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United States District CourtDistrict of NevadaLas Vegas, Nevada
SYMBOL TECHNOLOGIES, INC., .et al., . Docket No. CV-S-01-701-PMP(RJJ) Plaintiffs . CV-S-01-702-PMP(RJJ) . CV-S-01-703-PMP(RJJ)
vs. . .LEMELSON MEDICAL, EDUCATION .& RESEARCH FOUNDATION, .LIMITED PARTNERSHIP . . Defendant . Las Vegas, Nevada . December 17, 2002 . . . . . . . . . . . . . . . 1:07 p.m.And related cases and parties
COURT TRIAL - DAY 15
THE HONORABLE PHILIP M. PRO PRESIDINGCHIEF UNITED STATES DISTRICT COURT JUDGE
COURT RECORDER: TRANSCRIPTION BY:
ERICA DAVIS NORTHWEST TRANSCRIPTS, INC.U.S. District Court Las Vegas Division
P.O. Box 35257Las Vegas, Nevada 89133-5257(702) 658-9626
Proceedings recorded by electronic sound recording, transcript
002
produced by transcription service.APPEARANCES:
FOR THE PLAINTIFFS: JESSE J. JENNER, ESQ.STEVEN C. CHERNY, ESQ.CHARLES QUINN, ESQ.ALBERT E. FEY, ESQ.KENNETH B. HERMAN, ESQ.WILLIAM McCABE, ESQ.PABLO D. HENDLER, ESQ.JOHN P. HANISH, ESQ.KHUE V. HOANG, ESQ.Fish & Neave1251 Avenue of the AmericasNew York, New York 10020
ELISSA F. CADISH, ESQ.Hale, Lane, Peek, et al.2300 West Sahara Avenue, #800Las Vegas, Nevada 89102
FOR THE DEFENDANTS: GERALD HOSIER, ESQ.8904 Canyon Springs DriveLas Vegas, Nevada 89117
STEVEN G. LISA, ESQ.55 West Monroe, Suite 3300Chicago, Illinois 60603
VICTORIA GRUVER CURTIN, ESQ.LOUIS JAMES HOFFMAN, ESQ.14614 N. Kierland Blvd., 300Scottsdale, Arizona 85254
003
PROCEEDINGS BEGIN AT 1:07 P.M.1
THE COURT: Have a seat everybody. 2
All right. We can have our witness step back up if3
he's -- oh.4
MS. CURTIN: Good morning, Your Honor. Just a5
couple of things. We apologize, but we neglected to move some6
exhibits in on the recross of Dr. Horn, and I'd like to take7
care of that --8
THE COURT: Okay. 9
MS. CURTIN: -- right now if we could.10
THE COURT: Go ahead.11
MS. CURTIN: The exhibits that we would like to move12
in are 11 -- Defendant's 1102, which is the Lemelson '24713
patent, Defendant's 1122, which is the Lemelson '109 patent,14
Defendant's 2186, which is the Lemelson '833 patent, and15
Defendant's 2188, which is the '481 Lemelson patent. Those16
are the ones that I think are not really controversial.17
THE COURT: Is there any objection to those patents?18
MR. JENNER: Having just heard this, I don't think19
so. If they're all Lemelson patents, I would imagine we'll20
have no objection to it.21
THE COURT: All right. We'll receive those subject22
to --23
MS. CURTIN: Okay. 24
THE COURT: -- striking them if there's any basis to25
004
strike them.1
(Defendant's Exhibit Nos. 1102, 1122, 2186 and 2188 admitted)2
MS. CURTIN: There are -- there are couple of more3
controversial ones that Your Honor had reserved during the4
cross-examination of Dr. Horn, and I don't know if you want to5
take those up now or save those for another time.6
THE COURT: Well, I'm reluctant to take time out of7
the witness that we've got here to consider those. I can go8
back through my notes, but why don't we move forward with --9
MR. JENNER: Might I ask Your Honor that counsel10
just get us an e-mail over the evening and let us know what11
those are so we could look at them.12
MS. CURTIN: Absolutely.13
THE COURT: That's great.14
MR. JENNER: Maybe we have no objection, maybe we15
do. Are those the ones that we objected to?16
MS. CURTIN: Yeah, it's the Design News and the17
Inventors at Work and --18
MR. JENNER: Oh, all right. We will maintain our19
objection to those.20
MS. CURTIN: -- the prepositioning charts. 21
THE COURT: Okay. 22
MS. CURTIN: So, we'll address those at a later23
date.24
THE COURT: All right. All right. Thank you, Ms.25
005
Curtin.1
MR. JENNER: Your Honor, on the subject of one quick2
item --3
THE COURT: Yeah.4
MR. JENNER: -- I understand that some of our people5
went over to inspect some exhibits last night. There are6
things that apparently are listed on defendant's exhibit list7
as available for inspection, although it turns out that8
virtually all of them are documents. And they were told that9
we would not be given copies of these documents now. I don't10
understand why. If they're all documents, it seems to me we11
were entitled to have them as documents a long time ago, and I12
would request that we be given copies of the documentary13
exhibits.14
MS. CURTIN: Your Honor, these are almost all books;15
documents is a nice word, but they're books. They're big16
books. The reason why they were for inspection was because17
they have been given the excerpts that are relevant months18
ago; they were allowed to come and inspect the books. Most of19
these they've known of since expert reports were done last20
December. They choose to look at them now. The fact of the21
matter is we are using them as we work with our experts right22
now, and we will copy them as quickly as we can when they are23
not otherwise being used.24
THE COURT: All right. 25
006
MR. JENNER: None of the ones that I've been told1
about, I understand, are books at all. They're -- a lot of2
them are letters --3
THE RECORDER: Excuse me, Mr. Jenner. Can I get4
just have you come --5
MR. JENNER: I'm sorry.6
The ones that I've been told about, a number of them7
are letters, a couple of them are extracts from a Cognex8
website where we can't tell because the website changes what9
they are. There are some photographs. There's an10
instructional manual from a third party semiconductor company,11
apparently. None of those are the books that I understand12
counsel to be talking about.13
THE COURT: Ms. Curtin, are you aware of what --14
MS. CURTIN: I'm --15
THE COURT: -- Mr. Jenner is --16
MS. CURTIN: I'm not aware of those particular17
documents, and I'm sure they were told as they were instructed18
to be told last night that those materials would be copied as19
quickly as we could without interrupting what we were20
otherwise doing. 21
THE COURT: All right. Give me an idea as to --22
MS. CURTIN: But we are intending --23
THE COURT: Obviously, I understand the textbook,24
you're not photocopying while you're preparing a witness, but25
007
the letters that are referred to and so forth.1
MS. CURTIN: If they were available for them to2
inspect last night, I should expect that they would be copied3
by -- in the next couple of days, but I will have to talk to4
our paralegal about that. I had not heard about that 'til5
just now.6
THE COURT: Well, why don't you all maybe, Mr.7
Serra, or whoever is handling that, can get together with you8
and identify what it is we're talking about and -- so you can9
get -- you know, tomorrow morning we won't be in Court, so,10
you can, perhaps, copy 'em then.11
MS. CURTIN: That sounds fine, Your Honor.12
MR. JENNER: Okay. Thank you.13
THE COURT: All right. Tonight or tomorrow morning.14
All right. Mr. McCabe -- oh. Mr. McCabe why don't15
you come on up and continue with Dr. Allais then.16
MR. McCABE: Thank you, Your Honor.17
Before I start, Ms. Andrews identified five exhibits18
that I referred to yesterday that I did not move into19
evidence, and I'd like to move those into evidence now.20
THE COURT: All right. 21
MR. McCABE: I talked to Mr. Hosier about them and I22
understand he has no objection, so, let me just read off --23
THE COURT: All right. 24
MR. McCABE: -- the exhibits.25
008
THE COURT: Just give us the numbers then.1
MR. McCABE: Right. These are all plaintiff2
exhibits, 3523, 3525, 3527, 3526 and 3327.3
THE COURT: All right. Then there being no4
objection, we'll continue -- or we'll receive those then.5
(Plaintiff's Exhibit Nos. 3523, 3525, 3526 and 3327 admitted)6
MR. McCABE: Okay. 7
THE COURT: All right. You may proceed.8
MR. McCABE: Thank you, Your Honor.9
MR. McCABE: I've put up on the screen Plaintiff's10
Exhibit 3525 which was Dr. Allais' summary chart, and where we11
got to yesterday, just to bring us back up to speed, is we12
went through the first two columns, "scanning" and13
"analyzing," and now I'd like to turn to "computer analyzing"14
and "computer processing."15
THE COURT: And that number, again, was 35?16
MR. McCABE: 3525.17
THE COURT: 3525.18
MR. McCABE: Right.19
THE COURT: Thank you.20
MR. McCABE: So, first I'd like to ask Dr. -- for21
Dr. Allais' convenience, I pulled out a few exhibits from his22
exhibit book just so he would have them handy.23
/24
//25
ALLAIS - DIRECT009
DIRECT EXAMINATION (Continued)1
BY MR. McCABE: 2
Q Dr. Allais, could you turn to Plaintiff's Exhibit 3429,3
which is just Dr. Horn's summary chart?4
A Yes.5
Q Okay. Do you understand that Dr. Horn has interpreted6
the terms "computer analyzing" and "computer processing" to be7
limited to specific circuits and things like that in the8
Lemelson patents, specifically situations where location codes9
are assigned to incremental lengths of the video signal,10
either a binary subtraction circuit which subtracts one code11
from another based on the analysis of the video signal to12
indicate the distance between the two codes or a code-matching13
circuit which is used to find a code on a magnetic recording14
medium?15
A Yes, I understand that.16
Q Okay. Do the Symbol scanners utilize any of those17
particular circuits or processes that I just identified?18
A No, they do not.19
Q Okay. If the Court interprets the term "computer20
analyzing" or "computer processing" as Dr. Horn construes that21
-- those terms, do those terms read on the use of the accused22
Symbol scanners?23
A They will not.24
Q Okay. Could you identify in Exhibit 3526 where those25
ALLAIS - DIRECT0010
terms are found?1
A Yes. This exhibits shows the eight independent patents2
that we're dealing with here and, for example, in the '0383
patent, Claim 4, computer analyzing is highlighted in yellow 4
-- excuse me, green, as it also is on the '190, Claim 6, and5
the '205, Claim 1, and the 753106, the '421, Claim 3.6
Q Thank you. Okay. Going back to your summary chart, the7
next column that you had there was "variations," and I'd like8
to address that term now. Do you understand that Dr. Horn9
equates the term "variations" to a number of other phrases,10
and if you look at Exhibit 3463, which was one of Dr. Horn's11
summary charts that I pulled out -- do you have that?12
A Yes, I have that.13
Q Okay. Do you understand that Dr. Horn equates the term 14
-- his definition of "variations" to cover the terms15
"predetermined variations," "variably optically scannable16
information," and the other terms that are shown on Exhibit17
3463?18
A Yes, I do.19
Q Okay. Do you understand that Dr. Horn construes the20
terms "variations" to mean differences in brightness resulting21
from structural characteristics of an object that marks a22
change in brightness, for example, from light to dark?23
A Yes, he does that.24
Q Do you understand that Dr. Horn's claim construction of25
ALLAIS - DIRECT0011
variation does not include bar code symbols?1
A Yes, he has made that statement, and I understand that.2
Q Okay. Would you identify which of the asserted claims3
includes the term "variations" as Dr. Horn construes that4
term?5
A Well, that would be all eight of the independent claims6
check marked on Exhibit 3525.7
Q Okay. If the Court construes the term "variations" in8
the manner that Dr. Horn advocates, does that term read on any9
of the accused Symbol scanners?10
A No, it does not.11
Q I'd like to turn specifically to Claim 14 of the '91812
patent for a minute, and that's in Exhibit 3526 where you've13
highlighted it. Do you have that, sir?14
A Yes.15
Q Okay. Do you see that it refers to predetermined16
variations?17
A Yes, I do.18
Q Is there anything predetermined about the changes in19
brightness from light to dark within a bar code?20
A Absolutely not.21
Q Can you give us an example to illustrate the lack of22
predetermined variations in a bar code?23
A Well, I believe we have -- one of the exhibits is kind of24
illustrative of that. One example would be if a bar code is25
ALLAIS - DIRECT0012
quite far for the scanner, you get an extremely small signal,1
if it's close to the scanner, you get a much larger signal,2
and I think we have an exhibit to that effect.3
Q Let me turn to a still from Exhibit 3524, and it's marked4
as 3524C. Could you tell us what's shown in that exhibit? 5
It's on the screen if that helps you. Dr. Allais, I put --6
A Oh, it's on the screen. Okay. 7
Q It's on the screen.8
A Yes.9
Q Could you explain what's shown in that graphic or that10
still?11
A Oh, okay. The yellow signal at the top is the analog12
signal out of the photodiode which is, you know, the image13
that we have of the -- of the optical scene being scanned, and14
you can see that's a very, very faint signal. In fact, you15
can hardly tell the bar code part from the background.16
Q Okay. Let me go to the next still in that exhibit, and17
could you tell us what that shows, sir?18
A Yes. That shows the scanner up close to the bar code.19
Again, the yellow signal at the top is the analog signal, and20
here you see a very high amplitude signal with a lot of return21
light to the scanner, so, between these two, there's22
absolutely nothing predetermined about that signal.23
Q Okay. And just so the record is clear, is it your24
understanding that it's the same bar code in both examples25
ALLAIS - DIRECT0013
there?1
A The bar code is the -- yes. It's the portion in the2
middle of this one, and on the prior one it was the one that3
was a little bit darker than the rest of it.4
Q Okay. 5
MR. HOSIER: What's this exhibit?6
MR. McCABE: I've just been corrected, it's not 34 7
-- 3524C, it's 3254C. I apologize for mixing up the digits.8
BY MR. McCABE: 9
Q Does the use of the accused Symbol scanners meet the10
predetermined variations limitation of Claim 14?11
A It does not.12
Q Okay, I'd like to turn to the last column in your chart13
which is "memory"?14
A Yes.15
Q Okay. Do you understand that Dr. Horn construes the term16
"memory" as used in the Lemelson patents to mean a linear17
magnetic tape, magnetic drum or magnetic disk memory?18
A Yes.19
Q Okay. Could you point out where in the claims the term20
"memory" is found?21
A Yes. Memory is found in the '029 patent, in the '07322
patent, in the '205, in the '753, and in the '421.23
Q Okay. And you've highlighted those -- that term?24
A Yes. Whichever exhibit we had, those are highlighted in25
ALLAIS - DIRECT0014
what looks like pink.1
Q Okay. That --2
THE COURT: 3526, I think?3
MR. McCABE: Yes, Your Honor. 3526.4
BY MR. McCABE: 5
Q Do any of the accused Symbol scanners store data in any6
of the magnetic media that I just identified, namely, magnetic7
tape, magnetic drum, or magnetic disk memory?8
A No. They strictly use electronic memory.9
Q Okay. In your opinion, if the Court interprets the term10
"memory" in the same manner as Dr. Horn does, does that term11
read on the use of the accused Symbol scanners?12
A It does not.13
Q Okay. Now I'd like to turn from Dr. Horn's constructions14
to the partnership's constructions of the terms and march15
through the terms in a similar -- or the claims in a similar16
fashion?17
A Very good.18
Q Okay. And by the partnership's constructions, I'm19
referring to the exhibit that was attached to, I believe it20
was Dr. Williamson's December 2001 expert report. Dr. Allais,21
have you reviewed the Lemelson Partnership's claim22
constructions?23
A Yes, I have.24
Q Have you reviewed the Lemelson Partnership's infringement25
ALLAIS - DIRECT0015
analysis as applied to the Symbol scanners?1
A Yes, I have done --2
Q Okay. 3
A -- done that, too.4
Q Have you formed an opinion as to whether the asserted5
Lemelson claims read on the use of the accused Symbol bar code6
scanners when the claims are interpreted using the Lemelson7
Partnership's claim constructions?8
A Yes, I have.9
Q What is your opinion?10
A My opinion is that the Symbol accused products do not11
infringe under the partnership's claim instruction -- claim12
construction.13
Q Why is that?14
A Well that is because for every claim, at least one claim15
element does not read on the use of the Symbol scanners.16
Q Okay. Before we get to the details of the claims, have17
you prepared a graphic to aid your testimony?18
A Yes, I have.19
MR. McCABE: I've put Exhibit 3528 up on the screen,20
and I'll ask Mr. Serra to just bring up a poster of that so21
that Dr. Allais can point out some things on the poster.22
THE COURT: What's that number again?23
MR. McCABE: 3528 is what I have.24
THE COURT: 3528? Thank you.25
ALLAIS - DIRECT0016
(Off-record colloquy re graphic display)1
BY MR. McCABE: 2
Q Okay. Could you explain your graphic to the Court,3
please?4
