that
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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`require sort of a yes or no answer. When I do so,
`I'd like for you to answer that as best as you can.
`Is that fair?
` A. I'll try to answer as best as I can.
` Q. Okay. What did you do today to prepare
`for your deposition?
` A. Today?
` Q. I'm sorry. I meant what did you do to
`prepare for your deposition today? So not what did
`you do today, what did you do at all to prepare for
`today's deposition.
` A. I'm sorry.
` Q. Thank you.
` A. Yes. So this process has been going on
`for some months, right? So we've talked about the
`various background material, and reviewed the
`materials, including the petition and the responses
`to that, as well as the other patents, right, being
`asserted. And then we wrote the declaration and
`reviewed that and went through things in order to
`prepare for the deposition today.
` Q. So what did do you to prepare for your
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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`deposition today after you drafted your declaration?
` A. I think there had been some time. I'm
`forgetting exactly the time between then and when the
`declaration was written, and now. We reviewed, just
`read through and talked through the declaration, and
`referred back to the materials that are referenced.
` Q. Did you have any meetings to prepare for
`your deposition, after you submitted your
`declaration?
` A. Yes, I met with Steve Peters and some
`others.
` Q. Who else did you meet with?
` A. I think there were some others on the
`phone, right? Dan, you were on the phone. I think
`for a bit, Lori was on the phone, and James was on
`the phone.
` Q. And how many meetings did you have after
`your declaration to prepare for today's deposition?
` A. So we met this week. I don't remember if
`there were other meetings between the time of writing
`the declaration and today. I don't remember
`precisely.
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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` Q. How many days did you meet this week?
` A. We met on -- for part days on Wednesday
`and Thursday.
` Q. And the people that you met with to
`prepare for today's deposition were the two lawyers
`in this room today. The lawyer on the phone today,
`and you mentioned a lawyer named Lori, is that
`correct?
` A. Yes. I believe she is a colleague at
`Sterne Kessler.
` Q. And did you meet with anyone else?
` A. No, that's what I remember.
` Q. What materials did you review in your
`meetings this week to prepare for today's deposition?
` A. So we had a binder with all of the
`exhibits, including the declaration.
` Q. Did you review any materials that had not
`been submitted to the Patent Office as part of this
`proceeding?
` A. I believe that the binder only had
`exhibits in it.
` Q. I'd like to talk a little bit about your
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`declaration, and I'll put a copy before you --
` A. I would appreciate that.
` Q. -- of your declaration. Let's get that
`out first.
` (Exhibit 2004 was
` marked previously for
` identification.)
`BY MR. MANSINGHAMI:
` Q. Let the record reflect that I'm handing --
`I handed the witness Exhibit 2004 in this matter, a
`copy to counsel as well. Do you recognize Exhibit
`2004?
` A. Yes. I'm just looking through it. This
`is my declaration. Yes, this looks like my
`declaration.
` Q. If you could turn to page 4 of your
`declaration, please. Do you see the section titled
`materials considered?
` A. Yes, Section 3.
` Q. Did you consider any materials in writing
`your declaration that are not listed here on pages 4
`and 5?
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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` A. So I don't believe so. Not directly. Of
`course, I've read stuff over many years.
` Q. But in forming your declaration, the --
`were there any materials that you read over the
`previous years that you directly relied on or did
`they just form your general knowledge?
` A. No. They just formed my general
`knowledge.
` Q. So everything that you're relying on for
`this proceeding and in your declaration is listed
`here on pages 4 and 5?
` A. That is correct.
` Q. And in preparing for your deposition
`today, did you review any materials that are not
`listed here on pages 4 and 5 of your declaration?
` A. No. The list seems complete.
` Q. Now, in preparing this declaration -- or
`strike that.
` The materials that were listed here and
`considered -- as considered on pages 4 and 5, were
`those materials you selected?
` A. No, I think that these were the materials
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`Case: IPR2016-01404
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`August 25, 2017
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`that were relevant, part of the case.
