UNITED STATES PATENT AND TRADEMARK OFFICE
`------------------------------
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`------------------------------
`GOOGLE LLC
`Petitioner
`v.
`FLYPSI, INC.
`Patent Owner
`------------------------------
`IPR2023-00357; IPR2023-00358
`IPR2023-00359; IPR2023-00360
`IPR2023-00361
`
`Deposition of ROBERT AKL, D.Sc.
`Friday, January 5, 2024
`Dallas, Texas
`8:51 a.m.
`
`Job No.: 519686
`Pages: 1 - 133
`Reported by: Amanda Blomstrom, CRR/RMR/CLR/CSR
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`GOOGLE EXHIBIT 1102
`Google LLC v. Flypsi, Inc.
`IPR2023-00357
`
`Page 1 of 168
`
`
`------------------------------
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`------------------------------
`GOOGLE LLC
`Petitioner
`v.
`FLYPSI, INC.
`Patent Owner
`------------------------------
`IPR2023-00357; IPR2023-00358
`IPR2023-00359; IPR2023-00360
`IPR2023-00361
`
`Deposition of ROBERT AKL, D.Sc.
`Friday, January 5, 2024
`Dallas, Texas
`8:51 a.m.
`
`Job No.: 519686
`Pages: 1 - 133
`Reported by: Amanda Blomstrom, CRR/RMR/CLR/CSR
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`GOOGLE EXHIBIT 1102
`Google LLC v. Flypsi, Inc.
`IPR2023-00357
`
`Page 1 of 168
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`
`
`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`2
`
` Oral Deposition of ROBERT AKL, D.Sc., taken
`pursuant to 37 C.F.R. § 42.53, regarding IPR2023-00357,
`IPR2023-00358, IPR2023-00359, IPR2023-00360, and
`IPR2023-00361, before Amanda Blomstrom, Certified
`Realtime Reporter, Registered Merit Reporter, Certified
`Livenote Reporter, and Certified Shorthand Reporter
`(TX 8785, IL 84-3634, and CA 12681), held at the law
`offices of Winston & Strawn, 2121 North Pearl Street,
`Dallas, Texas 75201, from 8:51 a.m. to 2:44 p.m.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`3
`
` A P P E A R A N C E S
`
`ON BEHALF OF THE PETITIONER:
` HOWARD HERR, ESQUIRE
` DANIEL ZEILBERGER, ESQUIRE
` PAUL HASTINGS LLP
` 2050 M Street, N.W.
` Washington, D.C. 20036
` 202.551.1980
` howardherr@paulhastings.com
` danielzeilberger@paulhastings.com
`
`ON BEHALF OF THE PATENT OWNER:
` MATT McCULLOUGH, ESQUIRE
` WINSTON & STRAWN LLP
` 255 Shoreline Drive, Suite 520
` Redwood City, California 94065
` 650.858.6453
` mrmccullough@winston.com
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`4
`
` I N D E X
`
` WITNESS: ROBERT AKL, D.Sc.
` EXAMINATION Page
` By Mr. Herr 5
` By Mr. McCullough 129
`
` EXHIBITS
`NO. DESCRIPTION REFERRED TO
`Exhibit 1001 U.S. Patent 10,334,094............. 30
`Exhibit 1005 U.S. Patent Application Publication
` No. US 2013/0295892, Backhaus...... 58
`Exhibit 1009 Plaintiff Flypsi, Inc.’s Responsive
` Claim Construction Brief........... 18
`Exhibit 1015 U.S. Patent 9,667,770.............. 105
`Exhibit 1020 Winbladh........................... 123
`Exhibit 2010 Declaration of Dr. Robert Akl in Support
` of Patent Owner’s Response......... 9
`Exhibit 2011 CV of Robert Akl, D.Sc............. 10
`
`(Exhibits not marked/not attached)
`
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`5
`
` ROBERT AKL, D.Sc.,
`having been first duly sworn, testified as follows:
` EXAMINATION
`BY MR. HERR:
` Q. So, Dr. Akl, can you please state your full
`name for the record.
` A. Robert Akl.
` Q. Okay. Thank you.
` So I just want to go over -- I'll quickly
`go over some simple and general ground rules. Given that
`we have a court reporter that's transcribing the
`deposition, so just try not to talk over each other. And
`if you don't understand the questions, please do ask.
` And you understand that today your
`testimony is under oath, right?
` A. Yes.
` Q. Okay. Thank you.