A Yes. What I've illustrated here is each of the principal5
signals or data in the Symbol scanner as explained earlier by6
Mr. Schuessler. I've eliminated some of the minor things like7
amplification and filtering, and simply put the major signals8
and data on the cart.9
Q Okay. At the left, you show a jar of hand cleaner?10
A Well, that would be --11
Q What does that signify?12
A -- that would be this.13
Q Okay. That's our old friend from the beginning of this14
trial. Could you walk us through the different steps that you15
have there and then explain the significance of the arrows?16
A Yes. The steps proceding from -- and, in fact, the flow17
of signals is from left to right in the chart. Immediately to18
the right of the hand cleaner is the analog signal out of the19
photodiode, or its amplified equivalent. 20
Moving further to the right is the differentiated signal21
which is used to identify the points of maximum slope between22
the dark and light areas and light and dark areas. Moving23
further to the right is the digital bar pattern, sometimes24
abbreviated DBP, where the peaks in the differentiated signal25
ALLAIS - DIRECT0017
determine the transitions from light to dark.1
Continuing on is the clock counts that represent each2
segment of light and darkness, and, finally, at the extreme3
right is the decoded data which, in fact, was the data encoded4
in the bar code on the hand cleaner.5
Q Okay. What exhibit is the hand cleaner there? Just --6
could you just tell us the number so the record is clear?7
A Okay. Exhibit PTX-3255I.8
Q Okay. You finished up with the decoded data. Now could9
you tell us what the arrows immediately before the decoded10
data signify?11
A Well, the arrow pointing to the left shows that the clock12
counts when subject to the decoding algorithms hopefully13
result in the data, that perhaps they result in nothing if the14
decoder fails to decode, but --15
Q Okay. Let me -- let me just stop you there for a second. 16
You said the arrow pointing to the left. From my standpoint,17
it looks like the arrow pointing to the right?18
A You're right.19
Q Okay. 20
A Thank you for correcting that. The arrow pointing to the21
right shows that the clock counts can become decoded data. 22
The crossed-out arrow pointing to the left signifies that from23
the decoded data you cannot go back and reconstruct the clock24
counts.25
ALLAIS - DIRECT0018
Q Okay. And is that why there's a red X through the return1
arrow?2
A That's why there's a red X through the arrow.3
Q Does that signify it's kind of a one-way street?4
A It is.5
Q Okay. Now, moving from let's say the digital bar pattern6
to the clock count, you have a different type of arrow shown7
there. Could you explain that?8
A Well, while you can't go back precisely from the -- from9
the clock counts to the digital bar pattern, subject to10
rounding error and quantizing error in the clocking, you could11
recreate a reasonable facsimile of the digital bar pattern. 12
So I simply treat that as an approximately two-way process.13
Q Okay. And would that be true also for the step between14
differentiated signal and the digital bar pattern?15
A Yes. You would lose some amplitude information, but you16
could find the major peaks going backwards from the digital17
bar pattern.18
Q Okay. And how about from the analog signal to the19
differentiated signal?20
A Well, the differentiated signal, you have really lost all21
of the amplitude information of the analog signal which cannot22
be reconstructed from that differentiated signal.23
Q Okay. How about from the hand cleaner to the analog24
signal?25
ALLAIS - DIRECT0019
A Well, again, from the hand cleaner -- for the analog1
signal, you know nothing about the size, contrast, you know,2
you don't know very much about it except that that's the3
signal that the photodiode got.4
Q Okay. 5
A So you can't go back to the -- to the bar code from6
there.7
Q Okay. I'd like to just return to have you explain in a8
little more detail why it is you cannot go from the decoded9
data to the clock counts?10
A Well, in broad terms, from the decoded data, you would11
have no idea what those individual counts are, and even if you12
just wanted to have a facsimile of the counts, the decoded13
data doesn't even tell you what bar code symbology you had, so14
you know nothing about it.15
Q Okay. Now, when the bar code is scanned, if the position16
of the bar code relative to the scanner changes, does that17
have any effect on the counts?18
A Oh, yes. If -- at a long distance with the same bar19
code, you'll have very low number of counts; when you're up20
close, of course, it's just like if I were standing right next21
to you, you'd look large, and so -- and so you get large22
counts.23
Q Okay. Does changing the position of the bar code scanner24
relative to the bar code symbol change the decoded data?25
ALLAIS - DIRECT0020
A No. As long as it decodes, it's exactly the same.1
Q So, you could get different sets of counts, but same2
decoded data --3
A Yes.4
Q -- depending on positioning?5
A Certainly.6
Q Okay. Okay. I'd like you to turn to Exhibit 3528 -- I'm7
sorry, Exhibit 3364, which is an excerpt, I've just put in two8
pages from Mr. Schuessler's decode explanation.9
A Oh, yes, I see that.10
Q And I'd like to turn to the second page, which is the11
last page in the exhibit.12
A Okay. 13
Q Okay? Could you explain what's shown on that page?14
A Well, what's shown on the page, if you recall that Rick15
Schuessler actually scanned a UPCA symbol, and after16
identifying the quiet zones, he determined that there was a17
guard bar pattern, a left-guard pattern shown with the numbers18
702865, and a corresponding right-guard pattern at the other19
end with the numbers 9434103. Now, you couldn't even get to20
here proportionally if you didn't tell me that we just scanned21
a UPC symbol.22
Q Okay. 23
A That -- we'd have to know that.24
Q Okay. Now from the decoded data, would there be any way25
ALLAIS - DIRECT0021
to come back to these particular clock counts?1
A Well, absolutely not. And, in fact, you couldn't even2
get back to properly proportioned clock counts, because, if3
you recall, the guard-bar pattern in the UPC is nominally a4
bar of one module wide, followed by a space of one module5
wide, followed by a bar of one module wide, so that when we6
look at the guard-bar pattern here, if the symbol were7
proportioned nominally with no ink spread, we would expect8
approximately equal counts, but what we see here is that the9
space is less than half of the width of the bars, owing to ink10
spread in the original symbol.11
Q Okay. And the space is the number -- represented by the12
number 28?13
A That's right. The light -- the gray number 28 represents14
the space in the guard pattern.15
Q Okay. And the numbers 70 and 65 represent the bars in16
the left guard-bar --17
A That's correct. 18
Q -- guard-bar pattern? And is the same also true for the19
right with respect to the ratios?20
A Yes. On the right side we can see that the difference is21
even more extreme. The space here is less than -- well,22
approximately a third of the widths of the bars. And we also23
notice going from the left end of the symbol to the right end24
of the symbol that the bars themselves have grown perhaps half25
ALLAIS - DIRECT0022
again as wide. So, none of this could be ascertained from the1
ideal UPC symbol which one might reconstruct from the decoded2
data if he knew it was UPC.3
Q But you don't know from the decoded data, do you?4
A Well, you don't know any of that. No.5
Q Do you know it's a UPC symbol?6
A You don't even know that.7
Q Okay. So, that, in effect, is why it's a one-way street?8
A Yes, it is.9
Q Okay, let me ask you this. Can you recreate the bar code10
symbol from the decoded data? We saw that you couldn't11
recreate the clock counts; now I want to know, could you12
recreate the bar code symbol?13
A Well, absolutely not. You know, if you told me that the14
decoded data came from a UPCA bar code symbol --15
Q Right.16
A -- I could draw you an idealized UPCA symbol, but it17
would bear no physical relationship to the -- to the bar code18
scan.19
Q Okay. If I told you it was a UPCA symbol, would you be20
able to figure out the size, color, the amount of ink spread,21
things like that in the actual symbol?22
A None of that information could be -- could be determined23
from the decoded data.24
Q Okay. From the analog signal on the chart, can you25
ALLAIS - DIRECT0023
recreate what the bar code symbol looked like?1
A No, you can't do that, all you -- all you see is what the2
photodiode saw, but you don't know how far away it was,3
whether it was far away and dark black or up close and light4
gray or green or blue or purple.5
Q Can you get many different analog signals from the same6
bar code symbol?7
A Oh, absolutely, depending on distance, depending on pitch8
angle, depending on position along the scan line, et cetera.9
Q Okay. I'd now like to turn to the claim charts, which I10
believe are Exhibit 3529. Do you have that, sir?11
A Yes, I do.12
Q Okay. Would you explain Exhibit 3529, what that13
represents?14
A Yes. Here we have the -- on the first page, the Claim 1415
of the '918 patent. On the left is text of the claim itself,16
and on the right is Dr. Williamson's construction of that17
claim in italics.18
Q Okay. And there are certain portions that are19
highlighted. Could you explain the significance of --20
A The highlighted --21
Q -- the highlighting?22
A -- portions are the ones that I wish to point out in the23
ensuing discussion.24
Q Okay. Could you turn to, I guess, the first chart, the25
ALLAIS - DIRECT0024
first page of that exhibit and tell us which elements, if any,1
are not met by the use of the Symbol scanners?2
A Yes. In the '918 patent, Claim 14, Eelements A, B and C3
do not read on the Symbol products.4
Q Okay. Starting with the section that you highlighted in5
blue which shows up in step A, would you explain how that step6
is not met by the use of the Symbol bar code readers?7
A Well, the claim itself says positioning a surface in the8
scanning field, et cetera.9
Q And how does the Lemelson Partnership construe that to10
mean?11
A They construe that to be putting an exterior or outside12
part of an object in a particular place in the area or region13
of observation.14
Q Is that done in the Symbol scanners?15
A No. As you recall, the scanner can go out here and the16
object to be scanned could be at the extreme left, in the17
middle anywhere, at the extreme right, and so that's -- that's18
certainly not met.19
THE COURT: Do you interpret that language of Dr.20
Williamson's putting an exterior outside part, et cetera, as21
being equivalent to prepositioning, the term that's been --22
THE WITNESS: Well, you could -- you could interpret23
that, yes. I mean, it's certainly positioning in a particular24
place is pretty definite. And the -- when they talk about the25
ALLAIS - DIRECT0025
scanning field, that's the, you know, the whole triangle of1
laser light going out from the scanner, and so that would2
imply that you have to have it in a particular place, or3
prepositioned, if you like.4
THE COURT: Go ahead.5
MR. McCABE: Okay. 6
BY MR. McCABE: 7
Q Can we move to step B of Claim 14 of the '918 patent? Do8
you have that, sir?9
A Yes.10
Q Okay. You've highlighted in yellow "to generate control11
signals from portions of said output signal of predetermined12
intensity." How does the Lemelson Partnership construe that13
term?14
A Well, they talk about from parts of the output signal15
having a predefined or a preselected magnitude strength or16
amount.17
Q Okay. Let's just focus on output signal for one second18
here. What output signal do you understand that to be19
referring to in step B?20
A Well, if we go back to step A, that calls for the output21
signal to vary in intensity with variations in the intensity22
of radiation of the field scanned, so that can only be the23
signal out of the photodiode or the amplified signal24
thereafter, and I don't think the partnership disagrees with25
ALLAIS - DIRECT0026
that interpretation.1
Q Given that understanding of the output signal, is the2
output signal from the photodiode in the Symbol scanners, does3
it have a predefined or preselected magnitude strength or4
amount?5
A Absolutely not. We've seen symbols far away and up close6
here just a moment ago that had extremely different amplitude7
strength or amount.8
Q So, is that Claim Element B met by the use of Symbol9
scanners?10
A No, it is not.11
Q Okay. Now you've highlighted -- I'd like to move to step12
C now, step C.13
A Okay. 14
Q You've highlighted "to generate digital code signals15
indicative of the locations of the predetermined variations in16
said scan field." Do you see that, sir?17
A Yes.18
Q How does the Lemelson Partnership construe that term?19
A They talk about creating detectable indicators used to20
convey information signifying or pointing out the particular21
position of the predetermined variations in the scan field.22
Q Do Symbol scanners do that?23
A Well, I believe that the partnership, Lemelson24
Partnership, identifies predetermined variations as being the25
ALLAIS - DIRECT0027
bar code, and, of course, that's not predetermined, but aside1
from that, the location can be anywhere in the scanning field,2
and therefore that claim element is not met.3
Q Okay. Could you just explain what you mean by it could4
be -- the location could be anywhere in the scan field?5
A Well, at a minimum, if you think of a scanning line going6
out, the symbol can be at the left, in the middle, in the7
right, anywhere along that line, or it could be very close. 8
For example, this scanner will scan virtually in contact or9
out a standard symbol perhaps a foot and a half away. So10
there's tremendous variation within the range of operation11
where you can put an object.12
Q Okay. In that element C, it talks about generating13
digital code signals, do you see that? What do you understand14
that to be in -- as the Lemelson Partnership reads this claim?15
A Well, I would -- I would understand that is -- would have16
to be the decoded data.17
Q Okay. So, does the decoded data tell you where the bar18
code symbol was in the scan field?19
A No, it doesn't even tell you what kind of symbol you20
have, so, let alone where it is.21
Q Okay. Okay. Do you have an example of a -- well, we22
don't need to show that. I think we can move to the next23
claim now, the '038, Claim 4? Do you have that claim?24
A Yes.25
ALLAIS - DIRECT0028
Q Okay. Which steps of Claim 4 of the '038 patent are not1
met by the use of Symbol scanners under the Lemelson2
Partnership's claim construction?3
A Well, that would be steps D, E and F.4
Q Okay. All right. Would you like to start with step D5
which you've highlighted in blue? Do you have that?6
A Yes.7
Q Okay. You've highlighted "generating electrical control8
signals." How does the Lemelson Partnership construe that9
term?10
A Well, they read that to be signals used to convey11
information for directing or commanding.12
Q Do you understand what the Lemelson Partnership reads13
that claim element on in the Symbol scanners?14
A Yes. Our best understanding is that they read this to be15
the digital bar pattern signal.16
Q Okay. Is the digital bar pattern signal an electrical17
control signal?18
A No, it is not. In the world of digital design, you have19
two kinds of signals, you have data signals and you have20
control signals. The digital bar pattern, provided it21
contains any data, is strictly a data signal; it's not used in22
any way to command or control.23
Q So, is that step, step D, met by the use of the Symbol24
scanners?25
ALLAIS - DIRECT0029
A It is not.1
Q Okay. Okay. Could you turn to step E?2
A Yes.3
Q And let's start with the portion that you highlighted in4
yellow, "computer analyzing said electrical control signals."5
How do you understand the Lemelson Partnership to interpret6
that phrase?7
A Well, their interpretation of computer analyzing is using8
a programmable electronic machine with addressable memory that9
can store, retrieve and process instructions and data.10
Q And I think you previously testified that the electrical11
control signals, you understood those to be the digital bar12
pattern?13
A That's my understanding of their interpretation of that. 14
Yes.15
Q Okay. Does -- do any of the accused Symbol scanners16
computer-analyze the digital bar pattern?17
A No. The computer built into the decoder of the Symbol18
