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`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ----------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ----------------------------
` IronSource, Ltd.
` Petitioner
` v.
` Digital Turbine Inc.
` Patent Owner
` -------------------
` Case PGR2022-00053
` Patent No. 11,157,256
` Title: Instant Installation of Apps
`
` DATE: August 7, 2023
` TIME: 11:32 a.m.
`
` VIRTUAL DEPOSITION of DR. ZHUOQING
` MORLEY MAO held at the above date and time,
` before Nicole Veltri, RPR, CRR, and Akilia
` Stewart, Notaries Public of the State of
` New York.
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` ----------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ----------------------------
` IronSource, Ltd.
` Petitioner
` v.
` Digital Turbine Inc.
` Patent Owner
` -------------------
` Case PGR2022-00053
` Patent No. 11,157,256
` Title: Instant Installation of Apps
`
` DATE: August 7, 2023
` TIME: 11:32 a.m.
`
` VIRTUAL DEPOSITION of DR. ZHUOQING
` MORLEY MAO held at the above date and time,
` before Nicole Veltri, RPR, CRR, and Akilia
` Stewart, Notaries Public of the State of
` New York.
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` A P P E A R A N C E S:
`
` HUNTON ANDREWS KURTH LLP
` Attorneys for the Petition
` 50 California Street, Suite 1700
` San Francisco, California 94111
` BY: GARY ABELEV, ESQ.
`
` ACKNOWLEDGE IP P.C.
` Attorneys for the Petitioner
` 6800 Jericho Turnpike, Suite 120W
` Syosset, New York 11791
` BY: PAUL D. ACKERMAN, ESQ.
`
` FENWICK & WEST LLP
` Attorneys for the Patent Owner
` 801 California Street
` Mountain View, California 94041
` BY: JENNIFER R. BUSH, ESQ.
`
`* * *
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` (Whereupon, Exhibit 1001 United
` State Patent '256 was marked as for
` identification as of this date.)
` (Whereupon, Exhibit 1003 United
` States Patent '686 was marked as for
` identification as of this date.)
` (Whereupon, Exhibit 1008
` Declaration of Kevin Almeroth was
` marked as for identification as of
` this date.)
` (Whereupon, Exhibit 2002
` Prosecution History was marked as for
` identification as of this date.)
` (Whereupon, Exhibit 2005
` Declaration of Zhuoqing Morley Mao,
` PhD., was marked as for
` identification as of this date.)
` (Whereupon, Exhibit 2010
` Redirections in HTTP was marked as
` for identification as of this date.)
` (Whereupon, Exhibit 2012
` Declaration of Zhuoqing Morley Mao,
` PhD., in Support of Patent Owner's
` response was marked as for
`
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`Z. MAO
`identification as of this date.)
` Z H U O Q I N G M O R L E Y M A O,
` called as a witness, having been first duly
` sworn by a Notary Public of the State of
` New York, was examined and testified as
` follows:
` EXAMINATION BY
` MR. ACKERMAN:
`Q.
`Please state your name for the
` record.
`A.
`Q.
`A.
` Michigan.
`Good to see you again, Dr. Mao.
`Q.
` I understand since I've deposed you before,
` you understand the process; but I'll just
` remind you that I'm going to ask my
` questions verbally. And in order for the
` court reporter to record your answers, it's
` important that you answer verbally; so if
` you answer with a nod or a shake of your
` head, I will ask you to also confirm with a
` verbal response. Is that all right?
`
`Zhuoqing Morley Mao.
`What is your address?
`2985 Hickory Lane, Ann Arbor,
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`Z. MAO
`
`Yes.
`A.
`And since the court reporter is
`Q.
` trying to record everything we say, it's
` important that we try very hard to only
` speak one at a time; so please let me try
` to finish my question before you answer.
`As a courtesy to Digital
` Turbine's lawyers, if you can wait a beat
` before answering and give Digital Turbine's
` counsel an opportunity to object, that will
` be great; and I'll try to offer you the
` same courtesy of not speaking until you're
` done answering.
`A.
`Sounds good.
`Q.
`And since this is on Zoom, I
` think we both have to wait just that extra
` tenth of a second to deal with all the
` lags.