` Are there any reason today that you cannot
`testify completely, truthfully, and accurately?
` A. No.
` Q. Thank you.
` So who first contacted you about this case?
` A. Counsel for Flypsi.
` Q. Who is that?
` A. Counsel contacted me.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`6
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` Q. Which counsel?
` A. For Flypsi.
` Q. Could you please provide the name of the
`person.
` A. I don't remember.
` Q. Don't remember. Okay.
` So when were you retained?
` A. Towards the fall of 2023.
` Q. Do you remember -- do you remember the date?
` A. I think it's sometime around October.
` Q. Okay. I see that you are looking at your
`computer screen. Are you looking at your Declaration?
` A. I have -- I opened up my Consulting Agreement
`to be able to answer your question.
` So, it's October 2023.
` Q. Okay. So for the deposition -- for the purpose
`of this deposition, can you please let me know which
`document you're opening on your computer --
` A. Yes.
` Q. -- before you do so. Thank you.
` So when did you begin working on this case?
` A. After I got retained.
` Q. And I see that you're looking at your computer
`again. Which document are you looking at?
` A. I don't have -- I'm not looking at a document.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`7
`
`I'm just looking at my computer.
` Q. Okay. So what do you have open on your
`computer now?
` A. I have my Declaration.
` Q. Okay. So can I just say that, please let me
`know before you open any document.
` And you just told me that you only opened
`the Agreement, but you didn't tell me that you opened the
`Declaration.
` A. Actually, no, that's not correct
`characterization. Before we started the deposition, I
`have five patents open, and I have my five Declarations
`open.
` Q. Okay.
` A. When you asked me when I was retained, I opened
`my Consulting Agreement to be able to answer your
`question --
` Q. Okay.
` A. -- and then I closed it. So what remained in
`the background is my Declaration.
` Q. All right. So can you clarify what access you
`have on your computer now.
` A. I have just the five patents and my five
`Declarations open.
` Q. Okay. So you do not have any programs open
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`8
`
`that can allow you to communicate with other people?
` A. That's correct.
` Q. Okay. You don't have any emails or chat box
`that's open?
` A. That is correct.
` Q. Do you have access to those?
` A. Yes.
` Q. Okay.
` A. I mean, they're programs on my computer, but I
`don't have them open.
` Q. Okay. How about any other files that's not
`relating to the Declaration or the exhibits?
` A. I don't have them open, but I do have the other
`exhibits, the Petitions, the initial -- so some of the
`other exhibits in this case I do have on my computer.
` Q. Okay. Do you have any notes relating to the
`case or just any notes on your computer that's being open
`now?
` A. No.
` Q. Okay. Do you have access to those?
` A. I do take, or I have in the past, taken notes
`using a program called Microsoft OneNote.
` Q. Okay. And do you have access to those now?
` A. I have -- the program is on my computer, yes,
`but I don't have it open.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`9
`
` Q. Understood. Thank you.
` So can you confirm that you have now five
`Declarations open and you have five patents open, and
`that those are it?
` A. That is correct.
` Q. Okay. And they are clean, unmarked versions,
`right?
` A. Yes.
` Q. Are they PDFs or Word documents?
` A. They're PDFs.
` Q. Okay. So now I'm handing you the copies of the
`five Declarations, so -- which includes the IPR2023-
`00357, Exhibit 210. And this is IPR ending in 358, also
`Exhibit 210. IPR ending in 359, same Exhibit number.
`IPR ending in 360, same exhibit number. And the last one
`ending in 361.
` Sorry, I should have just given you a copy.
` Okay. So you have those five copies in
`front of you, right?
` A. Yes.
` Q. Okay. Do you recognize these documents?
` A. Yes.
` Q. Okay. So can you please confirm that you
`signed each of the Declarations that you submitted
`associated with these IPRs at issue here in this
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`10
`
`deposition.
` And just to clarify. These exhibits are
`Exhibit No. 2010. I might have misspoken, yeah.
` A. They are all signed by me.
` Q. Did you prepare all five Declarations?
` A. Yes.
` Q. So can you please go to Exhibit 210 of
`IPR2023-00358 in Paragraph No. 2.
` A. I'm there.
` Q. Thank you.
` That paragraph indicates that you "have
`been retained by counsel for Patent Owner Flypsi."
` And who is the counsel for the patent -- so
`who is the counsel for the patent owner?