product analyzes the clock counts. It's incapable of directly19
analyzing the digital bar pattern.20
Q So, that step E would not be met?21
A It would not.22
Q I see that you've also highlighted in pink the term23
"generating coded electrical signals defining at least one24
variable detected during scanning"?25
ALLAIS - DIRECT0030
A Yes.1
Q How does the Lemelson Partnership construe that phrase?2
A Well, that's kind of long. They talk about creating3
detectable indicators using electricity based upon a set of4
numbers, symbols or other data used to represent and convey5
information that signify at least one characteristic that may6
change and that is discovered or ascertained during scanning.7
Q In the portion of part E that you highlighted in pink8
from the claim itself, not from Dr. Williamson's construction,9
there's a term "variations" -- or, I'm sorry, "variable10
detector" --11
A Variable detector.12
Q -- "variable detector." What do you understand that13
variable to be?14
A Well, I would look back at Claim B where I've highlighted15
"variable optically scannable information," and I believe that16
must refer to the same thing, so, we're talking about really17
variations that occur in the analog signal or in the original18
object, that's actually in the object itself, over at the hand19
cleaner, what the bar code looks like.20
Q What do you base that on? Is it based on the21
partnership's construction?22
A Well, "controllably moving said radiation beam scanning23
machine containing" -- well, yeah. I mean, that's in the24
object, and Dr. Williamson talks about changes in properties25
ALLAIS - DIRECT0031
associated with visible light, so, that's the light reflecting1
characteristics of the original object.2
Q What variable is detected by the Symbol scanners during3
the scanning movement of the beam?4
A Well, simply -- simply the analog signal is its best5
representation of that variable.6
Q Does the decoded data, which I understand is the coded7
electrical signals of this claim --8
A Yes, that's how they interpret that.9
Q Does the decoded data tell you anything about the10
appearance or optical properties of the item scanned?11
A Absolutely nothing.12
Q Does the decoded data define anything about any variable13
detected during scanning movement of the beam?14
A No.15
Q Does the decoded data tell you anything about the16
characteristics of the symbols scanned?17
A It does not.18
Q Does the decoded data tell us anything about the19
reflectivity of the symbols scanned?20
A No, it doesn't.21
Q Does the decoded data tell us anything about the size of22
the symbols scanned?23
A Not even the size.24
Q Does the decoded data tell us anything about the color of25
ALLAIS - DIRECT0032
the symbols scanned?1
A There's no color information in the decoded data.2
Q Does the decoded data tell us whether there was ink3
spread in the symbols scanned?4
A No, doesn't tell you that.5
Q Does the decoded data tell us the symbology of the6
symbols scanned?7
A Not even that.8
Q What then does the decoded data tell us?9
A Decoded data simply tells you, in this case of the hand10
cleaner, the numbers that appear printed under the bar code,11
which was what was encoded in the bar code. That's all you12
get.13
Q Do any of the Symbol laser scanners accused of14
infringement generate any signals that indicate what the15
actual symbols scanned look like?16
A They do not.17
Q In your opinion, is step E not met for the reason that18
the decoded data does not define at least one variable19
detected during scanning?20
A Yes, that's true.21
Q I just want to move to step F of that claim. Do you have22
that, sir?23
A Okay. 24
Q Okay. There you've highlighted "employing said coded25
ALLAIS - DIRECT0033
electrical signals" which, again, would be the DBP?1
A Yes. No, wait. Coded electrical signals are the decoded2
data.3
Q Oh, I'm sorry. The decoded data. And it -- you've4
highlighted to indicate the information electro-optically5
detected by the scanning movement of said beam?6
A Yes.7
Q How does the Lemelson Partnership construe that term?8
A Well, they talk about using the coded electrical signals9
to point out, signify or represent the information electro-10
optically detected by the scanning motion.11
Q Okay. Does the decoded data point out any of that12
information?13
A The decoded data has -- has no optical information in it14
whatsoever, it's simply a string of digits or letters.15
Q In your opinion, is step F met by the accused -- use of16
the accused Symbol scanners?17
A Step F is not met.18
Q Can we turn to the next claim -- the next patent, which19
is the '029 patent, Claim 12? Which steps, if any, of that20
claim are not met?21
A Well, steps C and D.22
Q Would you start with step C where you've highlighted23
"generating first information signals corresponding to the24
detected contrasting image portions of the image field25
ALLAIS - DIRECT0034
scanned"? Do you see that?1
A Yes, I do.2
Q How does the Lemelson Partnership construe that term?3
A Well, they talk about creating first detectable4
indicators having data organized so it is meaningfully5
analogous to the detected comparatively different image parts6
of the image field scanned.7
Q What do you understand the Lemelson Partnership to read8
the first information signals to be?9
A I believe the first information signals are identified by10
the Lemelson Partnership to be the decoded data.11
Q Does the decoded data correspond to any image portions of12
the field scanned?13
A No. As we've talked about before, there's no14
relationship whatsoever between the image as scanned and the15
decoded data, which is simply the extracted information from16
the bar code symbol.17
Q In your opinion, is step C met?18
A It is not.19
Q Could we turn to step D where you've highlighted20
"electrically comparing said first information signals with21
signals from recordings in a memory which are indicative of22
said select image phenomena"?23
A Yes.24
Q How does the Lemelson Partnership interpret that phrase?25
ALLAIS - DIRECT0035
A They use the text "examining by using electricity to1
discover" --2
Q Well, you don't need to -- you don't -- you don't need to3
read it in?4
A Okay. 5
Q This the material you highlighted in yellow?6
A Yeah. That's right.7
Q Okay. And you've testified that you understand the first8
informationa signals to be the decoded data?9
A Yes, I do.10
Q Okay. Do Symbol scanners compare any signal with signals11
from -- that are recorded in memory in order to decode a bar12
code?13
A There's -- there's no comparison with signals from14
signals recorded in a memory within the Symbol scanners.15
Q Now, don't the Symbol scanners transmit the decoded data16
to the host computer?17
A Yes, that is normally the case.18
Q When the decoded data is sent to the host computer, is19
there some type of look-up that is done?20
A Well, typically the decoded data would -- would become an21
index into a file and would probably match up or match up22
largely with something called the product code, which is23
what's encoded in the UPC. And so, in that sense, in the24
host, the decoded data is compared to that recorded product25
ALLAIS - DIRECT0036
code.1
Q Does that information in the host computer provide any2
information about the select image phenomena that had been3
scanned?4
A No. The product code simply tells you, you know, almost5
the same thing that you had in the numbers underneath the bar6
code symbol, and then that's associated typically with the7
price of the item, the description, the inventory numbers,8
various things like that. None of that data in the host has9
any relationship to the physical bar code or what it looked10
like.11
Q Okay. Is it your opinion that step D is also not met?12
A That's true.13
Q Okay. Could we turn to the next claim which is the '07314
patent, Claim 7?15
A Yes.16
Q Which steps of that claim are not met by the use of the17
Symbol scanners?18
A That would be steps C, D and F.19
Q Let's start with step C where you've highlighted20
"generating first information signals corresponding to the21
optical characteristics of the image field scanned."22
A Yes.23
Q What do you understand the Lemelson Partnership to24
determine first information signals on?25
ALLAIS - DIRECT0037
A Well, it's the part highlighted in yellow, and 1
includes --2
Q We're on C?3
A In blue --4
Q Yeah.5
A -- and includes the phrase "analogous to the optical6
characteristics of the image field scanned," which is7
consistent with the claim.8
Q What do you understand the first information signals to9
be based -- from the Lemelson infringement analysis?10
A First information signals here in step C would be11
identified by the Lemelson Partnership as the decoded data.12
Q I'm going to ask it again just to make a nice record13
here. Does the decoded data correspond to any optical14
characteristics of the field scanned?15
A It does not.16
Q You've mentioned that step D is also not met, and step D17
requires "electrically comparing said first information18
signals with signals from recordings in a memory which are19
indicative of said select image phenomena."20
A Yes.21
Q Do Symbol scanners compare first information signals22
which, I believe, you said was the decoded data --23
A Yes.24
Q -- with any signals -- with any recordings in a memory25
ALLAIS - DIRECT0038
which are indicative of the image phenomena?1
A No. That does not occur in the Symbol scanners.2
Q Does that occur in the host?3
A It occurs in the host with the same explanation I gave4
for the '029. There is no data in the host that will take you5
back to the image phenomena.6
Q Okay. So when you say it occurs in the host, there's --7
there's no recording in the host of the image phenomena8
scanned?9
A Oh, no. No, no. Just -- just the product code and price10
and other things like that.11
Q Now you've also highlighted step F?12
A Yes.13
Q "Generating digital signals indicative of the location of14
said select image phenomena in said image field scanned."15
A Right.16
Q Is that met by the use of Symbol scanners?17
A No, and I might point out that Dr. Williams [sic] talks18
about signifying or pointing out the particular position of19
the select image phenomena and the bar code scanner or the20
host, either one, have no idea about the position of the bar21
code or any bars and spaces within the field scanned.22
Q Okay. Do symbols -- do the accused Symbol scanners23
generate any signals that indicate the location or particular24
position of the select image phenomena in the image field25
ALLAIS - DIRECT0039
scanned?1
A They do not.2
Q Now let's move to the next claim, it's the '190 patent,3
Claim 6?4
A Yes.5
Q Would you tell us which steps of that patent are not met6
by the use of the Symbol scanners?7
A That would be steps B and C.8
Q All right. Let's start with step B. "Generating coded9
electrical signals indicative of the content of at least a10
portion of the image field scanned." How does the Lemelson11
Partnership construe that term?12
A Well, they talk about creating detectable indicators to13
signify or point out what is contained in at least part of the14
image field scanned.15
Q What do you understand the Lemelson Partnership to read16
the phrase "coded electrical signals" to be?17
A Well, my understanding is that they interpret that to be18
the digital bar pattern.19
Q Is the digital bar pattern indicative of the content of20
at least a portion of the image field scanned?21
A No, it is -- simply is what it is, it's a process signal,22
and it doesn't -- you can't go back from there to what the23
object looked like.24
Q Can you go back to what the bar code looked like?25
ALLAIS - DIRECT0040
A No.1
Q Okay. In your opinion, is step B met?2
A No.3
Q Thank you. Let's turn to step C and start with the4
portion that you highlighted in yellow, "computer analyzing5
said coded electrical signals."6
A Okay. 7
Q What do you understand the coded electrical signals to be8
in the partnership's infringement analysis?9
A Well, we've just identified their interpretation of coded10
electrical signals to be the digital bar pattern.11
Q Could you explain how the portion you highlighted in12
yellow is not met by the use of the accused Symbol scanners?13
A Well, as I explained previously in one of the claims, the14
microprocessor or computer in the Symbol bar code scanner does15
not analyze the digital bar pattern; it's not capable of doing16
so.17
Q What does the microprocessor in a Symbol scanner do?18
A Well, it -- it subjects the counts to some rather19
interesting algorithms, the simpler ones of which Rick20
Schuessler demonstrated to us some days ago.21
Q But it does not process the DBP?22
A It does not directly process the DBP.23
Q In step C you also highlighted in pink "detecting when a24
select condition exists in the image field scanned."25
ALLAIS - DIRECT0041
A Yes.1
Q What is your understanding of how the Lemelson2
Partnership defines a select condition?3
A Well, they interpret that to be discovering or4
ascertaining when a chosen state, property, quality or5
attribute is present in the image field.6
Q Do the Symbol scanners detect when a chosen state,7
property, quality or attribute is present in the image field8
scanned?9
A No, they just simply try to -- try to decode a bar code10
if it's present.11
Q Could the -- could a bar code symbol be interpreted as a12
select condition?13
A Well, that would be pretty difficult because you would14
have to have a very particular bar code with, you know, known15
size, contrast, ink spread, all of those qualities out there16
somewhere to look for.17
Q Okay. In your opinion, is step C met by the use --18
A No.19
Q -- of the accused Symbol scanners?20
Let's turn to the '205 patent, Claim 1. Do you have21
that?22
A Yep.23
Q Okay. Which steps of that patent are not met by the use24
of the Symbol scanners?25
ALLAIS - DIRECT0042
A Steps F and J.1
Q Just catch up on the screen here. In step F, you've2
highlighted in blue "computer processing said varying signal."3
A Right.4
Q What do you understand the varying signal to be?5
A Well, if we look back at step E, the varying signal is6
one that varies in accordance with the intensity of the7
reflected radiation. So that must be the signal out of the8
photodiode which is an analog signal or its amplified9
equivalent.10
Q Do the Symbol scanners process the output of the11
photodiode with a computer?12
A No. A computer is incapable of processing that analog13
signal.14
Q Okay. What happens to the analog signal? Is it retained15
anywhere?16
A Well, the analog signal is a transient signal in time17
which creates the transient differentiated signal as it's18
created, which, in turn, creates the transient digital bar19
pattern, and all of the signals flow through the scanner and20
are immediately discarded.21
Q Okay. So when the differentiated signal is created,22
where is the analog signal that it's created from? What23
happens to it?24
A Well, if we -- if -- we looked at the face of a25
ALLAIS - DIRECT0043
[diciliscope a while ago and it looked like some nice lines1
standing in space. That's because the phosphor has2
persistence so humans can see it, but it's really just little3
dots moving across and wiggling, and when they're gone,4
they're gone. The signal is a -- is a transient time5
phenomena. The only thing that's preserved in the scanner is6
the sequence of counts in memory.7
Q In step F you've also highlighted in yellow "generating8
digital electrical signals defining characteristics of said9
different radiation reflecting marks."10
A Yes.11
Q Could you explain how the -- what the Lemelson12
Partnership reads that on?13
A Well, the digital electrical signals, since they're14
coming out of the computer, and I believe the partnership15
identifies that to be the decoded data.16
Q And is the decoded data defined characteristics of said17
different radiation reflecting marks?18
A No. There's no information. If the reflecting marks are19
the spaces and perhaps the bars of the bar code, there's no20
information in the decoded data to take you back to what those21
bars and spaces were.22
Q Is it your opinion that step F is not met?23
A It is my opinion step F is not met.24
Q Let's turn to step J, and you've highlighted "employing25
ALLAIS - DIRECT0044
said further electrical signals to intelligibly indicate1
information relating to the different radiation reflecting2
marks."3
A Yes.4
Q What do you understand the partnership to read the term5
"further electrical signals" to be in the Symbol scanners?6
A Well, they talk about electrical signals to7
