BY MR. YUNGWIRTH:
Q I'm not sure that answers the question.
If the defendants took the position that their claim
construction they propose for sole memory means that the flash
is the sole memory in the device, you would disagree with that;
isn't that true?
A If we're characterizing memory as memory of any type, that
would, that would not be true because we have, for example,
read-only memory that might store instructions that's in the
figure, for example.
Q When did you start work on this case?
A I don't recall the exact date, but I recall that I was
contacted in the late March or early April time frame, and I
believe I started working on it in late April.
Q You understand that in April the defendants offered a claim
construction position that the term "flash memory" didn't need
to be construed; isn't that correct?
A I'm not necessarily familiar with what the defendants put
forth at that time.
Q Do you recall being deposed in this case?
A I do.
Q Do you recall, during the course of that deposition, the
document that can be found at Exhibit 10 in your notebook was
offered to you and considered by you during your deposition?
Do you recall that?
counsel is seeking to impeach Dr. Mihran's testimony, there's
nothing inconsistent about the fact that a document was put in
front of him and the fact that he doesn't recall.
THE COURT: The question calls for a yes-or-no answer.
We're not quite at the point for that objection.
Yes or no.
THE WITNESS: I'm sorry. The question was have I seen
this document before?
BY MR. YUNGWIRTH:
Q Yes.
A Yes, I have. I recall this was put in front of me at my
deposition, yes.
Q And do you recall the discussion at your deposition that in
this document, the defendants didn't -- or proposed that the
A I believe I recall this now, yes.
Q And it wasn't until several months later that the
defendants changed that position and suggested that the term
"main memory" should be included in a flash memory definition;
isn't that true?
MR. O'SHEA: Objection, Your Honor, this is irrelevant
and moreover outside of the direct -- outside of the report,
Dr. Mihran's report.
THE COURT: I'll construe that objection to be one as
to foundation, and I sustain it.
BY MR. YUNGWIRTH:
Q We've talked today a little bit about some of the things
that are outside the intrinsic record that you reviewed in
connection with coming up with your opinions; do you recall
that?
A I assume I recall Dictionary definitions, for example, yes,
they were not specifically in the intrinsic record.
Q And as part of your analysis in the process of coming up
with your opinions, did you take a look at the Flashback
device?
A I did not have a physical Flashback device to examine.
Q Did you ask your counsel to get one for you?
A I remember I do recall asking if they had one. I don't
recall whether they physically had one or not. I certainly
didn't have access to one.
Q Did you engage in any efforts to acquire one?
A I did not personally, no.
Q The Flashback is referenced in the intrinsic record; isn't
that true?
A I don't know that the term . . . well, let me take that
back.
So as I recall, there were copies of magazine
articles, for example, that I believe refer to the product by
that name.
Q And in addition to those articles, the applicants
specifically told the examiner, it's self-evident that the,
quote, Flashback recorder, end quote, in the exhibits is the
invention disclosed and claimed in the application and thus
satisfy the second requirement of the prima facie case; isn't
that correct?
A I do recall that statement. I recall it because in part I
found it somewhat interesting statement to say it's
self-evident. I didn't know what that meant.
Q And the applicants went on to say, quote, Applicants
further hereby confirm this fact by this response. End quote.
A Yes, I do recall that assertion, yes.
Q So the intrinsic record has statements of the applicants
telling the examiner that the Flashback is an embodiment of the
invention disclosed and claimed in the application; isn't that
correct?
A They made that assertion, that's correct.