` A. I'm going to open up my --
` Q. Can you tell me what you're going to open
`before you open it.
` A. Yes.
` -- my Consulting Agreement.
` Q. Okay.
` A. So the correct -- the spelling of counsel is
`Winston & Strawn LLP.
` Q. Thank you.
` So I'm now handing you Exhibit 2011. And
`can you please go to Page 2 of the document.
`
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`11
`
` Essentially, at the top, it states that you
`were hired by Devlin Law Firm for this case; is that
`right?
` A. No. That was a typo.
` Q. So that entire line is a typo?
` A. Yes. I copied and pasted the template, and I
`forgot to change the top line.
` Q. So did you prepare the CV yourself?
` A. Yes.
` Q. Did you prepare the Declaration yourself?
` A. Yes. That, the typo, is a copy from L4, if you
`look on the same page, L4, I copied and pasted L4 onto L1
`to create a new entry, and I changed everything except
`the first line.
` Q. Okay. Can you please go to your Declaration,
`IPR ending in 358, which is the '094 Patent Declaration.
` A. I'm sorry, can you repeat --
` Q. Sure.
` A. -- which one?
` Q. That's the IPR ending in 358, '094 Patent
`Declaration.
` A. Yes, I'm there.
` Q. Thank you.
` So can you please go to Paragraph 17.
` A. I am there.
`
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`12
`
` Q. So in that paragraph you indicate that you are
`"being compensated for my work in this case at my
`standard rate."
` What is your standard rate?
` A. 895.
` Q. How much time you have spent on these five IPR
`proceedings?
` A. Around 30 hours.
` Q. Is that 30 hours per case -- sorry, per IPR, or
`total?
` A. Total.
` Q. So for today's deposition, did you -- how much
`time did you spend for today's deposition?
` A. I met with counsel yesterday for a little over
`three hours, I think three and a half hours.
` Q. So other than that, what else did you do to
`prepare for the deposition?
` A. The day before that I reviewed the -- my
`Declarations and some of the exhibits.
` Q. So did -- who did you talk to while preparing
`for this deposition?
` A. Counsel that's present here was present
`yesterday, and we met in person.
` Q. All right. How long did you have that
`discussion for?
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`13
`
` A. Around three and a half hours.
` Q. Could you please go to paragraph -- sorry. Let
`me see, make sure. Okay. Starting at -- go to
`Paragraph 3 of the same Declaration you were just looking
`at.
` A. I'm there.
` Q. Okay. And that's Section II of the
`Declaration, correct?
` A. Yes.
` Q. Okay. So in that Section II, you listed your
`Background and Qualifications, correct?
` A. Yes.
` Q. You did not list any specific experience
`regarding PSTN, correct?
` A. I -- can you repeat the question?
` Q. Sure.
` You did not list any specific experience
`regarding PSTN, correct?
` A. PSTN would be -- is included indirectly in
`the courses that I have taught and some of the other
`materials or cases that I have dealt with. I don't
`believe I state the word "PSTN" directly. I provide an
`overview, but I don't think "PSTN" is called out, that
`specific acronym.
` Q. So what courses did you teach that is relevant
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
`
`14
`
`to PSTN?
` A. So -- so looking at my CV, which you gave me,
`which is Exhibit 2011, I designed a course -- I'm on
`Page 45 -- I designed a course called "Fundamentals of"
`Voice over IP. This is a course that I developed and I
`have taught a few times.
` I have also designed two courses, one is
`called "Wireless Communication," one is called
`"Introduction to Wireless Communication." Those are on
`Page 46. Those also cover PSTN. They focus on cellular
`communication and how the cellular network connects to a
`public switch telephone network.
` I've also designed a course on LTE physical
`layer that specifically focuses on 4G, and there is an
`aspect of how the 4G network connects to a public switch
`telephone network.
` And then on -- the next set of pages lists
`when I've taught these courses.
` So starting in -- working backwards,
`starting in fall 2023, I taught "Intro to Wireless
`Communication," summer 2024, fall 2024, spring 2025,
`summer 2025, fall 2025.
` I've also taught "Wireless Communications"
`at the graduate level, in addition to the intro class at
`the undergraduate level, summer 2026.
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`Conducted on January 5, 2024
`
`15
`
` Spring 2027, I taught "Fundamentals of"
`Voice over IP and "Wireless Communication." Both are
`graduate courses.
` Spring 2028, I taught both the "Intro to
`Wireless Communication" and the "Wireless Communication"
`course.