understandably, clearly or meaningfully point out or signify8
or represent intelligence or data which has been organized to9
be meaningful regarding the different radiation reflecting10
marks. Almost the same thing, they're pointing us back to the11
bars and spaces or whatever image phenomena was reflecting12
marks.13
Q And the further electrical signals are the decoded data?14
A Well, they might be the decoded data, or they might be15
data out of the host computer. I think that could be16
interpreted a variety of ways. But in neither case, anything17
downstream of the decoded data knows nothing about the bars18
and spaces that were scanned.19
Q In your opinion, is step F -- step J met by the use of20
the accused Symbol scanners?21
A It is not.22
Q Let's turn to the next patent, the '753 patent, Claim23
106. Would you tell us which steps are not met by the use of24
the accused Symbol scanners?25
ALLAIS - DIRECT0045
A In this patent, steps F and G are not met.1
Q Let's start with step F. You've highlighted in blue2
"computer processing the electrical signals."3
A Yes.4
Q What do you understand the electrical signals to be in5
the Lemelson infringement analysis?6
A Well, again, looking at step E, those are the signals7
that vary with the reflected light from the surface of the8
object, so they have to be the signals out of the photodiode9
or equivalent.10
Q Would that be the analog signal?11
A The analog signal. Yes.12
Q Is the analog signal computer processed?13
A Computers are incapable of processing that analog signal.14
Q And you've highlighted in yellow "generating and storing15
in memory characteristic signals defining at least a portion16
of the production marking."17
A Yes.18
Q Is that -- is that portion met --19
A Well --20
Q -- by the use of the accused Symbol scanners?21
A Again, the only -- the only thing coming out of Symbol's22
computer is the decoded data, and the decoded data carries no23
information about the production marking, or if you want to24
interpret that production marking to be the bar code, it25
ALLAIS - DIRECT0046
doesn't tell you anything about the bar code either.1
Q In the portion that you highlighted in yellow, it refers2
to characteristic signals, it says "storing in memory3
characteristic signals."4
A Yes.5
Q What do you understand characteristic signals to be in6
the --7
A Well --8
Q -- infringement analysis?9
A -- in the interpretation I just gave --10
Q Right.11
A -- characteristic signals would be the decoded data,12
which, of course, is stored in memory.13
Q And that tells you nothing about the production marking,14
if that is the bar code?15
A It does not.16
Q Could the characteristic signals be construed to be the17
counts --18
A Well --19
Q -- in the Symbol scanners?20
A -- they might be, but that would be impossible because if21
we go back and read carefully, it says computer processing the22
electrical signals to determine if the scanning device has23
scanned the production marking, and, if so, generating and24
storing in memory. Well, every time the scanner scans25
ALLAIS - DIRECT0047
anything, clock counts are automatically generated, and only1
after all the clock counts are in place does the decode2
process begin and try to make sense out of it, so, it can't3
first determine something and then be stored in memory. So,4
it can't be the clock counts.5
Q Okay. How do you come up with it must first scan it and6
determine if it has a bar code before it can -- before it7
moves on?8
A Well, the text says scan the production marking, and, if9
so, generating and storing in memory.10
Q And so that "and, if so" gives some order to those steps?11
A It's the sequence. Yes.12
Q So, in your opinion, is step F met for that reason?13
A Step F is not met.14
Q Let's turn to step G where you've highlighted "comparing15
the characteristic signals to reference data stored in memory16
in order to identify the scan production marking." Could you17
explain whether step G is met?18
A Well, again, characteristic signals we identified must be19
the decoded data -- yeah, the decoded data tells you nothing20
about the production marking, bar code, whatever it was that21
it came from.22
Q So, in your opinion, is step G met?23
A It is not.24
Q Does any data from the host computer tell you anything25
ALLAIS - DIRECT0048
about the scanned production marking?1
A No. As we've said before, there's data like price and2
description which tells you nothing about the bar code.3
Q Let's turn to, I think, thankfully, the last claim, the4
'421 patent, Claim 3. Do you have that?5
A I do.6
Q Which steps of that claim are not met?7
A That would be steps F and J.8
Q Would you explain why those steps are not met?9
A Well, we could go through the same tedium, but I've been10
through this claim very carefully, and with the exception of11
step C, the claim language is identical to that of the '205, I12
believe it's Claim 14. Is it -- is that right?13
Q Um --14
A Nope. Claim 1 of the '205.15
Q Okay. 16
A And so, the 205 we've been through, step C, we're not17
discussing. Step C here has a few additional limitations, but18
we'll just let that go for now. Steps F and J are identical,19
and therefore, for the same reason, do not read on the Symbol20
products.21
Q And just to summarize, steps F and J -- I'm sorry, F --22
yeah, F and J of Claim 3 of the '421 patent do not read on the23
use of the Symbol products for the same reasons that steps F24
and J of Claim 1 of the '205 do not read on the use of the25
ALLAIS - DIRECT0049
Symbol products?1
A That's correct. 2
Q Okay. Thank you. 3
Now I'd like to turn to the subject of intervening4
rights. Dr. Allais, we've been through your non-infringement5
analysis under Dr. Horn's and the Lemelson Partnership's claim6
constructions. In the event that the Court finds that the7
Lemelson claims read on the LS-4000 Symbol scanners, which I8
think you have an example of up there?9
A Like this one?10
Q Yeah. Do you have an opinion whether those same claims11
would read on the early Symbol scanners that Mr. Barkan12
testified about?13
A Yes, I do.14
Q What is your opinion?15
A Well, my opinion is that if the claims in the Lemelson16
patents read on the LS-4000, then they would also read on the17
earlier Symbol scanners, such as the LS-100, the LS-7000, 800018
and 8500.19
Q Have you prepared a chart summarizing which of the early20
scanners --21
A Yes, I have.22
Q -- the plaintiffs agreed on? Okay. Could you turn to23
Exhibit 3530? Do you have that?24
A Yes, I do.25
ALLAIS - DIRECT0050
Q Would you please explain Exhibit 3530?1
A Yes. Across the top, across the top of this exhibit, I2
have listed a number of the early Symbol scanners beginning3
with the LS-100 -- 1000, the LS-7000, the LS-7002, the LS-4
8000, and the LS-8500, and the corresponding year when those5
products were introduced to market.6
Q And could you explain the column running down the left?7
A Yes. Down on the left-hand side I have listed the --8
both the independent and dependent claims asserted against the9
contemporary Symbol products.10
Q Okay. I noticed that the '918 patent is not listed11
there.12
A It is not listed here.13
Q And why is that?14
A Well, it's my understanding that the -- that the claim in15
the '918 patent was submitted to the Patent Office less than16
two years prior to the introduction of the Symbol product. 17
No, maybe -- it's the other way around. The Symbol product18
was not introduced two years prior to the claim being taken to19
the Patent Office.20
Q Okay. Could you explain the significance of a check mark21
on Exhibit 3530?22
A Yes. The check mark indicates that in the event that23
that claim reads on the contemporary Symbol products, it would24
also read on the product intersected by the check mark.25
ALLAIS - DIRECT0051
Q What do you base your opinion on?1
A Well, I base my opinion on the fact that the older Symbol2
scanners as testified by Mr. Barkan and Mr. Swartz and Mr.3
Schuessler operated in the same manner as the LS-4000.4
Q Are you personally familiar with the operation of any of5
the Symbol scanners listed on Exhibit 3530?6
A Yes, I am, and particularly the LS-7000, 7002 and 8000,7
which were products that we purchased and resold and used at8
Intermec.9
Q Okay. And you purchased and resold those contemporaneous10
with the dates that are listed?11
A Well, either -- either those dates or within a year of12
those dates.13
Q But aren't there differences between the Symbol LS-400014
and the Symbol scanners that are listed on 3530?15
A Well, yes, there's engineering improvements over the year16
-- over the years. For example, the LS-100 and the LS-700017
used a helium neon gas laser. The LS-4000 and the new18
products use a solid state laser diode, but in both cases a19
laser beam is generated to be used in scanning, so they're20
substantially the same.21
Q Does that difference between the types of laser sources22
make a difference with respect to the claims?23
A No, it does not, and, in fact, the claims do not even24
call out for a laser.25
ALLAIS - DIRECT0052
Q How about differences in the oscillating mirror1
technology?2
A Well, again, the early products, the LS-7000 and so3
forth, used a stepping motor to oscillate the mirror, whereas4
there is a resonant mechanical circuit -- or mechanical5
assembly, rather, used in the contemporary products, but,6
nevertheless, the mirror oscillates and causes the beam to7
scan so that for claim interpretation, they're really the same8
thing.9
Q Do the claims even mention an oscillating mirror?10
A Well, they do not even mention the oscillating mirror. 11
That's true.12
Q Okay. I notice on your chart, Exhibit 3530, there are13
some boxes that are not checked?14
A That's true.15
Q Why is that?16
A Well, that would be because the date of introduction of17
the Symbol product -- and I'll get it right this time -- was18
not two years or more before that claim was submitted to the19
Patent Office.20
Q How did you determine when the claims were submitted to21
the Patent Office?22
A Well, there was a set of dates provided to me.23
Q If you'd turn to the next exhibit in the book, 3531, are24
those the dates that were provided to you?25
ALLAIS - DIRECT0053
A Yes, they are.1
MR. HOSIER: Since I might forget it, Your Honor, I2
don't mind the chart, 3531, but given the witness's testimony3
that he had nothing to do with composing it and the fact that4
we consider this to be inaccurate, to caption it the date Mr.5
Lemelson first presented the asserted claims to the Patent6
Office is argument and misleading.7
THE COURT: Mr. McCabe?8
MR. McCABE: I believe most of these dates, if not9
all of them, comport with what's in defendant's briefs when10
the -- when the actual claim was first presented.11
The only point that we're trying to make here is12
these are the dates that Dr. Allais was asked to consider, and13
we did not ask him to snake through the voluminous file14
histories to pick them out.15
THE COURT: No, I understand. He was asked to16
accept these dates as --17
MR. McCABE: Right. Right.18
THE COURT: -- being accurate. 19
In what respect, Mr. Hosier, are they inaccurate?20
MR. HOSIER: Just 'cause they're not correct. 21
THE COURT: I mean, each of them is --22
MR. HOSIER: They kind of made 'em up to suit their23
purposes, and also, claims to the extent that there's any24
relation to it, claims in significantly the same form trace25
ALLAIS - DIRECT0054
back even a decade or more before and --1
THE COURT: Okay. Well, let's -- let's do this.2
MR. HOSIER: -- it's a sequence of amendments.3
THE COURT: For purposes of this witness's4
testimony, I will receive 3531 as it informs us as to the5
dates which in part provide the predicate for his opinions. I6
won't receive 'em for the truth of the matter as to the actual7
dates that Lemelson first presented the asserted claims to the8
Patent Office, and will rely on such other evidence as the9
parties have to that effect, all right?10
MR. McCABE: Thank you, Your Honor.11
THE COURT: I mean, I'm assuming, and I'm hesitant12
to assume too much, but is there not somewhere on the document13
that is submitted to the Patent Office which contains the14
claim asserted a date stamp or some kind of marking?15
MR. McCABE: Yes, Your Honor, there is. When --16
when any paper is submitted to the Patent Office it's stamped17
with a date, and the date can vary -- 18
THE COURT: Thank goodness. That's --19
MR. McCABE: -- can vary within a few days,20
depending on how it's sent to the Patent Office, but setting21
that aside I don't think Mr. Hosier is talking about a day or22
two here.23
MR. HOSIER: No.24
MR. McCABE: Right.25
ALLAIS - DIRECT0055
MR. McCABE: Our position is these are the dates1
when the claims, as issued, or as close as possible to as2
issued, were actually filed. I believe defendant's position3
is probably more along the lines of, well, there was something4
earlier that we can kind of hook back that's similar, maybe5
not significantly different in their opinion, that would6
change the date.7
THE COURT: Well, if they -- if defendant could8
point to something presented to the Patent Office that9
contained the asserted claim that was earlier than that date,10
obviously.11
MR. McCABE: Right.12
MR. HOSIER: There's no question that it's an13
objective issue to be determined by looking physically at the14
file history --15
THE COURT: All right. 16
MR. HOSIER: -- and what was presented on certain17
dates --18
THE COURT: Okay. 19
MR. HOSIER: -- and how it changed with time is20
presented, but as the Court has heard, it is very typical for21
claims to be amended, and we have situations where, you know,22
you might have a spelling error corrected in a claim at some23
late date, and that kind of literalism is what's gone into24
some of the charts here. 25
ALLAIS - DIRECT0056
In addition --1
THE COURT: Okay. 2
MR. HOSIER: -- there are situations where the claim3
is adjusted, but has a history in its roots back a decade or4
more earlier. So all of this is something we can argue about5
later.6
THE COURT: All right. All right. 7
MR. HOSIER: But I don't want it to be represented8
as being something that is --9
THE COURT: All right. 10
MR. HOSIER: -- it's not.11
THE COURT: You obviously don't accept those as12
accurate dates, but the witness was called upon to rely on13
them in forming his opinions, so --14
MR. McCABE: Right. I just wanted to make clear to15
the Court that Dr. Allais is not here to testify about what16
the claims looked like --17
THE COURT: Sure.18
MR. McCABE: -- earlier on.19
THE COURT: Yeah. Okay. 20
BY MR. McCABE: 21
Q Okay. All right. Now I'd like to shift gears a little22
bit and turn to patents and publications that you've23
considered as a basis for intervening rights?24
A Yes.25
ALLAIS - DIRECT0057
Q Okay. Have you considered certain patents and1
publications?2
A Yes, I have.3
Q Okay. Have you prepared a chart summarizing the patents4
and publications that you've considered?5
A Yes, I've done that.6
Q Would you turn to Exhibit 3532, please?7
A Yes.8
Q You have that? Could you explain Exhibit 3532 for us?9
A Yes. In this chart, I have listed across the top four10
patents and publications beginning with an article about11
London Transport by Mr. Pick [phonetic] in 1958, the second12
column is Hipolanean [phonetic] U.S. Patent 3,225,175, the13
next is the Stites U.S. Patent 3,225,177, and in the right-14
most column, it is the Shawn [phonetic] Patent 3,622,758.15
Q And down the side what have you listed?16
A And down the side I have listed the various claims17
asserted against the Symbol products.18
Q Okay. Do you have an opinion as to whether the asserted19
claims read on the disclosures of the four pieces of art that20
are listed on this exhibit?21
A Well, to the extent that I've placed a red check mark at22
the intersection of a claim with the patent or publication,23
then my opinion is that should those claims read on the24
contemporary Symbol products, they would also read on one of25
ALLAIS - DIRECT0058
these patents or publications as indicated.1
Q I -- let me re-ask the question so I'm not faulted, you2
know, being a patent attorney and screwing it up.3
Do the -- do the articles and publications -- or the4
patents and the publication listed on Exhibit 3532 disclose5
the elements of the asserted claims?6
A Yes, as indicated by the check marks.7
Q Okay. 8
A That's what I meant.9
Q Let's start with the first article that you have listed10
there, that's the London Transport article?11
A Okay. 12
Q Could you briefly describe what that article discloses?13