`
`Yes.
`A.
`You understand that you're
`Q.
` being deposed here today in connection with
` declarations to you provided on behalf of
` Digital Turbine in connection with the
` ongoing Post-Grant review PGR2022-00053,
`
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` Z. MAO
` correct?
` A. That's correct.
` Q. And that Post-Grant review
` involves US patent number 11572256,
` correct?
` A. That's correct.
` Q. If I refer to that patent as
` the '256 patent so shorten it, will you
` understand what I'm referring to?
` A. Yes.
` Q. Perfect.
` Now, you submitted two
` declarations in this matter, correct?
` A. Yes.
` Q. Your first declaration, I
` believe, is marked as Exhibit 2005,
` 2-0-0-5; and that was dated December 22nd,
` 2022. And then you put in a second
` declaration, which has been designated
` Exhibit 2012 and that declaration was about
` six months later and that's dated June 8th,
` 2023; is that correct?
` A. Yes. That's correct.
` Q. The second declaration,
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` Z. MAO
` Exhibit 2012, states that it supplements
` your earlier declaration. That's in
` paragraph one. Do you understand that to
` be the case?
` A. Yes.
` Q. Now, in paragraph two of your
` declaration -- do you have a hard copy of
` your declaration in front of you? I can
` screen share it; but if you have a copy, I
` won't have to --
` A. Yes, I have.
` Q. In paragraph two of your second
` declaration, which is Exhibit 2012, you
` have a listing of materials that you
` reviewed in connection with your
` declaration. Is that list intended to be
` complete?
` A. Yes.
` Q. Now, that list of materials
` reviewed seems to be the same as materials
` that you reviewed in connection with your
` earlier declaration, Exhibit 2005; is that
` correct?
` A. I do not have them to compare
`
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` Z. MAO
` directly, so I cannot tell if they're
` exactly the same.
` Q. Okay.
` Do you recall coming across any
` additional materials in connection with
` your preparation of Exhibit 2012 that you
` hadn't reviewed in connection with your
` declaration that's Exhibit 2005?
` A. I mean, there are extrinsic
` evidence, additional information that --
` that it's included in my declaration. I do
` not know if you count those as material
` reviewed or they are just additional
` evidence in terms of extrinsic evidence I
` include in my latest declaration.
` Q. Was there anything within the
` '256 patent itself that you newly
` discovered that caused you to want to
` supplement your earlier declaration?
` MS. BUSH: Objection, form.
` A. I'm just looking at my latest
` declaration. It states what's -- it
` answers your question in terms of what
` material I used for forming my opinion in
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` Z. MAO
` this declaration. I'm not sure --
` Q. I understand.
` A. Yeah.
` Q. Yes, I understand that. My
` follow-up question was, in between your
` first and second declaration, did you
` recognize or come across some information
` in the '256 patent itself, not extrinsic
` evidence but in the patent itself that
` caused you to want to so supplement your
` earlier declaration?
` MS. BUSH: Objection, form.
` A. Your question seems confusing
` to me, so I form my opinion based on the
` information I used which is stated in my
` declaration.
` Q. What new information did you
` come across, if any, between the two
` declarations that caused you to want to
` supplement your earlier declaration?
` MS. BUSH: Objection, form.
` A. It is not about new
` information. It's about explaining the, I
` guess, explaining the information in more
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` Z. MAO
` clarified ways. I'm not sure if this is
` due to -- I mean, there are other reasons
` you write a new declaration besides coming
` across new information. There are reasons
` to state in the declaration that are just
` to clarify my position, right? This is not
` due to just the fact that I have a second
` declaration, doesn't mean I came across --
` it's not entirely based on coming across
` new information.
` Q. Was there anything in your
` first declaration that you felt was
` incorrect that you wanted to correct in
` your second declaration?
` MS. BUSH: Objection, form,
` scope.
` A. I do not think this is relevant
` to this declaration. I'm here to explain
` my opinion in the second declaration.
` Q. Did you think that there were
` any errors in your first declaration that
` required correcting in your second
` declaration?