` Spring 2029, I taught both the intro at the
`undergraduate level and the graduate-level version.
` Q. So, sorry, you say "2029"?
` A. Sorry. 2009.
` Q. Got it.
` A. Spring 2009.
` Spring 2010, I taught both.
` Spring -- sorry, fall -- no. Spring 2011,
`I taught both.
` Fall -- no. Spring 2012, I taught both.
` Spring -- fall 2023, I taught an advanced
`course in wireless communication, which also would
`include aspects of public switch telephone network.
` Then spring 2014, I taught my "Intro to
`Wireless" and the "Wireless" course.
` Q. Okay. Understood. So --
` A. And I can keep going, but yes.
` Q. Sure, sure. Yeah.
` So none of these courses, at least on the
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`Conducted on January 5, 2024
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`16
`
`title, list "PSTN" as a -- "PSTN" as a topic, right?
` A. The title of the courses are "Wireless
`Communication, Intro to Wireless Communication."
` Q. But none of them --
` A. Voice -- I'm sorry, I'm not done with my
`response.
` Q. Sure. Okay.
` A. -- and "Fundamentals of" Voice over IP, and do
`not include the word "PSTN" as part of the title.
` Q. So why would you teach PSTN in those courses?
` A. Because you don't -- I mean, the title of the
`course does not indicate every topic taught in the
`course; otherwise, we would have very long titles.
`The course on wireless communication focuses on telephone
`calls. It's relevant to what we teach our students
`related to cellular communication. And a cellular
`network needs to communicate with a public switch
`telephone network. So that is taught as part of
`the -- those classes.
` Voice over IP is a course that focuses on
`voice over IP in a telephone network. It discusses SS7
`and packet switching and implementations related to
`security and quality of service.
` So those would be relevant courses to teach
`our students today because PSTN is not really a current
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`17
`
`topic per se, but cellular communication, voice over IP,
`and how they connect to the public switch telephone
`network is how we prepare our undergraduate and graduate
`students in a career in telecommunications.
` Q. I appreciate that.
` So other than teaching the courses and
`involving cases having PSTN as a -- as a -- in the topic,
`do you have any experience regarding PSTN in terms of
`professional experiences?
` A. I am an academic. I've been a professor for
`over 20 years. Before that I did work in industry for a
`couple years. And before that I -- so that basically
`puts us back in the '90s when I was an undergraduate and
`graduate student. So, having a fairly short span in
`industry, the basis of my expertise in the field comes
`from both being a student, being a Ph.D. student, and
`being a professor where I've taught the materials over
`the last 22 years.
` When I did work in industry, I worked as a
`senior systems engineer for a company called Comspace
`Corporation. It did deal with telecommunication, but it
`dealt with a wireless communication.
` Q. Okay. Thank you.
` So can you please go to Paragraph 18 on
`your Declaration.
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`Conducted on January 5, 2024
`
`18
`
` A. Yes, I'm there.
` Q. Thank you.
` So in there, you indicated that you have
`reviewed a number of documents, correct?
` A. Yes.
` Q. So who provided those documents to you?
` A. Counsel.
` Q. Which counsel?
` A. For Patent Owner.
` Q. Does Paragraph 18 of your Declaration reflect
`all of the documents you've reviewed?
` A. Yes.
` Q. You have reviewed Exhibit 1009, correct?
` A. I don't remember what Exhibit 1009 is off the
`top of my head.
` Q. That's okay.
` Can you please go to Paragraph 31 of your
`Declaration.
` A. I'm there.
` Q. So you included paragraph regarding
`qualification of a POSITA; is that right?
` A. Yes. And it's an acronym, capital P, capital
`O, capital S, capital I, capital T, capital A.
` Q. How did you come up with your definition of a
`POSITA?
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`19
`
` A. So in the previous paragraph, in Paragraph 30,
`I provide an opinion of what a person of one skilled in
`the art is. They are a hypothetical person. They -- and
`I would consider factors like the educational level,
`years of experience of those working in the art. I look
`at -- I mean, I also look at the patents themselves, the
`patents, the technology that's relevant to the patents.
` And there is in the patents, for example,
`I'm looking at the '770 -- well, let's stick with this
`patent. So we are -- I'm sorry, we are in '094. So for
`the '094 patent, if you go to Column 1, Column 1, it has
`a paragraph on the "Field of the Invention." And it
`says, "The present invention relates to systems and
`methods for setting up and connecting telephone calls ...