A Yes. That was a situation in London in the late 1950s14
where the transport company responsible for the busses15
recognized that they had a problem keeping their busses on16
schedule --17
MR. HOSIER: Objection, Your Honor.18
THE WITNESS: -- and they would get busses bunched19
up within the block --20
THE COURT: Excuse me one second.21
MR. HOSIER: I'm sorry to interrupt the witness, but22
his testimony -- this is nothing within the personal knowledge23
of the witness, and I happen to know it because it's an24
article that the witness first saw a couple of weeks before he25
ALLAIS - DIRECT0059
was deposed in this case, and now we're hearing it as though1
it's personal knowledge and what the bus company was doing and2
how they were doing it. He didn't even know it existed as the3
article, and it's only the four corners of the article that4
the witness is relying on. So I think if there's any5
testimony, that ought to be made clear as a foundation, and6
he's then interpreting what the article says, and there's a7
great deal of hearsay in the article as well about what the8
bus company was doing, and he has no way of knowing that to be9
true.10
THE COURT: All right. 11
MR. McCABE: Your Honor, I think my question took12
care of that. I asked him to just summarize the article.13
THE COURT: Yeah, that's fine, let's do that. It's14
not required that the witness be testifying from percipient15
knowledge to give an expert opinion about the London Transport16
circumstance, but I'll let him summarize the article as he17
understands it.18
Is that correct, you read the article that Mr.19
Hosier is referring to?20
THE WITNESS: Yeah, yes, and Mr. Hosier is correct. 21
My knowledge of this comes from the article. I was merely22
trying to put a little life in it to --23
THE COURT: All right. 24
THE WITNESS: -- explain why they were doing this.25
ALLAIS - DIRECT0060
THE COURT: All right. 1
THE WITNESS: So, the essence of it was they worked2
out a scheme for putting coated markings on the busses and3
mounting scanners at the curbside to track the movement of the4
busses.5
BY MR. McCABE: 6
Q Could you turn to Exhibit 3215. That's in the yellow7
volume, it's in your yellow volume.8
MR. McCABE: I divided the witness's book up into9
three pieces, make it easier.10
THE COURT: You're looking at 35 what?11
MR. McCABE: 3215.12
THE COURT: 3215 --13
MR. McCABE: '215.14
THE COURT: I'm sorry. Okay. 15
BY MR. McCABE: **16
Q Do you have that?17
A Yes, I do.18
Q Okay. Could -- is that the Pick article you referred to?19
A Yes, that's the article that we've been discussing.20
Q Okay. When was Pick first published?21
A Well, it was first published in October of 1958.22
Q And briefly, what was the problem that Pick was trying to23
solve?24
A Well, I think I described the problem of busses bunching25
ALLAIS - DIRECT0061
up from traffic or malingering bus drivers that would be kind1
of lazy and speed up so they get behind the bus in front and2
they don't have to keep opening and closing the doors.3
Q How did Pick solve it?4
A Well, Pick designed a scheme of putting reflective5
markings on the side of the bus, and I think we have some6
illustration here that will help the Court understand how he7
did that.8
Q I turned to a graphic which is Exhibit 3533, which is9
figure 1 of Pick just being reproduced and highlighted. It's10
on the screen, Dr. Allais?11
A Oh, well, that makes it easy.12
Q Yeah. Could you just explain Exhibit 3533 for us?13
A I will do that, but I can't --14
THE COURT: Looks a bit like the London underground15
there is --16
THE WITNESS: I can't quite read the screen. 3533?17
BY MR. McCABE: 18
Q Yes.19
A Okay. At the left, you show a drawing of this timing20
plate which they put on the bus. They used highway21
reflectors, and at the top you see two rows of reflectors22
spaced along, I guess they were two inches apart, and one inch23
apart high. And then down below, you see occasional pairs of24
reflectors so that the top series is really a clock track, so25
ALLAIS - DIRECT0062
that if you see reflectors at the top and there's none at the1
bottom, that's a zero bit, and if you see reflectors at the2
top and the bottom, that's a one bit. That's the way the code3
was constructed.4
There's a light source in here indicated in yellow5
which is -- I think it was an automobile head lamp or6
something like that, incandescent at any rate, coming out7
through mirrors and lens systems, and putting a beam out into8
the roadway so that the bus about twelve feet away from the9
scanner, those little reflectors would reflect the light back10
to a photocell. 11
They also had a motor in a rotating disk to chop up12
the beam, so this flashing light would be able to be13
distinguished from stray sunlight or something like that. But14
once they get this light back, they will compare clock track15
against data track. They will then condition that data and16
store it in this sending unit in relays and wait for the right17
moment to transmit it over a telephone line into the bus18
central where they will record that information for future19
analysis. 20
And also they'll display on a big light board for21
every one of the thirty bus routes where each bus is between22
the two point scan. So, it was a system that was tested for23
quite some months in London.24
BY MR. McCABE: 25
ALLAIS - DIRECT0063
Q It's your understanding that was actually used in London?1
MR. HOSIER: Objection to that representation. 2
Again, it goes beyond the witness's personal knowledge.3
THE COURT: Well, it does. Does the article that4
you referred to, 3215, indicate that it was tested for some5
time in London?6
THE WITNESS: That's what I got out of the article.7
MR. HOSIER: Whether that's true or not --8
THE COURT: Well, I --9
MR. HOSIER: -- or whether it worked or not or10
whatever, who knows?11
MR. McCABE: You can never tell when they're only12
written down.13
THE COURT: Well, I don't think anybody is offering14
testimony that this was successful particularly, are you, or 15
--16
THE WITNESS: Well, it was a -- it was a -- it was a17
-- according to the article, and it would be very rare to have18
a technical article fabricated out of whole cloth and19
delivered in multiple cities in London over a period of time20
and have no facts behind it. It was a system that was tested21
--22
THE COURT: All right. 23
THE WITNESS: -- and the London Transport did not24
choose to invest in a permanent system, so it was a working25
ALLAIS - DIRECT0064
model.1
THE COURT: All right. 2
MR. HOSIER: That alone suggests that it, perhaps,3
didn't work, that they never --4
THE COURT: Well, you can --5
MR. HOSIER: -- did it.6
THE COURT: -- you can take it up on cross-7
examination. I don't think it's particularly important.8
MR. HOSIER: I agree.9
BY MR. McCABE: 10
Q Could you turn to the second page of Exhibit 3215, which11
is the first page of the article? Do you have that?12
A Yes.13
Q Under the listing of the authors, the second sentence14
says, it was published in October, 1958, and was read before15
the institution, 6 November in Southwest Scotland Sub-center,16
11 November at the Merze [phonetic] and North Wales Center, 2417
November, 1958, the Southeast Scotland Sub-center, 1718
February, and the East Anglican Sub-center, 2 March, 1959. 19
What is the significance, if any, of having a paper read20
multiple times?21
A Well, again, I wasn't there --22
MR. HOSIER: Objection. No foundation.23
THE WITNESS: -- but I would deem that it was24
considered interesting and worthwhile at the time in order to25
ALLAIS - DIRECT0065
be presented.1
THE COURT: All right. Overruled. Go ahead.2
BY MR. McCABE: 3
Q At the -- toward the end of the article, I think there's4
some discussion with the authors?5
A Yes, there is.6
Q And I think there was some discussion of making some7
changes to the system and things like that?8
A Yes. They made some suggestions for technical9
improvement should the bus company decide to move forward and10
implement it on a large scale.11
Q Is that unusual to have suggestions for technical12
improvement after testing a system?13
MR. HOSIER: Objection.14
THE WITNESS: Well, that's --15
MR. HOSIER: Invites speculation.16
THE WITNESS: -- almost inevitable.17
THE COURT: Well, is the procedure that is reflected18
for reading the articles that's contained in the Exhibit 3215,19
is that consistent with the reading of articles in other areas20
that you're familiar with of your own --21
THE WITNESS: Well, I think it's a -- it's a nicely22
done technical article and very readable.23
THE COURT: Well, I understand that. No, I meant24
the --25
ALLAIS - DIRECT0066
THE WITNESS: Oh, reading before a group.1
THE COURT: -- the reading of the articles before2
various groups?3
THE WITNESS: That's very usual. The engineer4
writes up a paper to be presented --5
THE COURT: Peer reviewed.6
THE WITNESS: -- and he will stand up --7
THE COURT: To be tested.8
THE WITNESS: -- and talk about it.9
THE COURT: Right. Right. Okay. 10
THE WITNESS: Yes.11
THE COURT: Okay. 12
BY MR. McCABE: 13
Q Okay. Let's turn to the next piece of art that you14
considered, which is the Hipolanean patent, Exhibit 1673?15
A Excuse me, exhibit number?16
Q 1673. It's in the -- should be in the blue book.17
A Yeah. Yeah. 18
Q Do you have that?19
A Just getting it.20
Q Would you tell us when the Hipolanean patent was filed21
and when it issued?22
A Yes. The filing date was July, 1960, and it was issued23
December 21, 1965.24
Q Who was the Hipolanean patent assigned to?25
ALLAIS - DIRECT0067
A It was assigned to the Scott Paper Company.1
Q What problem was Hipolanean trying to solve?2
A He was trying to solve what we -- what we --3
MR. HOSIER: Objection. Your Honor, I don't mind4
him asking what does it disclose, but again, it's the form of5
these questions that puts it into a --6
THE COURT: Well, technically you're probably right. 7
It seems to me to be asking the same thing. 8
You're asking him based upon his reading of --9
MR. McCABE: Right.10
THE COURT: -- the patent --11
MR. McCABE: Right.12
THE COURT: -- application --13
MR. McCABE: Exactly.14
THE COURT: -- what does it disclose? 15
MR. McCABE: Right.16
THE COURT: All right. Go ahead.17
THE WITNESS: Yes. Well, in reading the patent,18
it's my understanding that Mr. Hipolanean was trying to solve19
what we call a carton sortation problem where you have many20
cartons of paper goods in a distribution center, and instead21
of, you know, manually having to pick each one up and move it22
where it's supposed to go, you put these cartons on a conveyor23
and have an automated means to divert the carton to the right24
loading dock for a truck or a rail car or perhaps a storage25
ALLAIS - DIRECT0068
rack.1
THE COURT: Similar to what you'd see sorting2
parcels in the post office --3
THE WITNESS: Oh, exactly.4
THE COURT: -- or something like that?5
THE WITNESS: Yes.6
BY MR. McCABE: 7
Q What is your understanding of how Mr. Hipolanean solved8
that problem?9
A Well, he solved that problem by putting a two tier bar10
code on the side of the cartons and devising a scanning and11
sortation system that -- that by scanning that bar code could12
automatically divert the cartons.13
Q Could you turn to Exhibit 3534, and I put it on the14
screen. Is that a graphic that you prepared?15
A Yeah. I think I can see that.16
Q Could you tell us what that shows?17
A Okay. Figure 1 below highlighted in yellow, we have the18
carton itself. You can sort of make out the bar code on the19
side of the carton which is seen more clearly in figure 220
where there, again, is a clock track kind of like we saw in21
the London Transport, that's the lower tier of rectangles, and22
then above that, we see either dark rectangles or the absence23
of a rectangle for the code on the carton.24
Returning now to figure 1, there is the component number25
ALLAIS - DIRECT0069
20 is the -- actually the scanning unit where the -- where the1
code is scanned, and then unit number 18 is a bank of switches2
that can be put in to say we want cartons number 14, 25 and 43
diverted into this particular place.4
You also see a -- 19 represents a kind of a5
mechanical device to shunt the carton off the conveyor.6
Q Could you turn to Exhibit 2902A? It's in the yellow7
book? Do you have that? 2902A?8
A Yeah, working on it.9
Q It's about halfway through the yellow book?10
A Yes, I have that. 11
Q Okay. 12
A Wait, wait, wait. Twenty --13
Q 2902?14
A No.15
Q Let me see.16
A Okay. Finally got it.17
Q Got it?18
A Yeah.19
Q Could you explain to us what 2902A is?20
A Yes, that's a claim chart that I've done for the21
Hipolanean patent, and that takes the various patents in suit22
together with the partnership's claim construction and aligns23
that with processes and elements within the Hipolanean patent.24
MR. McCABE: I offer 2902A.25
ALLAIS - DIRECT0070
THE COURT: Any objection to 2902A?1
MR. HOSIER: No.2
THE COURT: All right. That will be received.3
(Plaintiff's Exhibit No. 2902A admitted)4
BY MR. McCABE: 5
Q And I skipped, when we were talking about Pick, 3273A. 6
Could you turn to that?7
A Yes.8
Q Could you explain what 3273A is?9
A Yes. That's a claim chart that shows the 918 patent10
Claim 14 claim language in the left column, the Lemelson claim11
construction in the center column, and the corresponding12
activity described by the Pick article in the right hand13
column.14
MR. McCABE: I offer 3273A.15
THE COURT: Any objection to 3273A?16
MR. HOSIER: No.17
THE COURT: All right. That will be received as18
well.19
BY MR. McCABE: 20
Q Okay. And the next column in your summary chart, which21
was Exhibit 3532, listed the Stites patent, and I'd like to22
now turn to the Stites patent, which is Exhibit -- I have 38423
here, but it doesn't sound right. Give me one second. It is.24
THE COURT: 384?25
ALLAIS - DIRECT0071
MR. McCABE: I believe it is. Hold on.1
THE COURT: That could be right.2
MR. McCABE: Yes --3
THE COURT: Yeah.4
MR. McCABE: -- it is right. 384.5
THE COURT: 384.6
BY MR. McCABE: 7
Q Do you have that?8
A Got it.9
Q All right. Could you tell us when the Stites patent was10
filed and when it issued?11
A Yes. The Stites patent was filed in September, 1961, and12
issued December 21st, 1965.13
Q Who was the Stites patent assigned to?14
A That was assigned to Sylvania.15
Q Generally, what was your understanding of the problem16
that Stites was trying to solve and how did they solve it?17
A Well, Stites was solving the problem of keeping track of18
rail cars and other moving items such as trucks.19
Q And did --20
A And they solved that by putting a label on the side of21
the rail car which was scannable and building and constructing22
a scanner to scan, record and transmit that data.23
Q Have you prepared a short animation to show how Stites24
operated?25
ALLAIS - DIRECT0072
A Yes, I have.1
THE COURT: Let me just -- haven't we already2
received the -- maybe we have?3
THE CLERK: Yes, [inaudible].4
THE COURT: Yeah, I thought we had. Yeah. I think5
we had already previously received the Stites patent, haven't6
we?7
MR. McCABE: I'm sure we've received the --8
THE COURT: Yeah.9
MR. McCABE: -- Stites patent. 10
THE COURT: Okay. 11
MR. McCABE: Yeah.12
THE COURT: Okay. 13
BY MR. McCABE: 14
Q Could you tell us what's shown here?15
A Well, we see the side of a rail car and some block16
diagram overview of the processing within the Stites scanner.17
MR. HOSIER: What Exhibit is this?18
THE COURT: It's part of 384. It's actually --19
well, I take that back, this --20
MR. McCABE: It's the animation.21
THE COURT: -- this animation is not -- or this --22
MR. McCABE: No, no. And we gave it to you guys.23
(Off-record colloquy)24
MR. HOSIER: Exhibit number?25
ALLAIS - DIRECT0073
MR. McCABE: 3254D.1
THE COURT: Say it again?2
MR. McCABE: 3254D.3
BY MR. McCABE: 4
Q I'm sorry to interrupt. Could you --5
A No problem. I think I'm done with the first panel here.6
Q And could you tell us what's shown in this frame?7
A Well, we see a depiction of the rail car moving into8
place, and, of course, it doesn't really stop, it really9
whizzes by, but for our benefit, it's stopped here.10
THE COURT: We've already had a fair degree of11
testimony about this particular utilization of the vertical --12
MR. McCABE: Yes, exactly.13
THE COURT: -- bar codes, so, I don't know that you14
need to belabor it with this witness unless -- but we've --15
I've already heard what -- oh, goodness, I don't remember his16
name now --17
MR. McCABE: Mr. Collins?18
THE COURT: Yes, Mr. Collins had to say about it.19
MR. McCABE: That's fine. I mean, we'll just ask20
