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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` IRONSOURCE LTD.,
`Petitioner,
`
`vs.
`
` DIGITAL TURBINE, INC.,
`Patent Owner.
`
`Case No. PGR2021-00096
`Patent No. 10,782,951
`
` _______________________________________________
`
`DEPOSITION DEPOSITION OF
`ZHUOQING MORLEY MAO, Ph.D.
`Thursday, May 26, 2022
`
` Reported by:
` Laura Taylor Martin
` CSR No. 4158
` Job No. NY5218018
`
`ironSource Exh. 1024
`ironSource Ltd. v. Digital
`Turbine, Inc.
`PGR 2021-00096
`
`212-267-6868
`
`Veritext Legal Solutions
`www.veritext.com
`
`516-608-2400
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`ironSource Exhibit 1024
`ironSource Ltd. v. Digital Turbine Inc. PTAB-PGR2021-00096
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` IRONSOURCE LTD.,
`Petitioner,
`
`vs.
`
` DIGITAL TURBINE, INC.,
`Patent Owner.
`
`Case No. PGR2021-00096
`Patent No. 10,782,951
`
` _______________________________________________
`
`DEPOSITION DEPOSITION OF
`ZHUOQING MORLEY MAO, Ph.D.
`Thursday, May 26, 2022
`
` Reported by:
` Laura Taylor Martin
` CSR No. 4158
` Job No. NY5218018
`
`ironSource Exh. 1024
`ironSource Ltd. v. Digital
`Turbine, Inc.
`PGR 2021-00096
`
`212-267-6868
`
`Veritext Legal Solutions
`www.veritext.com
`
`516-608-2400
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`ironSource Exhibit 1024
`ironSource Ltd. v. Digital Turbine Inc. PTAB-PGR2021-00096
`
`
`
`Page 2
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` IRONSOURCE LTD.,
` Petitioner,
` vs. Case No. PGR2021-00096
` Patent No. 10,782,951
` DIGITAL TURBINE, INC.,
` Patent Owner.
`
` _______________________________________________
`
` VIRTUAL REMOTE DEPOSITION of
` ZHUOQING MORLEY MAO, Ph.D., taken on behalf of Petitioner
` ironSource, beginning at 7:58 a.m. Pacific Standard Time
` and ending at 3:54 p.m. Pacific Standard Time on
` Thursday, May 26, 2022, before Laura Taylor Martin,
` Certified Shorthand Reporter No. 4158.
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` APPEARANCES:
`
` For Petitioner ironSource Ltd.:
` HUNTON ANDREWS KURTH LLP
` BY: PAUL ACKERMAN, ESQ. (Via Zoom)
` BY: GARY A. ABELEV, ESQ. (Via Zoom)
` 200 Park Avenue
` New York, New York 10166
` (212) 309-1000
` paul@acknowledgeip.com
` paulackerman@huntonak.com
` garyabelev@huntonak.com
`
` For Patent Owner Digital Turbine, Inc.:
`
` FENWICK & WEST
` BY: JENNIFER R. BUSH, ESQ. (Via Zoom)
` 555 California Street, 12th Floor
` San Francisco, California 94104
` (415) 875-2300
` jbush@fenwick.com
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`212-267-6868
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`Page 4
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` INDEX
` WITNESS EXAMINATION
` ZHUOQING MORLEY MAO, Ph.D.
`
` BY MR. ACKERMAN 5
` BY MS. BUSH 260
`
` EXHIBITS
`
` PROCEEDINGS MARKED
`
` Exhibit 2005 Declaration of Zhuoqing
` Morley Mao, Ph.D. 12
`
` REFERENCED/ATTACHED
`
` Exhibit 1001 '951 Patent
`
` Exhibit 1002 Prosecution History
`
` Exhibit 1003 '686 Patent
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` Thursday, May 26, 2022
` 7:58 a.m.(PST) - 3:54 p.m.(PST)
`
` ZHUOQING MORLEY MAO, Ph.D.,
` having been given an oath, was examined and testified
` as follows:
`
` EXAMINATION
` BY MR. ACKERMAN:
` Q. Good morning, Dr. Mao. My name is Paul 07:58
` Ackerman and I represent ironSource in this matter. Also
` with me is Gary Abelev, who is co-counsel for ironSource.