` Q. So there were no materials listed in here
`that you chose to review yourself? These were all
`materials that you were asked to review?
` A. That is correct.
` Q. So you did no independent investigation of
`the issues that you were asked to review?
` A. Outside of my general knowledge and
`expertise.
` Q. I'm not sure that answered my question.
`So do you mean that you did no independent
`investigation other than your general knowledge and
`expertise?
` A. Yes, I think I considered my general
`expertise, along with these materials.
` Q. Did you ask to review any other materials?
` MR. BLOCK: Objection, form.
` THE WITNESS: No, I did not.
`BY MR. MANSINGHAMI:
` Q. Can you turn to the table of contents,
`which is on Roman numeral I?
` A. Yes, I'm there.
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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` Q. In Section VIII, do you see that you list
`ground 1 as something you offered an opinion on?
` A. You mean the first -- the first section in
`VIII, is that right.
` Q. Yes. Roman numeral VIII, it says, ground
`1. Do you see that?
` A. Yes. With the claims that follow, yes.
` Q. With the claims that follow. I don't see
`listed here ground 2. Did you consider ground 2?
` A. Not in this declaration.
` Q. Not in this declaration?
` A. We didn't -- we didn't talk about that
`here.
` Q. Did you consider it at all, ground 2?
` A. We didn't -- I didn't pursue it.
` Q. You did not pursue it. But my question
`is, did you consider it?
` MR. BLOCK: Objection, asked and answered.
` THE WITNESS: I don't recollect.
`BY MR. MANSINGHAMI:
` Q. You don't recall whether you considered
`ground 2?
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`Case: IPR2016-01404
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`August 25, 2017
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` A. I don't recollect.
` Q. Okay. Do you have any opinions regarding
`ground 2?
` MR. BLOCK: Objection, asked and answered.
` THE WITNESS: The recent review was
`related to the materials here, and so that's what I
`remember.
`BY MR. MANSINGHAMI:
` Q. But you drafted this declaration, correct?
` A. That is correct.
` Q. And in this declaration, you did not
`include any opinions about ground 2, is that correct?
` A. That's right.
` Q. So is it fair to say, for these
`proceedings, you don't have any opinion regarding
`ground 2?
` A. That is correct.
` Q. In preparing for your deposition, for
`today's deposition, did you form any opinions that
`are outside the scope of this declaration?
` MR. BLOCK: Objection, form.
` THE WITNESS: I think that this
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`declaration represents my opinions.
`BY MR. MANSINGHAMI:
` Q. So you're not here to testify today about
`any new opinions that are not in your declaration, is
`that right?
` MR. BLOCK: Objection, form.
` THE WITNESS: So I'm happy to answer
`questions about the declaration.
`BY MR. MANSINGHAMI:
` Q. Objection, non-responsive. So my question
`was just simply that in the preparation for today's
`deposition, did you form any new opinions about this
`case that are not in your declaration?
` MR. BLOCK: Objection, asked and answered.
`Form.
` THE WITNESS: So I think my opinions are
`consistent with the declaration.
`BY MR. MANSINGHAMI:
` Q. Objection, non-responsive. My question
`was --
` MR. BLOCK: It's not proper for you to be
`objecting to your own questions.
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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`BY MR. MANSINGHAMI:
` Q. My question was not whether you think your
`opinions are consistent or inconsistent with this
`particular declaration. My question is simply, did
`you form any new opinions that are not written down
`in this declaration?
` MR. BLOCK: Objection, asked and answered.
` THE WITNESS: No, these are my opinions
`about the material.
`BY MR. MANSINGHAMI:
` Q. So to confirm, you don't have any new
`opinions that are outside of this declaration?
` MR. BLOCK: Objection, asked and answered.
` THE WITNESS: So these are my opinions.
`BY MR. MANSINGHAMI:
` Q. When you say, "these are," are you
`referring to your declaration?
` A. Yes. I am.