him to generally explain --21
THE COURT: All right. 22
MR. McCABE: -- his understanding of Stites.23
THE WITNESS: Yeah. We'll just go through this very24
quickly. Well, oh --25
ALLAIS - DIRECT0074
BY MR. McCABE: 1
Q No, we're just going to have you orally --2
A Oh, oh. Just go ahead. Well --3
Q -- explain it rather than walk through the animation.4
A Well, as you saw from Dave Collins's testimony, the5
scanner scans vertically and the collected data in the -- in6
the blue and orange channels is processed through and7
eventually either punches a tape, goes into a printer or some8
other --9
THE COURT: Does whatever --10
THE WITNESS: -- disposition of the data.11
THE COURT: -- you want to do with it to process12
whatever data you receive.13
THE WITNESS: That's right.14
BY MR. McCABE: 15
Q Okay. Could you turn to Exhibit 2900A in your book, it's16
in the yellow volume, the yellow one?17
A Okay. 18
Q Okay. Could you explain what's shown in Exhibit 2900A?19
A Well, 2900A is a set of claim charts aligning certain of20
the patents in suit with ** with the corresponding activities21
in the Stites patent. So it's my claim -- claim chart for the22
Stites patent.23
MR. McCABE: I offer Exhibit 2900A.24
THE COURT: Any objection to 2900A?25
ALLAIS - DIRECT0075
MR. HOSIER: No, Your Honor.1
THE COURT: That'll be received.2
(Plaintiff's Exhibit No. 2900A admitted)3
BY MR. McCABE:4
Q We'll turn to the next patent on your chart, which is the5
[Shawn patent, which is Exhibit 1676.6
A Yes, I have that.7
Q Would you tell us when the Shawn patent was filed and8
when it issued.9
A Yes. The Shawn patent was filed November 1970. And10
trying to -- trying to find the issue date here. Oh. 11
November 23rd, 1971.12
Q Okay. Who is the Shawn patent assigned to?13
A That was assigned to RCA Corporation.14
Q Okay. What is your understanding of the problem that15
Shawn was addressing?16
A Well, Shawn was addressing the problem of automated17
checkout in the supermarket in the time period before the UPC18
symbol was announced, and this was in fact RCA's attempt to19
solve that problem.20
Q Okay.21
MR. HOSIER: Objection. Again, goes way beyond22
what's in the patent.23
MR. McCABE: I think the patent addresses checkout,24
assigned to RCA, and then it's a bar -- it's a bar coding --25
ALLAIS - DIRECT0076
early bar coding patent that was actually used.1
MR. HOSIER: If they want to prove anything about2
what was done, they can bring in the witnesses. They've had3
witnesses that could have talked about the subject. They4
deposed them or got a hold of them, but they certainly didn't5
introduce it. Now they're trying to connect a patent with a6
commercial -- not commercial activity, but some test activity,7
and there is no linkage, and there is no personal knowledge.8
MR. McCABE: Well, I think --9
THE COURT: Well, I took it more a patent to solve a10
particular problem, is the way I understood it.11
MR. HOSIER: That I don't have a problem with, a12
statement that -- what the patent is about. It's trying to13
link it to something that was done in the real world that I14
have the problem with.15
THE COURT: All right.16
MR. McCABE: In fact, it was done in the real world,17
Your Honor, and I believe this witness can testify to that.18
MR. HOSIER: Well, if Mr. --19
THE COURT: It may have been.20
MR. HOSIER: -- McCabe wants to get on the stand and21
swear to that, that's fine. But I don't think it's22
appropriate for him to stand here and say it.23
THE COURT: Well, let me ask -- let me ask the24
witness.25
ALLAIS - DIRECT0077
Dr. Allais, do you know what development or1
utilization was made of this particular -- of any patented2
device here?3
THE WITNESS: Well, it's my understanding from being4
in the industry that this patent was basic to the device that5
was installed and operated for some many months in a Kroger's6
store in Ohio as -- as a proof of concept of scanning in the7
supermarket.8
THE COURT: We've had -- and this is the same matter9
that was testified to by Mr. Reinhold, was it, or --10
MR. McCABE: You might be thinking of Mr. Lauer.11
THE COURT: Mr. Lauer.12
MR. HOSIER: Lauer. Mr. Lauer testified generally13
to the subject, but he didn't link anything. And this14
witness, in a deposition that I took, said, I have no personal15
knowledge of any linkage between the patent and the activity.16
THE COURT: Okay. Just speed it along. The patent17
says what it says.18
MR. McCABE: Absolutely.19
MR. HOSIER: Right. That I agree.20
THE COURT: Let's just confine it to that and not21
imbue the witness with some knowledge that maybe he's heard of22
-- I'm not suggesting he hasn't -- but that he has no --23
MR. MCCABE: Sure. I believe Mr. Lauer testified24
about having seen the system operate.25
ALLAIS - DIRECT0078
THE COURT: He did testify regarding the Kroger test1
store and so forth. I just couldn't remember which witness it2
was that had said that. But --3
BY MR. McCABE:4
Q Okay. Have you prepared a graphic to explain part of the5
Shawn patent?6
A Yes. If you can help me find it.7
Q It's Exhibit 3535. And that should be --8
THE COURT: It's on the screen.9
MR. McCABE: Yeah.10
BY MR. McCABE:11
Q Could you explain Exhibit 3535.12
A Yes. We've -- this is taken from Figure 1 of the patent,13
and we've highlighted certain pieces of this in yellow just to14
follow along. On the left, Item 26 is a laser, helium-neon15
laser tube, which is imaged through a lens to a rotating16
polygon mirror which causes the laser line to scan across the17
bottom of a -- of a product on the -- being checked out. 18
Actually, the circular bar code is -- you can't see it from19
here, but it's on the bottom of the can of peas here and comes20
down to a photomultiplier tube, a signal is amplified in21
number 44.22
There's an edge-finding circuit similar to what we see in23
Symbol products here, and in 58 and the surrounding circuitry24
this is processed down into a counter 98 or a counter 104,25
ALLAIS - DIRECT0079
depending on where the scan is. These counters are compared1
to be sure that the outside in and the inside out signals are2
mirror images of each other so they don't misscan an item. 3
That data is then transferred forward into a further decode4
processing and fenced to a computer which looks up price and5
description.6
Q And let me -- let me turn to the next page in the7
graphic, which shows Figures 2 and 3 of Shawn. Could you8
just --9
A Figure 2 of the -- my screen is real blurry, but the10
exhibit is quite clear, the printed exhibit. Figure 211
actually shows the RCA bull's-eye symbol that was printed and12
put on the bottom of the grocery items. And then in Figure 313
we see in A is like a slice of the dark and light areas in14
that symbol, and C is a very idealized analog signal. But15
here they didn't have much depth-of-field problem, so maybe it16
did look that good. And D is little peaks identifying the17
edges between the bars and spaces, and then E is what we've18
been calling a digitized bar pattern.19
Q Thank you. Could you turn to Exhibit 2903A. Do you have20
that exhibit?21
A Yes.22
Q Could you explain what that is.23
A Yes. This is my claim chart for various of the claims in24
suit and the Lemelson Partnership's construction of that claim25
ALLAIS - DIRECT0080
together with the activity going on in the Shawn patent that1
corresponds to each claim element.2
MR. McCABE: I offer Exhibit 2903 [sic].3
THE COURT: Any objection to 2903A?4
MR. HOSIER: No.5
THE COURT: All right. That will be received.6
(Plaintiff's Exhibit 2903A admitted)7
BY MR. McCABE:8
Q Just returning for a brief second to Exhibit 3532, which9
was your summary chart. And I put that on the screen, okay. 10
Just so it's clear, for each of the boxes that you've checked11
you've presented a claim analysis that shows in your opinion12
that each of the elements of a checked claim is disclosed in13
that piece of art; is that correct?14
A Yes. Each of the red check-marked claims would have been15
shown by the corresponding piece of art.16
Q Now I'd like to turn to Kar Trak briefly. Dr. Allais,17
have you considered whether Kar Trak -- whether the asserted18
claims read on the Kar Trak system?19
A Yes.20
Q Have you -- which installations of Kar Trak have you21
considered?22
A Well, I considered three installations, the Boston &23
Maine installation, the New York Transit Authority24
installation, and the Duluth, Mesabi & Iron Range Railroad25
ALLAIS - DIRECT0081
installations.1
Q And could you turn to Exhibit 3536, please.2
A Okay.3
Q Is that your summary chart? And could you explain what4
it is.5
A Yes.6
MR. HOSIER: Your Honor, before the witness answers,7
I'd like to interpose an objection here.8
THE COURT: To his chart?9
MR. HOSIER: To his chart, because it will get us10
off into an excursion to which I have an objection to the11
whole line of testimony. The Boston & Maine Railroad subject12
matter, of which they're going to produce charts, and the13
Duluth, Mesabi, Iron Range Railroad, which is that video we14
didn't watch, one, on the Duluth, Mesabi Railroad video the15
witness testified that he only looked at it as a -- I think a16
historical note or something of that sort. There were no17
charts produced, it's not part of his expert report, neither18
one of these. The New York City Transit Authority is, and I19
don't object to that one. But the other two are not found in20
his expert report, and the testimony was directly to the21
effect, "I did not explicitly rely on the videotape except as22
an anecdotal piece of history."23
MR. McCABE: Your Honor, they're both found in the24
expert report.25
ALLAIS - DIRECT0082
MR. HOSIER: Not in any charts that were attached to1
the expert report that they have relied on for intervening2
rights.3
THE COURT: Mr. McCabe.4
MR. McCABE: If you'd turn to Exhibit 1 of Dr.5
Allais's prosecution laches expert report dated August 19th,6
2002 --7
THE COURT: I don't believe I have that in front of8
me. Yeah. Thanks.9
MR. HOSIER: I'm sorry, Phil. Where is it? Which10
one?11
MR. McCABE: Exhibit 2.12
THE COURT: Exhibit 2, you said?13
MR. McCABE: Yes, sir.14
THE COURT: All right.15
MR. McCABE: I'm sorry. Exhibit 1. Exhibit 1. 16
Exhibit 1.17
THE COURT: Exhibit 1 of Plaintiff's 2895. And that18
bears a separate marking, 2899.19
MR. McCABE: Correct.20
THE COURT: Uh-huh. Okay.21
MR. McCABE: And there you'll see in the third22
column reference to New York City Transit Authority and the23
Kar Trak video.24
MR. HOSIER: I don't have that -- I don't have that25
ALLAIS - DIRECT0083
problem with regard to --1
MR. McCABE: Can I finish?2
MR. HOSIER: I'm sorry. Go ahead.3
MR. McCABE: Thank you.4
And if you'd turn to page 5 of the expert report,5
there's reference to the Boston & Maine Railroad.6
THE COURT: Bear with me.7
MR. McCABE: Under --8
THE COURT: Page 5 of the --9
MR. McCABE: Of the expert report itself.10
THE COURT: Oh. Of the report itself.11
MR. McCABE: Of the report. I'm sorry, Your Honor. 12
Of the report, under "1961."13
THE COURT: Got it. Okay.14
MR. McCABE: There's reference to the Boston & Maine15
Railroad. And then what happened, Your Honor, is we produced16
this expert report, and I believe Dr. Hunt was critical of us17
having put the Sylvania New York City proposal together with18
the Kar Trak video in a single chart, so what we did was break19
it apart, and then we provided another chart of the Boston &20
Maine Railroad, which counsel has had for over a week with no21
objection.22
MR. HOSIER: Well, when am I supposed to object,23
before you go to court?24
MR. McCABE: You were more than welcome to raise the25
ALLAIS - DIRECT0084
issue. But go ahead.1
THE COURT: Well, the objection's being made now. 2
And go ahead.3
MR. McCABE: Yeah.4
MR. HOSIER: And, Your Honor, as you'll see, the5
chart in the back -- I don't have any objection to them having6
the New York City Transit proposal --7
THE COURT: Right.8
MR. HOSIER: -- and the associated video to the9
extent they want to rely on it. But, as the witness said, he10
only looked at it as anecdotal history and not for anything11
substantive.12
THE COURT: Your objection to the latest chart goes13
to the column that purports to summarize the Boston & Maine14
Railroad, May 1961, and the Duluth, Mesabi & Iron Range15
Railroad 1965.16
MR. HOSIER: Yeah. They now break those apart.17
Those aren't the video that's there. They break those apart,18
put them in two separate columns, create two separate new19
expert report charts totally outside of the scope of the20
expert report that was submitted in the case. They I think21
can properly rely on the New York Transit. Those other two22
never have been in this case.23
THE COURT: All right.24
MR. McCABE: They're referenced in the report as25
ALLAIS - DIRECT0085
I've pointed Your Honor to, and I don't believe there's any1
requirement to make -- to make charts for every report.2
MR. HOSIER: No. The only way they're --3
MR. McCABE: We're doing this now --4
MR. HOSIER: I'm sorry.5
MR. McCABE: -- to speed the testimony along.6
MR. HOSIER: The only way they came in the expert7
report, he's got a chronological history, which is what the8
Court kept out of the record the other day. And one of the9
items mentioned on this chronological history that was outside10
of the testimony of the witness is this Mesabi, Iron Range11
video and activity, I should say.12
MR. McCABE: Your Honor --13
MR. HOSIER: And it's not reflected in the video. 14
It's --15
THE COURT: Well, look. I'll let the witness use16
the chart to illustrate his testimony. We don't have to17
receive charts in -- summaries of charts into evidence anyway. 18
But I may receive this. I'm not sure that -- you know, if19
it's inaccurate in any way, I'd certainly --20
MR. HOSIER: What's most important to me is that21
there must be some reason they're going beyond what they had22
before and are going to try and convey something to this23
videotape that's not there -- 24
THE COURT: Well, no. As I understood the --25
ALLAIS - DIRECT0086
MR. HOSIER: -- convey something --1
THE COURT: As I understood Mr. McCabe, what he's2
representing is that what's reflected on the chart simply3
reflects what's contained in the text of the expert report.4
It doesn't -- it doesn't do more than what's in the5
text of the report, does it?6
MR. HOSIER: Well, this is a prelude to where he's7
going next, which is --8
THE COURT: Well, just answer that first. I mean --9
MR. McCABE: Yeah. In the expert report we10
referenced the three installations.11
THE COURT: Right.12
MR. McCABE: Attached to the expert report was a13
claim chart that went through and detailed two of them, New14
York City and the Duluth, Mesabi. We submitted that to15
defendants in August. We waited, we waited, we raised the16
issue with the Court, trying to get their prosecution laches17
reports. We did not get theirs until the end of October, at18
which point they criticized our charts. So we went back and19
tried to overcome their criticism. We provided those charts,20
and we heard nothing from them until today.21
MR. HOSIER: But they're not overcoming our22
criticism. They're -- what they're trying to do is to do23
something different than they had done before and to try and24
get into evidence -- this Boston & Maine Railroad, there isn't25
ALLAIS - DIRECT0087
a single shred of paper, nothing that discloses what this is.1
THE COURT: I'll tell you what. Let's move forward. 2
I'll reserve ruling on whether to receive --3
What's the number again of the chart?4
MR. McCABE: 3536, Your Honor.5
THE COURT: -- 3536, on whether to receive that6
chart into evidence in its entire form or its entirety until7
after cross-examination. Okay.8
MR. McCABE: Thank you.9
THE COURT: Go ahead.10
THE COURT: In fact, this might be probably a good11
time for a -- for a brief recess. How are we doing timewise,12
Mr. McCabe?13
MR. McCABE: Very good. I probably have maybe a14
half hour more.15
THE COURT: Okay. Let's take -- let's take a 10-16
minute break, and then we'll reconvene at about 3:00 o'clock,17
maybe a couple of minutes after 3:00, Donna.18
(Court recessed at 2:52 p.m., until 3:10 p.m.)19
THE COURT: Have a seat, everyone.20
Okay, Mr. McCabe, you can proceed.21
MR. McCABE: Thank you, Your Honor.22
BY MR. McCABE:23
Q I think before the break we were talking about Exhibit24
3536 --25
ALLAIS - DIRECT0088
THE COURT: Correct.1
BY MR. McCABE:2
Q -- which was the summary chart. Do you have that? It's3
probably the last --4
THE COURT: It's on the -- 5
MR. McCABE: It's on the screen.6
THE COURT: -- screen, as well.7
THE WITNESS: Oh. Oh, that one. Okay.8
BY MR. McCABE:9