` Have you ever been deposed before?
` A. No.
` Q. All right. Well, let me -- your counsel 07:58
` probably went through some of the process, but I'll go
` through it with you anyway, just so we're all on the same
` page.
` I'm going to ask questions verbally, and you
` have to answer them verbally so that the court reporter 07:59
` can record everything you say. So if you answer by
` nodding or shaking your head or some other gesture, I'm
` going to also ask you to give a verbal response as well.
` Is that all right?
` A. Yes. 07:59
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` Q. Cool.
` When I ask questions -- and this has always
` been more important, but it's more important now with
` Zoom. Before you answer, just pause for a little bit.
` Give your counsel an opportunity to object, and also make 07:59
` sure that I'm done with my question. On these Zoom calls
` it can be hard not to talk over one another, but that's a
` nightmare for the court reporter. So just a little extra
` pause will go a long way to make this happen orderly.
` A. Yes. 07:59
` Q. So the purpose of today's deposition is to
` clarify and further understand your opinions. I'm not
` here to trick you. If you don't understand a question I
` ask, it's probably because I asked a terrible question.
` So just ask for clarification and I'll try to ask a 07:59
` better question. All right?
` A. Okay.
` Q. And if you answer a question, I'm just going to
` assume that you understood the question that was being
` asked. 08:00
` We're going to go pretty much all day today.
` Anytime you need a break, just ask, and we'll be happy to
` take a break. We'll probably take a break about every
` hour, but, you know, if you need to take a break for any
` reason, that's fine. The only thing I ask is that if 08:00
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` there's a question pending, that you answer the question
` and then we'll take a break, or we may just -- I may have
` one or two follow-up questions, but we'll break pretty
` shortly after you ask for it.
` Is there any reason why you can't fully and 08:00
` honestly answer my questions here today?
` A. No.
` Q. No medications, no health conditions, nothing
` of that sort?
` A. None. 08:00
` Q. Excellent.
` Have you ever served as an expert witness in a
` patent case before?
` A. No.
` Q. Were you familiar with the patent law concepts 08:00
` that are involved in your opinion before this engagement?
` A. Yes.
` Q. Okay. And how did you become familiar with
` those concepts?
` A. I was involved in creating a few patents 08:01
` with -- through my research work.
` Q. So you were an inventor and -- and you're a
` main inventor on patents?
` A. That's correct.
` Q. But you've never dealt with some of the 08:01
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` analysis that you've covered in this case before?
` MS. BUSH: Objection.
` THE WITNESS: That's correct.
` MS. BUSH: Form.
` BY MR. ACKERMAN: 08:01
` Q. Now, when were you retained by Digital Turbine?
` A. I was retained sometime last year.
` Q. And were you retained by Digital Turbine or
` were you engaged by their lawyers at Fenwick? Do you
` know? 08:01
` A. Yeah, let me correct that. I was retained by
` the lawyers at -- for Fenwick, yeah.
` Q. Have you ever worked with those lawyers before
` this case?
` A. No, I haven't. 08:02
` Q. When you were first engaged by Digital
` Turbine's lawyers, what were you asked to do?
` MS. BUSH: Objection. Form.
` BY MR. ACKERMAN:
` Q. And I will say, Dr. Mao, from time to time 08:02
` your -- Digital Turbine's counsel will object. That
` gives me an opportunity to ask you a different question.
` If I don't, you're still expected to answer the question,
` unless for some reason you're instructed not to answer.
` A. Okay. 08:02
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` Q. So my question was: When you were engaged by
` Fenwick, were you given instructions or tasked with
` specific tasks?
` A. No, I wasn't.
` Q. Okay. At some point were you given specific 08:02
` tasks for this case?
` MS. BUSH: Objection. Form.
` THE WITNESS: At some point I was asked to --
` for my opinion.
` BY MR. ACKERMAN: 08:03
` Q. Okay. And when you were asked to form your
` opinions, what specifically were you asked to do?
` MS. BUSH: Objection, form; and objection,
` privilege.
` The witness may answer to the extent it doesn't 08:03
` violate privilege.
` MR. ACKERMAN: I don't believe there's any
` privilege when it comes to an expert witness.