` Q. How much time did you spend preparing your
`declaration?
` A. So as I mentioned, I spent -- I was here
`for two half days this week, and I spent time outside
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`of those meetings to review. And I spent time over
`the past few months, but I don't have a summary of
`that time now.
` Q. So to clarify, my question was about your
`declaration, not today's deposition.
` A. Oh, I see. Okay.
` Q. How much time did you spend preparing this
`declaration?
` A. So I actually, as I was saying, I'm sorry,
`I did not get that update, so I don't know.
` Q. Was it less than a week?
` A. It was time over a period of some months,
`okay.
` Q. So it was over the course of several
`months that you prepared your declaration?
` A. Something like that.
` Q. And was the process that you were given a
`draft to review and revise the declaration?
` MR. BLOCK: Objection, form.
` THE WITNESS: So the process starts
`earlier than that, of course, right.
`BY MR. MANSINGHAMI:
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`Goldschlag, Dr. David
`
`Case: IPR2016-01404
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`August 25, 2017
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` Q. So the process started earlier. Can you
`walk me through what the process was?
` A. So there is --
` Q. -- for forming your declaration?
` A. There is a discussion of the patent and
`the other patents, and discussion of my opinions,
`right, and other opinions about the assertions. And
`that leads to the declaration, right. And then I get
`to review the declaration and reiterate on that.
` Q. So is it a fair summary to say that you
`discussed your thought processes and your thoughts of
`the case, and then you were provided a draft
`declaration that you reviewed and revised?
` A. That is correct.
` Q. Can you turn to page 4 of your declaration
`again, please?
` A. Yes.
` Q. Do you see that your declaration states
`that you considered a reference called Takahashi,
`which is the third bullet up from the bottom labelled
`Exhibit 1005 in your declaration.
` A. Yes, I see that patent.
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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` Q. Is it fair to say you formed no opinions
`about that reference and its applicability in this
`case?
` A. I think that it's fair to say that I spent
`the least -- a smaller amount of time on Takahashi,
`right, than on other ones.
` Q. But you did not reduce your thoughts into
`a form of a written opinion in this declaration
`regarding Takahashi, is that correct?
` A. Yes. That's correct. I didn't spend a
`lot of time, right, to review Takahashi.
` Q. Can you turn to page 13 of your
`declaration?
` A. I'm there.
` Q. And here you've listed the challenges that
`the Petitioner has brought in this case and you
`numbered them grounds 1 and 2. Do you see that?
` A. I see the table.
` Q. And do you see that ground 2 challenges
`claims 2 and 34 as obvious?
` A. I see that. That's what's written.
` Q. And it's true that in this declaration,
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`you provided no opinions to oppose that position.
`Isn't that correct?
` MR. BLOCK: Objection, form.
` THE WITNESS: So I believe that there is
`not a section on ground 2 in the declaration.
`BY MR. MANSINGHAMI:
` Q. And that -- and the fact that there is not
`a section on ground 2 in the declaration means you
`haven't formed an opinion that you've chosen to write
`down about ground 2, isn't that right?
` MR. BLOCK: Objection, mischaracterizes.
` THE WITNESS: So my declaration doesn't
`have a section on ground 2.
`BY MR. MANSINGHAMI:
` Q. And so the fact that your declaration
`doesn't have a section on ground 2 means that you
`don't have an opinion on whether or not claims 2 and
`34 are obvious in view of Bensimon and Takahashi, is
`that correct?
` MR. BLOCK: Objection, mischaracterizes,
`asked and answered.
` THE WITNESS: So we didn't spend a lot of
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`time on that, so --
`BY MR. MANSINGHAMI:
` Q. I understand you didn't spend a lot of
`time on it, but I'm here to try to understand what
`your opinions are. And so my question is, it's true
`that you do not have an opinion on whether or not
`claims 2 and 34 are obvious in view of Bensimon and
`Takahashi, right?
` MR. BLOCK: Objection, asked and answered,
`mischaracterizes.