`delivering information related to such telephone calls
`using an Internet IP or other data channel while
`delivering the voice portion of the call in accordance
`with CDMA, GSM, or like voice channel delivery
`standards."
` So the paragraph relating to the Field
`would also be something that I would consider, including
`the technology in the spec, and then I would look at the
`priority date, and I would look at when -- what the
`patent claims as its priority around that time frame.
` And so those are all factors that I take
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`20
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`into account in deciding what the qualifications of a
`POSITA is that I come up with in Paragraph 31.
` And it is fairly similar to what the
`petition states. So I don't think there is dispute, at
`least between the parties, on the qualifications of a
`POSITA. And my opinions would be the same, whether
`Petitioner's definition or my definition is adopted.
` Q. Thank you.
` So you referred to Column 1, the Field of
`the Invention, in para- -- in the '094 patent, correct?
` A. I did in answering your question.
` Q. So are you saying that a POSITA would have
`known about what you just read in Column 1 of the patent
`as a -- as his or her knowledge at the time of the
`alleged invention?
` A. I think some of that is part of the knowledge
`of a POSITA, yes. The patent itself goes into details in
`terms of the -- the background. So, there is a separate
`section, and the section related to the Background of the
`Invention is more how the specification and the patent
`itself is trying to define what is known as prior art.
` Q. Thank you.
` So you say some of that paragraph you
`just -- some of the passage -- sorry -- some of the Field
`of Invention you just read is a part of the POSITA
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`21
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`knowledge. So what part was POSITA's knowledge?
` A. Well, your question was fairly broad. I mean,
`CDMA is a field of study; GSM is a field of study; IP.
`So I'm saying there are aspects to these that would be
`within a -- the knowledge of a POSITA. I'm not saying
`everything related to those would be.
` So, again, you know, somebody -- this is
`why the qualifications are different between what an
`expert might possess in this field versus what a POSITA
`would possess in this field, which would be a subset.
` So, they would have knowledge related to
`CDMA and GSM and IP that would allow them to read and
`understand the patent, be able to understand the
`invention, in that context.
` Q. So you're saying IP, GSM, CDMA, they were all
`well-known at the time of the alleged invention, right?
` A. GSM, CDMA are second-generation. I believe
`they're -- go back to the '80s and the '90s. IP goes
`back around that time also. And those all predate the
`priority date of the patent, yes.
` Q. So is PSTN a telecommunication system?
` A. I don't believe I provided a definition for
`PSTN, but I would generally agree that PSTN is the public
`switch telephone network, which would be an example of a
`telecommunication system.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`22
`
` Q. Other than teaching the courses or working on
`cases having PSTN as the -- part of the topic, do you --
`did you have two years of experience in design or
`development of the PSTN?
` A. Yes. As an academic, when I teach my
`students how to design a network, I need to have those
`qualifications so I can teach them how to do such a
`design.
` Q. Okay.
` Can you please go to Paragraph 21 of your
`Declaration.
` A. I'm going to close the other ones just so that
`I don't open a different one by accident, so --
` Q. Sure. So --
` A. Since we're focusing on the 358, I'm going to
`leave that open, and I'm only going to leave open the
`'094 patent. So, right now in front of me, I only have
`open the '094 patent and my Declaration that is to the
`'094 patent.
` So with that, can you please repeat your
`question?
` Q. Sure.
` Can you please go to Paragraph 21 of the
`Declaration.
` A. I am there.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`23
`
` Q. Do you -- you used the phrase "ordinary and
`customary meaning," right, in that paragraph?
` A. Yes. In the first sentence, I state "I
`understand that claim terms are typically given their
`ordinary and customary meaning."
` Q. What does that phrase mean?
` A. I am not a lawyer. I'm not rendering opinions
`on legal principles. My understanding comes from
`counsel, and my understanding is that words in a claim
`usually have plain and ordinary meaning.
` Q. So on Paragraph 22, which is on the next page,
`you stated that you applied "the plain and ordinary
`meaning of the claim terms consistent with the
`specification."
` Right?
` A. Yes, I do say that.
` Q. Okay. So what is the difference of the
`"ordinary and customary meaning" of a claim term versus
`the "plain and ordinary meaning" of a claim term?
` A. That seems like a legal question. I don't know
`the answer to the question.
` Q. So you put in phrases in your Declaration you
`don't exactly know what they meant?