` BY MR. ACKERMAN:
` Q. So try to answer to the best of your ability, 08:03
` Dr. Mao.
` A. I was asked to review the declaration of the --
` Dr. Kevin Almeroth, and also study other relevant
` material.
` Q. Do you recall which other relevant material you 08:03
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` were provided?
` MS. BUSH: Objection. Form.
` THE WITNESS: For example, the patent that's in
` question.
` BY MR. ACKERMAN: 08:04
` Q. Anything else that you recall?
` A. Other relevant patents that's mentioned by the
` petition.
` Q. Were you asked specific -- were you -- sorry
` about that. Let me start over. 08:04
` Were you asked to focus on anything specific
` with Dr. Almeroth's declaration or just to look at it in
` its entirety?
` MS. BUSH: Objection. Form.
` THE WITNESS: I was asked to focus on -- I was 08:04
` given the patent -- sorry. I was given the declaration
` and study it in its entirety.
` BY MR. ACKERMAN:
` Q. Okay. Were any issues identified for you to
` focus on, specifically? 08:04
` MS. BUSH: Objection. Form.
` THE WITNESS: Can you rephrase that question?
` I don't really understand the question.
` MR. ACKERMAN: Oh, I'm sorry.
` /// 08:04
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` BY MR. ACKERMAN:
` Q. Was there anything specific that you were asked
` to focus on?
` A. Yeah. As I stated before, I was given the
` declaration by Dr. Almeroth. Wasn't given any specific 08:05
` instructions on which parts to -- to focus on.
` Q. And what process did you follow at that point
` to form your opinions?
` A. The process I followed is -- is basically study
` it and try to understand it and use my understanding of 08:05
` the -- the subject matter and try to form an opinion.
` Q. Were you given any guidance from Digital
` Turbine's counsel on how to interpret the claim language,
` for example?
` MS. BUSH: Objection. Form. 08:05
` THE WITNESS: No, I wasn't.
` BY MR. ACKERMAN:
` Q. At some point, though, the attorneys for
` Digital Turbine did advise you on the legal standards and
` the legal framework that would be relevant to your 08:06
` opinions?
` A. Yeah. They gave me the general explanation of
` how the process works, yes. For that, yes, they
` explained to how this -- this whole process works.
` Q. And ultimately there was a declaration 08:06
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` submitted under your name that's been identified as
` Exhibit 2005 in this proceeding, and I believe that --
` let me just see if I can find it. And I believe you
` signed that on March 31st, 2022.
` (Exhibit 2005 marked for identification.)
` BY MR. ACKERMAN:
` Q. I'm just going to share my screen real quick.
` And you should be seeing what I believe is a signature
` page from your declaration.
` Do you recognize that as your signature? 08:07
` A. Yes.
` Q. And you recognize this as the cover page, do
` you, the declaration that you prepared? Correct?
` A. That's correct.
` Q. Now, I don't want to go through it in too much 08:07
` detail, but there is a section called "Legal Standards"
` that runs from paragraphs 11 to 43, which is pages 6
` through 15 of your declaration.
` Is it fair to assume that all of that
` information was provided by Fenwick? 08:08
` A. Can you repeat? Where does it start? 11?
` Paragraph 11 to where?
` Q. Yeah. So on page 6 of your declaration, at the
` top. It's section 4, Legal Standards, starting at
` paragraph 11. 08:08
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` A. Uh-huh. Yes.
` Q. And it runs through paragraphs 43 -- well,
` through paragraph 43 on page 15 of your declaration.
` A. Okay. Can you repeat the question regarding
` those paragraphs? 08:08
` Q. This section provides your understanding of
` certain legal concepts, the scope of post-grant review,
` claim construction, anticipation, obviousness, et cetera.
` That information was provided to you by Digital
` Turbine's counsel. Correct? 08:08
` MS. BUSH: Objection. Form.
` THE WITNESS: This material I agree with. I --
` the -- this -- yeah, to my knowledge, I agree with all
` these paragraphs that you are mentioning here.
` BY MR. ACKERMAN: 08:09
` Q. Right. They explained it to you, you
` understood it, and these are the standards that you're
` going to try to apply in the rest of your opinion?
` A. That's correct.