` A. This is not what I said. I did
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` Z. MAO
` not say there was error. What I said was
` I'm providing my opinion, which is stating
` the second declaration.
` Q. So would the answer to my
` question be no, you were not trying to
` correct any earlier errors?
` A. As far as I can tell, there are
` no errors.
` Q. How did you determine what
` material in your declaration you wanted to
` supplement in the second declaration?
` MS. BUSH: Objection, form.
` Privileged. You can answer to the
` extent it doesn't reveal confidential
` attorney/client information.
` A. How did I determine,
` determination is based on as part of my
` work to -- as expert witness.
` Q. Did you independently determine
` what material you wanted to supplement in
` the second declaration?
` MS. BUSH: Same objections.
` A. When you say independent, can
` you clarify? I mean, I form my opinions in
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` Z. MAO
` this declaration -- it's my opinion; so
` when you say independent, what exactly do
` you mean by that?
` Q. Did you determine what material
` to include in your second declaration; or
` was that material guided by, for example,
` Digital Turbine's counsel?
` MS. BUSH: Objection to form.
` Privileged. You said answer to the
` extent it doesn't reveal
` attorney/client communications.
` MR. ACKERMAN: And I would
` suggest that to the extent
` communications from counsel that
` formed the basis of her opinion, they
` are not privileged; but, Dr. Mao, you
` can answer if you can.
` A. Well, the opinions are mine.
` So the counselor provides information as to
` what's just background information in terms
` of what's -- what subject matter they would
` like my opinions on, so the opinions are
` entirely mine.
` Q. In preparing the declaration
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` Z. MAO
` that is Exhibit 2012, do you recall
` approximately how much time you spent in
` reviewing the petition that was submitted
` by IronSource?
` A. I do not have the exact number
` of hours, but I did spend quite a bit of
` time.
` Q. Do you believe that you
` reviewed the petition thoroughly?
` A. I believe so.
` Q. In preparing your declaration
` that's Exhibit 2012, do you recall how much
` time you spent reviewing Dr. Almeroth's
` declaration that was Exhibit 1008?
` A. You mean the transcript or --
` Q. No. Dr. Almeroth has a
` declaration in this case that's --
` A. Oh.
` Q. -- that's Exhibit 1008 that you
` comment on at various points in your
` declaration; do you recall that
` declaration?
` A. Yes.
` Q. And do you recall how much time
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` Z. MAO
` you spent reviewing Dr. Almeroth's
` declaration?
` A. Yeah, I was -- well, it was
` many pages so it did take some -- quite a
` lot of time.
` Q. Do you believe that you
` reviewed Dr. Almeroth's declaration
` thoroughly?
` A. I believe so, yes.
` Q. On March 17th, 2023, the board
` of the United States Patent Office
` administering in this case issued what's
` called the institution decision which is
` Paper 10 in this proceeding. Did you have
` an opportunity to review that paper in
` forming any of your opinions expressed in
` your second declaration?
` MS. BUSH: Objection, form.
` A. Can you maybe screen share what
` document this is that you're referring to?
` Q. I can.
` A. Or I think -- I mean, there's
` various documents I reviewed, so I'm not
` sure which one.
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` Z. MAO
` Q. This one is not listed in your
` materials; so I just wanted to know if you
` had, in fact, looked at it?
` A. Is it in one of those exhibits
` that are here in Veritext marked exhibits?
` Q. Are you seeing what's
` designated as Paper 10?
` A. Yes.
` Q. Okay.
` And that is designated as a
` decision granting institution of Post-Grant
` Review?
` A. Yeah. Can you show me the next
` page, please?
` Q. Let me see if I can zoom out a
` bit. So it's a paper that was dated
` March 17th, 2023, in this case; and it is
` a -- it's an extensive paper from the
` United States Patent Office. It's 60
` pages. I don't know if you -- if this
` looks familiar at all. It's okay if you
` haven't reviewed it. I'm just trying to
` understand what you've looked at and what
` you haven't looked at.
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` Z. MAO
` A. Yeah, I'm not sure if I
` reviewed this one.
` Q. Okay.
` A. Yeah. I do not recall if I
` reviewed this one.