Q Could you just walk us through that chart again. I'm not10
sure we got a full explanation.11
A Oh. Yes. Across the top are listed the three12
implementations of Kar Trak that we've been discussing, and on13
the left column are I think each of the claims asserted14
against the Symbol products, and, again, the red check marks15
indicate that to the extent the Court decides that the Symbol16
products infringe, then these patents would have practiced all17
the elements of each of those checked claims.18
Q Now, you said patents. I think --19
A Well, I meant -- I meant installations.20
Q Thank you. Could you explain what your opinion is based21
on.22
A Well, my opinion for the Boston & Maine and the Duluth,23
Mesabi & Iron Range Railroad is largely based on Mr. Collins's24
testimony in which he indicated that the Kar Trak system was25
ALLAIS - DIRECT0089
unchanged as it went through these various installations.1
Q Is it your opinion that all of the claims checked on2
Exhibit 3536 under Boston & Maine read on the Boston & Maine3
installation?4
A Yes.5
Q Okay. Is it your opinion that all of the claims checked6
in Exhibit 3536 read on the New York City installation?7
A Yes.8
Q And is it your opinions that all of the claims checked9
under Duluth, Mesabi & Iron Range Railroad read on the Duluth,10
Mesabi, Iron Range Railroad installation?11
A Yes.12
Q Could you turn to Exhibits 2899A.13
A Did you say 28?14
Q 2899A. Could you explain what that exhibit is.15
A Yes. This is my claim chart for the various patents that16
are applicable to the Boston & Maine Railroad.17
MR. HOSIER: And, Your Honor, this again is a --18
this is the chart that didn't exist in the expert report, was19
not part of anything, and, frankly, I'm not sure why they use20
it. Because on their chart that they have on the monitor for21
the New York Central -- or New York City Transit Authority,22
they've got it checked all the way down anyway. So this23
purports to be, I guess, redundant, and therefore I don't24
understand it.25
ALLAIS - DIRECT0090
And secondly, there is nothing in the expert report1
to support it, and there's nothing by way of reasonable2
testimony to support it. We have 41-year-old testimony on3
Boston & Maine without a single document as to what physically4
was actually there. And the Mesabi, we've got a videotape5
that's got a three-page audio track, and we have nothing as to6
what was there. And that's 37 years old. I don't -- and I7
don't see the point of it.8
MR. McCABE: May I respond, Your Honor?9
THE COURT: Yes.10
MR. McCABE: First, in terms of whether it's11
redundant or not, if Counsel's conceding that New York City is12
a prior use that the claims read on, then it would be13
redundant. But I don't think Counsel is here to concede that.14
Secondly, I think Counsel points out exactly the15
problem with the laches issue here, that the evidence is so16
old. Because Mr. Lemelson waited 30, 40, whatever number of17
years to put these claims in. So it's not very easy to go18
back and get perhaps the level of documentary evidence that19
Counsel would like to hold us to because Mr. Lemelson waited20
so long.21
THE COURT: Well, the third part of the argument I22
think is that the 2899 series, A, B --23
MR. McCABE: Yes.24
THE COURT: -- and C, A, which relates to the Boston25
ALLAIS - DIRECT0091
& Maine Railroad, and C, which relates to the Duluth, Mesabi,1
and Iron Range Railroad 1965, are charts that were not2
previously produced, as I understand it, whereas the 2899B,3
relating to the New York City Transit Authority, was4
apparently produced --5
MR. McCABE: But that --6
THE COURT: -- and is not objected to.7
MR. McCABE: Could I comment on that, Your Honor?8
THE COURT: Yes.9
MR. McCABE: That's not exactly correct. The chart10
that was in the expert report in August had a column that11
included the New York City and the Duluth, Mesabi. We've12
simply broken that apart into two separate charts. The expert13
report also referenced the Boston --14
THE COURT: The content of it is otherwise the same,15
it's just formatted differently, or --16
MR. McCABE: Well, it's formatted differently, and17
the content would be changed a little bit in that --18
MR. HOSIER: That's the point.19
MR. McCABE: May I address that, Mr. Hosier?20
THE COURT: Well, hold on. Yeah. No. Go ahead.21
MR. McCABE: The content is -- might be a little22
different in that the New York City we have a printed document23
that we were quoting from; and we did not want to put things24
in quotes, in the Duluth, Mesabi, because -- it's the same25
ALLAIS - DIRECT0092
information, but that's how it changed.1
THE COURT: Well, look. The simplest thing to do,2
again, is to let the witness testify subject to striking. 3
I'll reserve receiving 2899A or 2899C until after cross-4
examination. I will receive 2899B, which I understand has5
previously been produced.6
(Plaintiff's Exhibit 2899B admitted)7
MR. HOSIER: Your Honor, I just want to note when I8
took the deposition, and I'm trying to rely on this for9
preparation for trial, I asked:10
"Did the videotape disclose to you anything about11
the structure and operation of the Kar Trak system12
in terms of the claim elements?13
"Answer: I did not explicitly rely on the videotape14
except as an anecdotal piece of history."15
Now I have the witness on the stand testifying16
precisely to the opposite about that videotape. And I think17
it's inappropriate when it's not in the expert report and I18
have that kind of testimony.19
THE COURT: Well, it may be. And if I agree with20
you, I won't receive the exhibit and I'll strike the testimony21
that goes to that. But --22
MR. McCABE: Your Honor, since the deposition of Dr.23
Allais was taken Mr. Collins was here and testified about24
Boston & Maine and the operation of that, and we're relying on25
ALLAIS - DIRECT0093
that testimony as part of our case. It was not possible --1
THE COURT: All right. Well, let's let the witness2
tell us what he's relying on. I think that would be the3
most --4
MR. HOSIER: Mr. Collins had testified by deposition5
in advance of the expert report being given.6
THE COURT: I know. And he's -- well, and he's also7
testified here at trial. But --8
MR. HOSIER: And he's been on the payroll for nine9
months, Mr. Collins.10
THE COURT: All right. Let's go ahead, Mr. McCabe. 11
Finish -- proceed with your examination of the witness here.12
MR. McCABE: Thank you.13
BY MR. McCABE:14
Q With respect to the Boston & Maine Railroad --15
A Yes.16
Q -- what is your opinion based on?17
A Well, my opinion is based on Mr. Collins's testimony that18
this installation was of the same device, i.e., the Kar Trak19
scanning system, as was documented in the New York Transit20
Authority.21
THE COURT: And you say based on Dr. -- I'm sorry --22
THE WITNESS: Based on Mr. Collins's testimony.23
THE COURT: -- Mr. Collins's testimony at trial?24
THE WITNESS: At trial, yes, that this was the --25
ALLAIS - DIRECT0094
THE COURT: All right. Had you reviewed his1
deposition testimony prior to preparing your report in August,2
the Exhibit 2895?3
THE WITNESS: Yes, I had reviewed his deposition,4
sir.5
THE COURT: All right. But you didn't -- or did you6
rely on it in preparing your expert report?7
THE WITNESS: Well, I did in general. But, as I8
recall, at trial Mr. Collins specifically stated that the9
Boston & Maine and the Duluth, Mesabi & Iron Range were the10
same system as was implemented in New York Transit Authority.11
MR. HOSIER: And the only thing I'd like to add,12
Your Honor, is I didn't take Mr. Collins's deposition. They13
took his deposition. I cross-examined.14
THE COURT: Okay. All right. Well, let's -- 15
MR. HOSIER: So --16
THE COURT: Let's move on and let Mr. McCabe finish17
his direct with this witness.18
MR. McCABE: Thank you.19
BY MR. McCABE:20
Q With respect to the New York City Transit Authority, did21
you rely on Exhibit 380? It should be in the blue book. I22
don't know if you have the blue book there.23
A Yes.24
Q Did you also rely on Mr. Collins's testimony?25
ALLAIS - DIRECT0095
A To the extent of elaborating on the system, it was1
helpful.2
MR. HOSIER: Your Honor, I'm sorry to keep popping3
up, but may I ask whether the Court's copy of Plaintiff's4
Trial Exhibit 380 has consecutive pages in it? Mine has 0735
and jumps to 075.6
THE COURT: Mine does, too.7
MR. McCABE: Mine does, too.8
MR. HOSIER: Well, it's very interesting, because9
the page that's omitted is the page on confidentiality, which10
I would like to show the Court. May I?11
THE COURT: Sure. Wasn't 380 received previously?12
MR. McCABE: Yes, Your Honor, it was. I think the13
copy in the book -- I can't explain what happened here.14
MR. HOSIER: I guess it's a --15
THE COURT: I thought we'd received it during the16
testimony of Mr. Collins, but --17
MR. McCABE: I believe that's correct, Your Honor.18
MR. HOSIER: Well, we did, Your Honor. The only19
thing is, now, when it's presented to the witness, page 074 is20
removed about which I examined Mr. Collins, and I find it --21
you know, another one of these transitions maybe from Word to22
Word Perfect. I can't understand why they've tampered with23
the Court's exhibit and given a different exhibit to this24
witness.25
ALLAIS - DIRECT0096
THE COURT: Hold on just a second. I've got the --1
MR. McCABE: I'd just like to state that we resent2
the implication.3
THE COURT: Okay. Well, we don't -- let's just --4
I'll tell you what.5
Anita -- I'm sorry. Donna, remove 380 from the6
book, the exhibit book, and we'll use the 380 that's in7
evidence that has the page 2 -- well, it's not really page 2,8
it's the second page, 000074, and just put that in front of9
the witness, and you can toss the other one. Okay.10
MR. McCABE: I apologize for the missing page, Your11
Honor.12
THE COURT: All right. Have you seen Exhibit 380 in13
the form with that second page, "Proposal For An Automatic14
Urban Transit Vehicle Identification System" before?15
THE WITNESS: Yes, I certainly have. And I did not16
proofread these exhibits to see if there were missing pages.17
THE COURT: Okay. All right. All right. Go ahead.18
BY MR. McCABE:19
Q Okay. Turning to the Duluth, Mesabi & Iron Range20
Railroad on your chart, what do you rely on -- what did you21
consider in forming your opinion with respect to that one?22
A Well, I considered Mr. Collins's testimony that that23
installation was the same as that in the New York Transit24
Authority.25
ALLAIS - DIRECT0097
Q Okay. Did you review the videotape?1
A I also saw that as evidence that it really existed.2
MR. McCABE: Well, I'd like to offer the claim3
charts.4
THE COURT: Well, I'm going to reserve receipt of5
those.6
MR. McCABE: I understand that.7
THE COURT: But I'll let the witness -- if you have8
something you wanted to elicit from the -- further from the9
witness about it, go ahead.10
MR. McCABE: No, we -- he's already given his11
opinion that he believes they read on it.12
THE COURT: All right. Well, your offer right now,13
I'll simply reserve ruling till after cross-examination, and14
I'll make a determination then.15
BY MR. McCABE:16
Q Okay. I'd like to change gears now. Yesterday, Dr.17
Allais, you testified that you invented [Interleaved 205 bar18
code symbology in 1972. Prior to that development was there a19
205 bar code symbology?20
A Yes, there was. And that was developed by Identicon21
Corporation some years earlier, I believe in 1968.22
Q Are you familiar with the concept of Delta Distance A23
Code?24
THE COURT: Say again?25
ALLAIS - DIRECT0098
MR. McCABE: Delta Distance A Code.1
THE COURT: All right.2
THE WITNESS: Yes. Delta Distance A and also Delta3
Distance B and C were proposed in an important paper by Paul4
McEnroe, who had been my colleague at IBM. And, to my5
knowledge, it was the first time that the problem of ink6
spread in printing was recognized and a structural7
characteristic of bar code symbology was recommended whereby8
the decoder would consider the leading edge of a bar to the9
leading edge of the next bar and the trailing edge of a bar to10
the trailing edge of the next bar as its measurements, which11
would be unaffected by ink spread. This was a tremendous12
contribution to the intellectual makeup of bar codes, and in13
fact UPC symbol was based on that, and the great majority of14
the subsequent symbologies have used that principle.15
Q Did you have any role or were you present in 1974 when16
bar code scanners were being used at the Marsh Supermarket in17
Troy, Ohio?18
A Well, I was -- physically visited that store during the19
startup process, because my company, Intermec, had sold these20
printers that I described yesterday, and they were a very21
important part of that, because we didn't have the markings on22
the products that we do now, so they had to print stickers and23
put on there to demonstrate the feasibility of scanning. So I24
was definitely there in 1974.25
ALLAIS - DIRECT0099
Q Are you familiar with Code 128 bar code symbology?1
A Oh, very much so.2
Q Who developed that, and when?3
A That was developed by Ted Williams, then of Computer4
Identics, as a fine contribution to the field.5
Q And approximately when was that?6
A It was about 1981.7
Q Are you familiar with the U.S. military's LOGMARS use of8
bar codes?9
A Oh, very much so. That was a critical event for10
Intermec, because we spent years showing them the virtues of11
Code 39, and when they adopted that in I believe about 1982,12
that was a tremendous event for the industry.13
Q Could you briefly tell us what LOGMARS is.14
A Well, it was logistics -- the first letter stands for15
logistics in automated marking and symbols. I forget the16
exact acronym, but you know how the military is. And it17
resulted in requiring all material shipped to the Department18
of Defense to have the military part number in Code 39 bar19
code. So that was a tremendously big event for the industry.20
Q Did the automotive industry group adopt Code 39, also?21
A Well, a year later, in 1983, the automotive industry,22
through the Automotive Industry Action Group, standardized on23
Code 39 in a variety of ways for marking inventory items,24
parts, actually, from parts suppliers to be shipped in to the25
ALLAIS - DIRECT00100
car factories.1
Q At some point did the National Retail Merchants2
Association adopt the UPC?3
A Yes. That was perhaps 1986, '87, something in that time4
frame. Previously they had standardized on optical character5
recognition, which was a -- a kind of a funny-looking font on6
the little tickets in a department store. Little bit hard for7
humans to read. But when UPC became a great success, they8
abandoned that and adopted the UPC symbol.9
Q Is optical character recognition a form of bar code?10
A No.11
Q Dr. Allais, would you please tell us the differences, if12
any, between a series of black and white stripes like, for13
example, what you might see in a crosswalk and a bar code14
symbol?15
A Well, a crosswalk doesn't encode any data. A bar code16
symbology is carefully designed not only to encode data, but17
to do it in a way that when it's decoded there's a very small18
probability of getting the wrong data. All of the good19
symbologies have redundancies in internal checking20
characteristics which make them very solid for carrying data. 21
Typically a bar code has wide and narrow bars and spaces in22
certain relationships. Some of them have multiple widths, et23
cetera, et cetera, but it's very different from just a cross-24
hatching of lines.25
ALLAIS - DIRECT00101
Q Briefly, how is a bar code decoded?1
A Well --2
Q Just high-level view.3
A Very briefly, by subjecting the counts of transitions4
between light and dark to mathematical algorithms executed by5
a computer.6
Q Do the Lemelson patents disclose the use of any bar or7
bar-like elements as a code?8
A No, it does not.9
MR. HOSIER: Objection. This is beyond the scope of10
the expert report. He's never interpreted the Lemelson11
patents.12
THE COURT: I think we went through this yesterday.13
MR. McCABE: Well, I went back and read the expert14
report, Your Honor, and it's certainly in there. Perhaps we15
can show it to the Court.16
THE COURT: Just refer me to the -- I've got a copy17
of the report now.18
MR. McCABE: I don't know if you have the correct19
report. That's the prosecution laches report.20
THE COURT: Oh. I'm sorry. Okay. What page of the21
report?22
MR. McCABE: It's on page 6, paragraph 28, Your23
Honor.24
THE COURT: Seems to me it is.25
ALLAIS - DIRECT00102
MR. HOSIER: Well, I agree it's -- that the words1
are there.2