` THE WITNESS: So I did not spend a lot of
`time on that. I don't have something to say about it
`in the context of this declaration.
`BY MR. MANSINGHAMI:
` Q. So you have nothing to say about whether
`claims 2 and 34 are obvious in this declaration,
`isn't that right?
` MR. BLOCK: Objection, asked and answered,
`mischaracterizes.
` THE WITNESS: So I have nothing in the
`declaration, and I have nothing to comment -- talk
`about, right, with respect to that, because I didn't
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`Case: IPR2016-01404
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`August 25, 2017
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`spend a lot of time on it.
`BY MR. MANSINGHAMI:
` Q. So listed on page 13 in that table are a
`set of claims. Do you see those set of claims listed
`in the table on page 13?
` A. You mean 1, 13, 14, 33, 99, 36, 46 and 48?
` Q. Yes.
` A. Yes, I see that.
` Q. Does the patent, which is 6,968,459, does
`that patent have claims other than the claims that
`are listed here?
` A. Do you have a copy of the patent?
` Q. I do. The record will reflect I'm handing
`the witness Exhibit 1001.
` (Exhibit 1001 was
` marked previously for
` identification.)
`BY MR. MANSINGHAMI:
` Q. A copy to counsel as well. So now with
`Exhibit 1001 in front of you, can you confirm whether
`the patent includes claims that are not listed here
`in the table on page 13?
`
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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` A. So 49 has 50 claims.
` Q. 50 claims. And so there are claims in the
`-- well, before I move on, would it be okay for you
`if we refer to Exhibit 1001 as the '459 patent?
` A. That would be better for me. Thank you.
` Q. Great. So you agree that the '459 patent
`has claims other than claims 1, 13, 14, 33, 39, 46,
`48, 2, and 34?
` A. Would you like me to list the claims other
`than those?
` Q. No. I'd just like you to answer the
`question. I'm trying to get an understanding of the
`claims that you have reviewed, so let's just try
`answering my question first. The '459 patent has
`claims other than claims 1, 13, 14, 33, 39, 46, and
`48, 2, and 34, correct?
` MR. BLOCK: Objection, form.
` THE WITNESS: Yes, there are claims
`between 1 and 50 that fall outside that set.
`BY MR. MANSINGHAMI:
` Q. Did you study the claims that are -- of
`the '459 patent that are not listed on page 13 of
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`your declaration?
` A. So I read the '459 patent, but I studied
`the ones that are discussed in this declaration.
` Q. So that means that you've read and not
`studied the claims that are not listed on page 13 of
`your declaration, is that fair?
` MR. BLOCK: Objection, mischaracterizes.
` THE WITNESS: So I spent more time on the
`claims that are discussed in this patent.
`BY MR. MANSINGHAMI:
` Q. How familiar are you with the claims that
`are not listed on page 13 of your declaration?
` MR. BLOCK: Objection, form.
` THE WITNESS: I'm much more familiar with
`the claims that are listed here.
`BY MR. MANSINGHAMI:
` Q. Are you comfortable testifying as an
`expert regarding the claims that are not listed on
`page 13 of your declaration?
` MR. BLOCK: Objection, scope, relevance.
` THE WITNESS: I'm comfortable testifying
`with respect to the material in my declaration.
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`Goldschlag, Dr. David
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`Case: IPR2016-01404
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`August 25, 2017
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`BY MR. MANSINGHAMI:
` Q. So if there is something that's not in
`your declaration, you're not comfortable testifying
`about it regarding IPR2016-01404, which is the case
`number of this matter?
` MR. BLOCK: Objection, mischaracterizes.
` THE WITNESS: So of course, it depends on
`the type of question, but in general, I like to give
`a considered answer, so I'm more comfortable talking
`about the material in the declaration.
` (Exhibit 1004 was
` marked previously for
` identification.)
`BY MR. MANSINGHAMI:
` Q. Let the record reflect I'm handing the
`witness Exhibit 1004
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