` Q. Do you have any understanding
` that in the words institution decision that
` I just showed you, whether you reviewed it,
` do you have an understanding that's a paper
` in which the board elected to move forward
` with these proceedings?
` MS. BUSH: Objection, form.
` A. If that's the decision from the
` boards, yeah, I mean, I guess can you
` rephrase your question? I'm not sure if I
` understand your question.
` Q. Yes.
` Do you understand that this
` document, the decision instituting
` Post-Grant Review is the paper that was
` issued by the United States Patent Office
` after considering the petition and your
` first declaration to go ahead and institute
` this proceeding?
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` Z. MAO
` A. Yes. That's correct.
` Q. Do you recall whether you
` looked at any portions of the institution
` decision that related to opinions that you
` expressed in your first declaration?
` MS. BUSH: Objection, form.
` A. I believe so, yeah. I'm not
` entirely sure.
` Q. Well, we'll get back into it as
` it becomes more relevant. Now, you've also
` provided declarations and testimonies in
` connection with an earlier Post-Grant
` review, PGR2021-00096, which was a similar
` proceeding for US Patent No. 10782951,
` correct?
` A. Correct.
` Q. And that was -- if I refer to
` that as a '951 patent, you'll know what I'm
` referring to?
` A. Yes.
` Q. Would you agree that the claims
` in the '951 patent are very similar to
` those in the '256 patent?
` A. Similar in the sense they are
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` Z. MAO
` on the same subject matter, yes.
` Q. And would you agree that they
` have -- if you compared claim one of the
` '951 patent to claim one of the '256
` patent, would you agree those claims have
` nearly identical recitations?
` MS. BUSH: Objection, form.
` A. Well, I don't have the patents
` memorized. I have to look at the clean one
` in those patents to compare.
` Q. Do you recall as the '951
` patent included a recitation regarding
` redirect to an app store, for example?
` A. Yes, I believe so.
` Q. And the '256 patent also as a
` recitation of redirect to an app store,
` correct?
` A. Yes.
` Q. Sitting here today, are you
` aware of any differences in the way those
` recitations are written in the '951 patent
` and '256 patent in claim one of those
` respective patents?
` MS. BUSH: Objection, form.
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` Z. MAO
` A. Could you help me refer to the
` part of my declaration that your question
` is directed from, it's based on?
` Q. Right now I'm not referring to
` your declaration. I'm asking if it's your
` understanding that the recitations in the
` earlier '951 patent with respect to the
` redirect limitation in claim one is the
` same language that's found in claim one of
` the '256 patent?
` A. I don't have the patents right
` in front of me. I only have my
` declaration; so in order to answer your
` question, you will have to look at the
` claims.
` Q. Okay.
` If I told you that the
` recitations were verbatim between the two
` claims, would you believe me?
` A. It is possible. If that's what
` you say. I assume you're not lying, so I
` would believe you.
` Q. I certainly wouldn't be lying,
` but I might make a mistake; but I don't
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` Z. MAO
` think I am in that one.
` With respect to invoke, do you
` recall that the '951 patent also includes
` a -- I'm sorry, the '951 patent includes a
` recitation of invoke, the installation
` client in claim one?
` MS. BUSH: Objection, form.
` A. Yeah. Both patents have used
` the words invoke. Is that what you're
` asking?
` Q. Yes. Do you have any
` understanding of the differences in -- if
` any, in the recitation in claim one related
` to invoke in the '951 patent versus the
` same recitation in claim one of the '256
` patent?
` MS. BUSH: Objection, form.
` A. So, again, you're talking very
` abstract terms. I don't have the claim one
` in front of me, so it would be better if we
` can -- all I can find claim one and in very
` concrete terms what your question is about.
` I'm trying to bring it up.
` Q. I'm not sure I'll be able to do
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` Z. MAO
` a side by side, but I can show you on the
` '256 patent, for example. '256 patent,
` column 21 starting at line 24, it says
` invoke without exiting said second software
` application, said installation client were
` downloading and installing applications on
` said device to run in the background on
` said device. Do you recall that
` limitation?
` A. Yes.
` Q. And would you like me to bring
` up the '951 patent so you can see that it
` is the same?