` Q. In paragraph 28 of your declaration -- and this 08:09
` is part of section d) related to obviousness -- there is
` an indication -- I'll just read it. It says, "Secondary
` considerations include the invention's commercial
` success, commercial acquiescence (i.e., licensing), a
` long felt but unresolved need, the failure of others, 08:09
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` skepticism by experts, praise by others, teaching away by
` others, recognition of a problem, laudatory statements by
` the alleged infringer, and copying of the invention by
` competitors."
` Were you given any evidence by Digital Turbine 08:10
` that would support any of the secondary considerations
` that you list in paragraph 28?
` MS. BUSH: Objection. Form.
` THE WITNESS: Yeah, let me think about this.
` No, they did not. 08:10
` BY MR. ACKERMAN:
` Q. And you're not relying on any secondary
` considerations in connection with your obviousness
` opinions. Correct?
` MS. BUSH: Objection. Form. 08:10
` THE WITNESS: Can you rephrase the question?
` I'm not sure I understood the question.
` MR. ACKERMAN: Sure.
` BY MR. ACKERMAN:
` Q. We'll get to them later, but you have certain 08:11
` opinions with respect to the obviousness of the claims in
` the '951 Patent. And my question was: You did not
` consider any secondary considerations in forming those
` opinions?
` MS. BUSH: Objection. Form. 08:11
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` THE WITNESS: Yeah, what I can say is that I
` followed -- follow what should be done as -- as expert
` witness. That's all I can say.
` BY MR. ACKERMAN:
` Q. You had no evidence of secondary 08:11
` considerations, though. Right?
` A. That's correct.
` Q. And you don't reference any analysis of
` secondary considerations in your declaration. Correct?
` MS. BUSH: Objection. Form. 08:11
` THE WITNESS: Can you define -- well, so the
` definition of secondary considerations are what's stated
` in paragraph 28. Is that correct?
` BY MR. ACKERMAN:
` Q. Correct. 08:12
` I didn't see any analysis of any secondary
` considerations in connection with your obviousness
` analysis. Am I correct that you did not provide that?
` A. I don't recall. I need to go back to the
` specific paragraphs to -- to -- to review this part. 08:12
` Q. All right. We'll address that when we get up
` to obviousness.
` A. Okay.
` Q. Looks like there is not -- one of us -- if I'm
` wrong, I'm wrong. 08:12
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` So you provide a section in your declaration
` called a technology background, and you're starting --
` that starts on page 16 of your declaration at, I believe,
` paragraph 45 -- or 44. And you start in paragraph 45
` with a description of the level of ordinary skill in the 08:13
` art.
` And you have a disagreement with how Dr.
` Almeroth characterized the level of skill in the art. Is
` that correct?
` A. That's correct. 08:13
` Q. Now, in comparing your opinion of what the
` level of skill in the art is compared to Dr. Almeroth's,
` do any of your opinions hinge on those differences?
` MS. BUSH: Objection. Form.
` THE WITNESS: Can you rephrase that question? 08:13
` BY MR. ACKERMAN:
` Q. Yeah. So the disagreement that you have with
` Dr. Almeroth regarding the level of skill in the art,
` would any of your opinions be different if you applied
` Dr. Almeroth's definition as opposed to yours? 08:14
` A. Let me -- yeah, give me a moment. Let me think
` about this.
` I have to review specific opinions. I believe
` most of my opinions would still hold. There might be
` some specific aspects that might differ, but I -- I -- my 08:15
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` opinions that the differences between my definition of
` person of ordinary skill of art is that would need three
` to five years of experience as an application developer,
` so on and so forth, as is stated in paragraph 45.
` Q. As opposed two or more years of computer 08:15
` programming experience, as expressed by Dr. Almeroth?
` A. That's correct. That's what I stated in
` paragraph 45.
` Q. Now, you discuss on your opinions on the state
` of the art at the time of the invention, and just to put 08:15
` us all on the same page, the relevant date is the filing
` date of the '951 Patent, and that's 2018. Correct?
` A. Yes, that's correct.
` Q. So I may not always reference it, if I don't
` say it and we're talking about the state of the art, 08:16
` we're going to assume that we're talking about the state
` of the art in or around February of 2018. Is that fair?