` A. No, you're mischaracterizing what I said.
`You're asking me -- well, it looks like you're asking me
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`24
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`a legal question. I'm not here to render legal opinions.
` I understand -- so from my point of view, I
`applied the plain and ordinary meaning of words in the
`claim in rendering my rebuttal opinions.
` Q. Is the phrase "ordinary and customary meaning"
`the same as the phrase "plain and ordinary meaning"?
` A. I have not -- this seems to be like a legal
`question, and I don't have an answer to that question.
` Q. Okay. In Paragraph 23 -- are you there?
` A. Yes.
` Q. Okay. Thank you.
` So you stated, "I understand that in order
`to anticipate a claim, a prior art reference must do more
`than merely disclose each element of the claim, but
`rather the prior art reference must disclose all of the
`elements of the claimed invention arranged as is recited
`by the claim."
` Right?
` A. Yes, that's my understanding.
` Q. What does the sentence "the prior art reference
`must disclose all of the elements of the claimed
`invention arranged as is recited by the claim" mean to
`you?
` A. Those words would have the -- the plain and
`ordinary meaning.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`25
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` Q. So when -- a method claim, having multiple
`steps, does the method require performing the steps in
`the order arranged as is recited by the claim?
` A. No, I think that's an incorrect application of
`the legal principle related to a method claim, because my
`understanding is, with a method claim, the steps or the
`limitations in a method claim are not necessarily
`performed in the order written.
` Q. So how should the order be decided?
` A. That seems to be a legal question. I don't
`have an answer to that question.
` But I do have an understanding that, in a
`method claim, there is no inherent order unless, for
`example, the steps themselves, like you have a step that
`depends on the previous step, so in that sense, there is
`an order, but it would be context dependent.
` Q. In Paragraph 23, the last line, what does it
`mean for a reference to "enable one of the ordinary skill
`in the art at the time of the invention to practice the
`claim without undue" experiments -- sorry -- undue
`"experimentation"?
` A. That seems to be a legal question. I
`understand there is an enablement issue related to -- as
`related to patents and specifications and prior art. I'm
`not rendering opinions on that. So that would not be
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`26
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`relevant to the opinions that I have here today.
` Q. Can you please go to Paragraph 26.
` A. I'm there.
` Q. Thank you.
` You said that you "understand that one must
`consider (a) the level of skill in the art at the time of
`the claimed invention, (b) the scope and content of the
`prior art, (c) any differences between the prior art and
`the claims of the patent-in-suit, and (d) any 'secondary
`factors.'"
` Correct?
` A. Yes.
` Q. You said that one must consider secondary
`factors. Does your analysis take any secondary con- --
`does -- sorry. Does any analysis take any secondary
`factors into consideration?
` A. No, I don't believe I rendered opinions on
`secondary factors. Again, I'm providing rebuttal
`opinions in this case, so -- but I don't believe I've --
`I went into secondary considerations.
` Q. Thank you.
` What does the term "teach away" mean in the
`content of analyzing obviousness?
` A. That seems like a legal question. Again, I'm
`not rendering legal opinions.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`27
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` But my understanding is, if a reference is
`discouraging or doesn't -- is discouraging something,
`then you wouldn't -- if someone is relying on that
`reference that goes against what that reference is
`saying, you would say that reference is teaching away,
`for example, from a combination or teaching away from
`trying something.
` Again, this is a -- this is a legal
`question. But I have an understanding of, you look at
`the contents of the reference, whether it's teaching away
`or not, as one of the things you would consider when
`trying to combine more than one reference for an
`obviousness combination.
` Q. Okay. Please go to Paragraph 41, which is on
`Page 18 of the Declaration.
` A. I am there.
` Q. In Paragraph 41, you provided a construction
`for the channel terms, right?
` A. No, I disagree with that characterization. I
`did not provide a construction. I provided a discussion
`of why I disagree with how the term is being used by
`Petitioner; but I have not articulated a construction.
` Q. Did anyone tell you to apply this
`understanding?
` A. I don't understand your question.
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`Transcript of Robert Akl, D.Sc.
`Conducted on January 5, 2024
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`28
`
` Q. So in Paragraph 41, you mention -- you stated
`"A POSITA would understand that a 'channel' does not have
`to be fully connected on both ends to qualify as a
`channel. Additionally, a POSITA would understand that a
`channel does not have to be actually transmitting
`something to qualify as a channel at that moment."
` Did anyone
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