` A. If it's verbatim the same, then
` there's no need to bring it up.
` Q. Okay. I'll represent to you
` that it is the same.
` And then we talked about the
` redirect recitation which is found in the
` '256 patent starting at line 39 where it
` says when said installation client is
` unavailable on said device redirect said
` device to an app store for downloading said
` installing first software application to
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` Z. MAO
` said device, and do you recall if there's
` any differences that matter in your
` opinions with respect to that recitation in
` the '951 patent?
` MS. BUSH: Objection, form.
` A. Could you repeat your
` questions? I just didn't fully understand
` what you're asking.
` Q. So the recitation in the '951
` patent, claim one, says, when said
` installation client is unavailable on said
` device, redirect said device to an app
` store for downloading and installing said
` first software on said device. So it looks
` like -- the '256 patent says to said device
` and the '951 patent says on said device.
` So I guess my first question
` would be would that difference in wording
` from "on said device" to "to said device"
` influence any of your opinions in this
` matter?
` MS. BUSH: Objection, form.
` A. Your question, is influence in
` my opinion about what? Can you explain
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` Z. MAO
` what are you asking in terms of what my
` opinion --
` Q. I can try to clarify my
` question.
` You previously offered several
` opinions on the '951 patent, correct?
` A. Correct.
` Q. And that included on this last
` recitation the redirect limitation,
` correct?
` A. I believe so.
` Q. And based on the comparison of
` the '951 patent to the '256 patent, the
` only difference that I saw in those
` recitations was in the last couple of words
` wherein the '256 patent it says, to said
` device and in the '951 patent it says on
` said device.
` My question was, is that change
` in wording from on in the '951 patent to
` two in the '256 patent, does that alter any
` of your opinions in this case?
` MS. BUSH: Objection, form.
` A. I mean, the wording is very
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` Z. MAO
` similar; so I think depending on your
` question, I'm not sure what specific parts
` of the opinion you're referring to.
` Q. I was actually asking very
` broadly if that minor change in wording
` that we pointed out, the one word, if that
` altered your -- any of your opinions with
` respect to the redirect limitation?
` A. I don't believe so; but I
` may -- once you have specific examples, I
` may be able to clarify.
` Q. Sitting here today, you don't
` recall relying on that difference in
` wording to form any different opinions; do
` you?
` MS. BUSH: Objection. --
` sorry, objection, form.
` A. To this to versus on
` difference?
` Q. Correct.
` A. Yes. I do not believe this
` small difference made a difference in my
` opinions.
` Q. Do you know what the outcome of
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` Z. MAO
` PGR2021-00096 for the '951 patent was?
` MS. BUSH: Objection, form.
` A. I do not remember details but
` there was some -- some changes that are
` required.
` Q. Did you review the final
` written decision from the board in
` connection with PGR202100096?
` MS. BUSH: Objection, form.
` A. I think I did, but I don't have
` access to this document right in front of
` me to confirm.
` Q. Did you understand that in
` PGR2021-00096 that the board had disagreed
` with your construction of the term
` redirect?
` MS. BUSH: Objection, form.
` A. If that's what the document
` says, that's right.
` Q. Did the board's rejection of
` your opinion on the proper construction of
` redirect in the prior Post-Grant review
` influence your opinions informing
` construction of redirect in this matter?
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` Z. MAO
` MS. BUSH: Objection, form.
` A. I think it's -- my opinions are
` formed based on my understanding of the
` art; so whether it's the board decides to
` agree with me or disagreed with me, it
` doesn't inference my opinions about what I
` think is the right interpretation of the
` patent content.
` Q. So to the extent your opinion
` is that the term redirect means the same
` thing in connection with the '256 patent
` that you previously opined on and the '951
` patent, if the board disagreed you would
` just believe that their opinion is
` incorrect?
` MS. BUSH: Objection, form.
` A. That's not what I said. I'm
` providing my opinion based on my
` understanding of the subject matter, so
` that's what I did in the declaration.
` Q. Were you aware that in the
` final written decision in connection with
` the '951 patent that the board also
` disagreed with your proposed construction
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` Z. MAO
` for the term invoke?