` A. Yes.
` Q. Okay. And just to put things in perspective,
` in the field of mobile devices, the Apple iPhone -- at 08:16
` that point, Apple released the Apple iPhone 10 that year,
` correct, if you know?
` MS. BUSH: Objection. Form.
` THE WITNESS: I don't recall. This is
` something that has to be looked up. I don't remember 08:16
`
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` details of release dates.
` BY MR. ACKERMAN:
` Q. Okay. But by 2018, smartphones were
` ubiquitous?
` MS. BUSH: Objection. Form. 08:17
` THE WITNESS: Yes, that's correct.
` BY MR. ACKERMAN:
` Q. And that would include Apple iPhones and
` various Android devices as well. Correct?
` A. Yes. 08:17
` Q. And as of 2018, there were two primary
` application stores where device users could easily shop
` for and download various applications. Is that correct?
` A. Yeah. If you refer to paragraph 47, that's
` what I stated. There were two popular application 08:17
` stores, The App Store and Google Play Store. These are
` two examples.
` Q. All right. In 47, you're actually citing to
` Dr. Almeroth's declaration, which is Exhibit 1008.
` So Exhibit 1008, paragraph 41, I assume you're 08:18
` agreeing with Dr. Almeroth, since you're citing his
` declaration.
` MS. BUSH: Objection. Form.
` THE WITNESS: What am I agreeing to? Can you
` rephrase that question? 08:18
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` BY MR. ACKERMAN:
` Q. The first sentence of paragraph 47, you say,
` "The downloading of software applications to personal
` computers, such as desktop and laptop computers, has been
` used by the public at large since the 1990s," and you 08:18
` cited Dr. Almeroth. Then you refer to the -- "By 2018,
` many users download software applications using specific
` marketplaces for downloading applications referred to
` as application stores," and you're again citing
` Dr. Almeroth. With respect to The App Store and the 08:18
` Google Play Store, you're again citing Dr. Almeroth.
` With respect to more than 3 million
` applications currently available on the Apple Store and
` Google Play Store, you're also citing Dr. Almeroth.
` A. Could you repeat the question? 08:19
` Q. So I am assuming that since you're citing
` Dr. Almeroth's opinion, you agree with this and we can
` accept this as true.
` MS. BUSH: Objection. Form.
` THE WITNESS: Agree with what? It's -- 08:19
` MR. ACKERMAN: Okay.
` THE WITNESS: -- vague.
` BY MR. ACKERMAN:
` Q. You agree with everything that you say in
` paragraph 47 at this point. Correct? 08:19
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` A. Yes.
` Q. And you're not disputing anything Dr. Almeroth
` said about the statements in paragraph 47?
` MS. BUSH: Objection. Form.
` THE WITNESS: If you look at the context, I 08:19
` said Dr. Almeroth's statements in paragraph 47 -- or 48.
` Actually, I go on and explain that there's unique
` challenges even though those mobile app stores are widely
` prevalent. However, there are still unique challenges
` with downloading and installing these software 08:20
` applications on mobile platforms. That's what we are
` focused on, yeah.
` BY MR. ACKERMAN:
` Q. Okay. We'll get there, I promise.
` A. Okay. 08:20
` Q. So by 2018, there were millions of apps in the
` various app stores.
` Do you have any notion of how many times
` applications had been successfully downloaded and
` installed on a mobile device by 2018? 08:20
` MS. BUSH: Objection. Form.
` THE WITNESS: These app stores are successful,
` but it doesn't mean automatically downloading and
` installing them is an easy task.
` /// 08:20
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` BY MR. ACKERMAN:
` Q. By 2018, do you have an estimate of the order
` of magnitude of the number of times applications were
` successfully downloaded and installed onto mobile devices
` from those app stores? 08:21
` A. So this number can be very large; but, however,
` it doesn't mean the process of automated downloading and
` installing is easy. These are used explicitly -- most of
` these cases, I believe, are used explicitly using the app
` store, directing the app of interest and downloading and 08:21
` subsequently installing them.
` Q. Correct. But right now I'm just focusing on
` the downloading and installing of apps on mobile devices.
` Is it your understanding that that is probably
` happening billions of times by 2018? 08:21
` MS. BUSH: Objection. Form.