` MS. BUSH: Objection, form.
` A. Yes. If that's what's written
` in the board's decision.
` Q. Did the board's decision
` influence your construction of the term
` invoked in this proceeding?
` A. Yeah. I think my same answer
` apply to this question as I stated earlier
` when you asked the question regarding
` invoke or redirect. The same answer
` applies here.
` Q. Now, in connection with the
` institution decision that we looked at
` previously which was Paper 10, are you
` aware that the board declined to follow
` your opinion with respect to the
` construction of redirect as it was laid out
` in your first declaration?
` MS. BUSH: Objection, form.
` A. Yes. I think so.
` Q. And did the board's reasoning
` for that disagreement influence your
` opinions in your second declaration?
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` Z. MAO
` MS. BUSH: Objection, form.
` A. Again, I'm providing my
` understanding of the subject matter.
` Q. Now, I believe you said you
` weren't sure if you reviewed the
` institution decisions; is that right?
` A. I do believe I reviewed it, but
` I'm not entirely sure.
` Q. In rejecting your proposed
` construction of redirect, do you recall
` anything that you believe the board
` specifically got wrong?
` MS. BUSH: Objection, form.
` A. So if you could -- so here I'm
` trying to see how your question relates to
` my declaration. Could you help me find the
` part that I'm -- I wrote in my declaration
` that's relevant to your question.
` Q. Well, you do understand that in
` addition to the words that are laid out in
` your declaration, it's appropriate to
` understand how you came to your opinions in
` your declaration, correct?
` MS. BUSH: Objection, form.
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` Z. MAO
` A. How I changed my opinion --
` Q. No. How you arrived at your
` opinions that are in your declaration.
` A. Right.
` Q. So in arriving at your
` opinions, I am wondering if you reached any
` conclusion that the board was incorrect in
` rejecting your declaration, your opinions
` on redirect in Exhibit 2005?
` MS. BUSH: Objection, form,
` scope.
` A. Yeah, again, I provide my
` opinion based on my understanding of the
` subject matter. I do understand the board
` has made its decisions regarding -- yeah,
` my first declaration. So -- but I'm still
` providing the opinion based on my
` understanding.
` Q. I would like to turn to your
` second declaration, Exhibit 2012 for the
` time being and refer you to paragraph 21 of
` that declaration; and in paragraph 21, you
` state -- actually, before I get there, let
` me just ask one follow-up question, since
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` Z. MAO
` submitting this declaration which is
` Exhibit 2012, have you had an opportunity
` to review it?
` MS. BUSH: Objection, form.
` A. When you say review it, do you
` mean read it again?
` Q. Yes. Have you read your
` declaration again and since you submitted
` it?
` A. Yes. I -- yeah. I read it
` again, yes.
` Q. In reading it again, did you
` find any errors that you believe should be
` corrected?
` A. No.
` Q. So turning your attention back
` to paragraph 21, you offer the opinion that
` the term redirect recited in independent
` claims 1, 14, and 21, should be construed
` as, quote, causing the user device to be
` shifted to an app store without requiring a
` user interaction; is that correct?
` MS. BUSH: Objection, form.
` A. Yeah. You're just reading what
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` Z. MAO
` I wrote in declaration, yeah. That's what
` I wrote.
` Q. And that is your opinion
` sitting here today of the proper
` construction of the term redirect?
` MS. BUSH: Objection, form.
` Scope.
` A. This is my interpretation where
` redirect that are -- that is used in these
` claims, in claims 1, 14, and 21.
` Q. And this was the same
` construction that you had proposed in
` Exhibit 2005 that was rejected by the
` board, correct?
` MS. BUSH: Objection, form.
` A. So I think in order to answer
` that question, I need to see -- because
` redirect is mentioned in different claims,
` different places in the patent. Can you
` refer to me where?
` Q. Well, in your prior declaration
` that is Exhibit 2005, in paragraph 62, and
` I can share that if you would like. In
` paragraph 62 of Exhibit 2005 you state the
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` Z. MAO
` term redirect recited in independent claims
` 1, 14, and 21 should be construed as
` causing the user device to be shifted to an
` app store without requiring a user
` int
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