` THE WITNESS: I don't have such statistics
` available. I would imagine it's a large number, but I
` don't have the detailed stats.
` BY MR. ACKERMAN: 08:21
` Q. And each time that large number of
` installations took place, there was a successful download
` and installation on a mobile device. Correct?
` MS. BUSH: Objection. Form.
` THE WITNESS: I want to preface that by saying, 08:22
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` the successful download and installing is when user
` visits these app stores, downloading explicitly choosing
` the app to download, and subsequently agreeing to
` installing. And that process, I believe, is the typical
` use of user finding app to install on their devices. 08:22
` Q. And in paragraph 48 it's still talking about
` the state of the art, and you indicate that "Mobile
` devices present a unique challenge to the downloading and
` installation of software applications."
` Paragraph 48 is not limited to the methods of 08:22
` the '951 Patent, is it? This is your opinion on general
` challenges to downloading and installation of software
` applications on mobile devices. Isn't that correct?
` MS. BUSH: Objection. Form.
` THE WITNESS: It's a general statement about 08:23
` it's challenging to download and install applications on
` mobile platforms.
` BY MR. ACKERMAN:
` Q. And fair to say that those challenges that
` you're describing were successfully overcome, agreed to 08:23
` many times by 2018, maybe billions or even more.
` Correct?
` MS. BUSH: Objection. Form.
` THE WITNESS: You're misstating my earlier
` statements. Users successfully downloaded and installed. 08:23
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` It doesn't mean there are users who failed to download,
` at installing successfully.
` BY MR. ACKERMAN:
` Q. In 2018, a person of ordinary skill in the art
` would have been well versed in downloading and installing 08:23
` software applications onto mobile devices, at least by
` using the app store. Correct?
` A. It really depends what the user wants to do.
` I'm sure there are people who was not able to
` successfully download and install. 08:24
` Q. Would you consider those people to be persons
` of ordinary skill in the art in the '951 Patent?
` MS. BUSH: Objection. Form.
` THE WITNESS: Yes, I would -- I would agree
` that there are these people who are part of that 08:24
` category, who are not able to successfully download and
` install.
` BY MR. ACKERMAN:
` Q. So there are people that are within your scope
` of the definition of people of skill in the art in 2018 08:24
` that wouldn't have the skill set to download and install
` an app from the app store?
` A. Again, what you asked is extremely vague and
` out of context. People can install an app successfully.
` Doesn't mean downloading and installing an app 08:25
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` successfully. It doesn't -- it doesn't lead to a general
` statement that installing -- downloading and installing
` application on mobile platform is easy.
` Q. But it was conventional by 2018. Correct?
` A. It is conventional by 2018 that there are app 08:25
` stores for people to download and install applications on
` their mobile platforms. However, it doesn't mean this
` whole process is easy. The popularity doesn't mean --
` the popularity doesn't mean the -- achieving the goal is
` easy. 08:25
` Q. But it does mean that the challenges that you
` described were overcome by the person of ordinary skill
` in the art in order to accomplish that process. Correct?
` MS. BUSH: Objection. Form.
` THE WITNESS: Can rephrase that question? Over 08:26
` what process explicitly are you talking about here?
` BY MR. ACKERMAN:
` Q. So let's take -- let's just take an example
` from paragraph 49 of your declaration. When you say
` "Beyond dealing with a diverse operating system 08:26
` environment, an equally substantial challenge for mobile
` device application developers is dealing with the endless
` variety of hardware differences amongst mobile devices."
` That challenge existed in 2018 with downloading
` and installing applications from the app store. Correct? 08:26
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` A. Yes. These -- these challenges are -- have
` been around for a long time.
` Q. And every time an app was successfully
` downloaded and installed from the app store, those
` challenges were overcome. Correct? 08:27
` A. When people successfully downloaded and
` installed, yeah, they were able to overcome these
` challenges. Correct.
` Q. And that's true when the application was
` downloaded to a tablet or a mobile phone, and it would be 08:27
` true whether it was an iPhone or an Android device.
` Correct?
` MS. BUSH: Objection. Form.
` THE WITNESS: So what I stated in the
` declaration, paragraph 49, is about the -- there are
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