THE COURT: All right. Well, the objection's3
overruled. The answer will stand.4
BY MR. McCABE:5
Q Let me re-ask the question. Do the Lemelson patents6
disclose the use of any bar or bar-like element as a code?7
A No.8
Q Do the Lemelson patents disclose the use of a succession9
of bars as a code?10
A No.11
Q Do the Lemelson patents disclose an arrangement of bars12
and spaces that have a relationship to one another to form a13
code?14
A No.15
Q Do the Lemelson patents disclose any predefined patterns16
and rules of bar code symbology?17
A No.18
Q Let me ask you more broadly. Do the Lemelson patents19
disclose any bars marks, production marks, alternating light20
and dark areas that are arranged in patterns so as to encode21
information?22
A No.23
Q Do the Lemelson patents disclose any algorithms for24
decoding bar codes, marks, or any other pattern?25
ALLAIS - DIRECT00103
A No.1
Q Do the Symbol bar code scanners measure or detect2
defects, scratches, marks, holes, or discolorations in the3
object being scanned?4
A No. Symbol bar code scanners do the best they can to5
ignore any kind of defects in the printing.6
Q In your -- well, do any of the Lemelson patents disclose7
any symbologies?8
A No, they do not.9
Q Do any of the Lemelson patents -- I'm talking about the10
ones in the suit -- teach any algorithms necessary for bar11
code reading?12
A No.13
Q In your opinion do the Lemelson patents in suit deserve14
any credit for the development of bar code as it's practiced15
today?16
A No. Because bar code today was developed quite17
independently of anything in those patents.18
Q Did you conduct a search of the United State Patent19
Office's electronic database for patents assigned to Symbol20
Technologies?21
A Yes, I did.22
Q Approximately how many patents did you find?23
A Well, it was five hundred and some-odd.24
Q Did you conduct a second search to determine how many of25
ALLAIS - DIRECT00104
those 500 or so patents assigned to Symbol had a Lemelson1
patent cited against them as prior art?2
MR. HOSIER: This is definitely beyond the scope of3
any expert report.4
MR. McCABE: I'm not going to ask him for an5
opinion. These are just facts.6
MR. HOSIER: Well, this is argument, and it's going7
to be introduced through somebody else. It's not in the8
expert report. I think Mr. McCabe -- none of this testimony9
is.10
THE COURT: None of which testimony?11
MR. HOSIER: None of this reference to looking at12
any Symbol patents and doing searches in the Patent Office and13
so on. Not even alluded to in the remotest way.14
THE COURT: If it's not a predicate to an opinion of15
his, what's the relevance whether he searched patents or --16
MR. McCABE: We just want to establish that of the17
500 or more Symbol patents, many of which relate to bar code18
and bar code scanning, the United States Patent Office --19
THE COURT: Symbol patents, you mean Lemelson --20
MR. McCABE: No. Symbol patents?21
THE COURT: Symbol. Okay. I'm sorry. Of the 50022
Symbol patents --23
MR. McCABE: -- that relate to bar codes, bar code24
scanning, bar code technology, the United States Patent Office25
ALLAIS - DIRECT00105
has not cited a single Lemelson patent as prior art against1
any of those.2
MR. HOSIER: You know, if they wanted to make this3
argument, they could have done it through their own Symbol4
witnesses.5
THE COURT: Yeah, I'll sustain the objection as to6
this witness testifying to that.7
MR. McCABE: Well, I hate to end on a sustained8
objection, but that's where we are.9
MR. HOSIER: I'll let you ask another question10
without objection.11
MR. McCABE: No, that's --12
THE COURT: Well, you just shortened -- you just13
shortened the time for cross-examination to two hours and14
fifty-one minutes, so -- that's what Mr. Hosier has, so --15
MR. McCABE: I have a list of exhibits that were16
referred to today, and I'm going to work with Mr. Hosier to17
make sure we're in agreement before I offer them.18
THE COURT: Sure. Great.19
All right, Mr. Hosier, why don't we go ahead and20
begin your cross, then.21
MR. HOSIER: You're working me pretty hard today,22
Judge. I was in a deposition at 8:00 o'clock this morning.23
THE COURT: And I hope you all got that wrapped up.24
MR. HOSIER: Yes.25
ALLAIS - DIRECT00106
THE COURT: Good. Well, at the rate we're going,1
you'll need to have Mr. Williamson here, I guess, certainly2
Thursday morning. So --3
MR. HOSIER: That would be our plan, I think, Your4
Honor.5
THE COURT: Good.6
MR. HOSIER: It'd be Thursday morning.7
MR. LISA: Thursday morning would be fine.8
THE COURT: Well, unless he's here -- it depends how9
long you've got in cross. We could even start him tomorrow10
afternoon, if he's here.11
MR. LISA: We could probably start some of the12
original stuff tomorrow. I mean -- we have a full day13
tomorrow, or half?14
THE COURT: No. Half day tomorrow.15
MR. LISA: Tomorrow afternoon?16
THE COURT: But let's get --17
MR. LISA: We'll have him available tomorrow18
afternoon.19
THE COURT: Yeah. Let's get started with cross.20
MR. HOSIER: We've gone from slow to maybe moving a21
little quicker, I hope.22
CROSS-EXAMINATION23
BY MR. HOSIER:24
Q Sir, you joined Intermec as a startup company in '68, as25
ALLAIS - DIRECT00107
you testified; correct?1
A Yes, that is correct.2
Q And for 14 years, from '73 to '87, you were its president3
and CEO; correct?4
A That would be the right interval.5
Q And during the entirety of that time you were president6
and CEO you were doing business with Symbol and other bar code7
equipment makers; correct?8
A Well, I think it's fair to say that the business that9
Intermec did with Symbol Technologies occurred somewhat on and10
off during that 14-year period.11
Q Well, actually, let me take that back. It would have had12
to start in about late '70s, when you bought the Laser Check?13
A That would have been our first actual piece of business14
with Symbol, yes.15
Q Intermec is -- and in fact you stayed with Intermec --16
you left in September 1988, but had a five-year consulting17
agreement with them and were therefore associated with the18
company until September 1993; correct?19
A In a formal sense. But that was really just an exit20
compensation package.21
Q But it was a formal consulting agreement, and you had an22
arrangement and consulting package and financial remuneration23
from them for five years?24
A That's correct.25
ALLAIS - DIRECT00108
Q And Intermec is one of the plaintiffs in this case; is it1
not?2
A I believe that's true.3
Q And you, while still on that consulting contract with4
Intermec, were retained by Ford and Motorola as an expert in5
the Ford case; correct?6
A That's correct.7
Q And from 1989 to the present you've been in the current8
business that now is known as Path Guide; right?9
A That's correct.10
Q And your business in Path Guide is consulting for and11
supplying equipment to bar code users?12
A That's correct.13
Q And you are a business partner of Symbol Technologies in14
that business; correct?15
A That would not be correct.16
Q You're not aware of a Symbol Technologies press release17
identifying Path Guide as a business partner of Symbol?18
A Maybe you could refresh my memory by showing me that19
press release.20
Q Defendant's Trial Exhibit 2220 I'll ask be shown to you.21
And while we're looking for that, let's see if we can22
make some progress on some other items.23
At Path Guide and for the last time period from '8924
through the present Symbol has been one of your suppliers, as25
ALLAIS - DIRECT00109
well; right?1
A Only occasionally through a reseller.2
Q But they have been a supplier?3
A Almost vanishingly small in that sense.4
Q Intermec and Zebra have been suppliers; correct?5
A Intermec and Zebra have been suppliers.6
Q Both of them are plaintiffs in this case; correct?7
A I believe that's correct.8
Q [PFC and Telzon have been suppliers to your business;9
correct?10
A Excuse me. What was the first company?11
Q PFC and Telzon.12
Q Almost vanishingly small.13
Q Both of them?14
A Well, Telzon maybe once in perhaps 1991 or '2, and PFC15
occasionally, but only for their verifier product line.16
Q And those are likewise plaintiffs in this case; correct?17
A I don't have personal knowledge of that, but I've been18
told that.19
Q Well, you know that Telzon has been acquired by Symbol;20
correct?21
A That's what the press release says, yes.22
Q And you've been an expert witness in a prior case for23
Symbol; is that right?24
A That's -- that's correct.25
ALLAIS - DIRECT00110
Q And that was the Opticon case?1
A That was the Opticon in the United Kingdom case.2
Q And in that case Mr. Collins was an expert witness for3
Opticon; is that right?4
A I believe that's correct.5
Q And Mr. Collins was offering testimony that the Kar Trak6
activity anticipated or rendered obvious Mr. Swartz's patent7
that we've been discussing here, Plaintiff's Exhibit 390, the8
hand-held scanner.9
A Well, I didn't hear his testimony, so I can't -- I have10
no comment on what he was offering.11
Q Well, you understood that was his role in the case, did12
you not?13
A Well, we could -- I don't recall today his exact14
structure of testimony, but I knew he was on the other side.15
Q Well, and Symbol, and you as their expert, were taking16
the position that the Kar Trak activity was different from17
what was done by Symbol, weren't you?18
A Well, there you're looking at --19
Q Yes or no?20
A Yes, in the sense of claim infringement down at the21
detailed level of a particular patent.22
Q All right. So you were --23
MR. McCABE: Your Honor, I'm going to object.24
THE COURT: Hold on one second.25
ALLAIS - DIRECT00111
Mr. McCabe.1
MR. McCABE: I object on relevance, and I think it's2
misleading. We're talking about now a Swartz patent that's3
not in suit here. The issue in this case is whether the4
Lemelson claims read on Kar Traks, whether the Lemelson claims5
read on the use of a Symbol product.6
THE COURT: All right. Mr. Hosier, what about that?7
MR. HOSIER: Well, number one, it's a speaking8
objection. Number two, the fact is the Swartz patent has been9
represented as being the LS100, the LS1000, and there's been10
representation that the all of the products of Symbol are the11
same for purposes of this case. And now the Kar Trak, when it12
was asserted against Symbol as being the same or very similar13
to the Symbol bar code scanner as represented in PX 390, the14
Swartz patent, and LS100 product and 1000 products, is totally15
different in that case.16
MR. McCABE: Your Honor --17
MR. HOSIER: So they made the argument there that18
they were distinct, different subject matters.19
MR. McCABE: Your Honor, the Swartz patent -- I20
don't have it in front of me, but my recollection is the21
claims are directed to a hand-held laser scanner, and they go22
on from there. They're completely different. For example,23
Claim 1, if I might read it, says --24
MR. HOSIER: If it's irrelevant --25
ALLAIS - DIRECT00112
MR. McCABE: "In a laser scanning system for reading1
bar code symbols a lightweight, easy-to-manipulate laser2
scanning head normally supportable only by a user throughout3
the reading of symbols comprising," and then there's a series4
of elements that it comprises. None of those elements are5
listed in the Lemelson patent. You don't hear any of that. 6
And the Kar Trak here is being used as a basis with respect to7
the Lemelson patents. It has nothing to do with hand-held8
laser scanners.9
MR. HOSIER: Sounds like tweedle-dee tweedle-dum to10
me, Your Honor. What it amounts to is in the Opticon case Kar11
Trak and Mr. Collins, as the person that was involved in that12
subject matter at that time frame, they are representing that13
what was done at Symbol would have been obvious in view of Kar14
Trak. What Symbol was taking by way of a position through15
this witness and others was that Symbol's technology was16
fundamentally different than Kar Trak, which is precisely the17
position we are taking, that it is fundamentally different18
than Kar Trak. Kar Trak has colored stripes and bars --19
THE COURT: All right. Look, we're going to spend20
more time talking about it than hearing what the witness has21
to say anyway. I'll overrule the objection. I'll let the22
witness respond to your question. Restate the question.23
BY MR. HOSIER:24
Q All right. Sir, you and Symbol were taking the position25
ALLAIS - DIRECT00113
that the Symbol technology in the Swartz patent, Plaintiff's1
Exhibit 390, was different from the Kar Trak technology that2
Mr. Collins was going to testify about in the lawsuit;3
correct?4
A Yes. To the extent that the Symbol scanner was a hand-5
held, trigger-operated, point-and-shoot device which was6
physically quite different and in its detailed elements and7
claim structure quite different.8
Q And you recall that Mr. Collins has testified by way of9
his deposition and at trial that they had laboratory10
activities that were Kar Trak in other than railroad-side11
form; correct?12
A I think I recall one very sketchy picture of such a13
device.14
Q Right. So in the lab at Sylvania they were trying to15
work with something that was a hand-held version of Kar Trak,16
weren't they?17
A About the size of a bread box.18
Q Okay. But that was hand-held version of Kar Trak, and19
that was what Mr. Collins on behalf of Opticon was saying20
anticipated the work of Symbol; right?21
A Well, that was a viewpoint.22
Q But that was Mr. Collins's viewpoint, wasn't it?23
A Well, that was what he was there to do.24
Q And you on behalf of Symbol were taking the opposite side25
ALLAIS - DIRECT00114
and saying that because Kar Trak involved equal-width color1
stripes and it decoded colors and not relative widths, these2
were fundamentally different technologies; isn't that true?3
A I don't recall the details of our argument from that case4
long ago, sir.5
Q Is that true?6
A I don't agree that --7
THE COURT: I think the witness just said he didn't8
recall, so --9
BY MR. HOSIER:10
Q Well, you understand that you were trying to point out in11
the Opticon Symbol case that there were distinctions between12
the way Kar Trak operated and Symbol's bar code scanners13
operated; isn't that true?14
A We were pointing out distinctions, but I do not recall15
the details of those distinctions and the arguments that we16
made.17
Q Well, and one of the distinctions is that with Symbol18
scanners they scan relative widths of bars and spaces;19
correct?20
A The decoding process for bar codes deals with --21
Q Can we have a yes or no?22
A -- widths of bars and spaces.23
Q So the answer's yes?24
A They do, yes.25
ALLAIS - DIRECT00115
Q And in the Kar Trak system you operate on equal-width1
bars; correct?2
A Well, only if you don't count two stripes together as a3
double-width bar.4
Q We'll get to that later.5
A Which is a clear enough way to look at it.6
Q I'll disprove that one later. But let's get on to my7
question. All of the stripes that you showed in the exhibit8
to the Court just a few minutes ago on the side of the boxcar9
for Kar Trak were the identical equal width, were they not?10
A Yes, until you put two together. That makes a double11
width.12
Q Did I ask that? Each bar -- if there's two white bars13
together, there are two distinct white bars, aren't there?14
A Well, there's two pieces of tape.15
Q Each equal width, aren't they?16
A Each of the physical pieces --17
Q Is an equal width?18
A -- are equal width.19
Q So every one, whether they're white, black, blue -- what20
was the other color?21
THE COURT: Orange.22
BY MR. HOSIER:23
Q -- blue and orange, are all equal width, are they not?24
A Well, there were no black stripes, but there were25
ALLAIS - DIRECT00116
absences of stripe.1
Q Okay. Absence of stripe, everything was equal width?2
A Well, the stripes that were reflective were the same3
width until you put two together.4
Q All right. And the distinction was they distinguished5
based on color, did they not?6
A They did except for the claims, where the claims can --7
Q I'm not asking about -- I'm talking about the teaching of8
the patent.9
A Specification has a preferred embodiment, but the rest of10
the invention could be used with a single color.11
Q We'll get to that, too. The only thing disclosed and the12
only thing you showed the Court about Kar Trak was different13
colors; isn't that true?14
A Well, I showed a figure from the -- from the patent that15
was illustrating orange and blue and black, yes.16
Q Can you answer my question yes or no, sir. Did the17
things that you showed the Court -- the only things you showed18
this Court about Kar Trak were equal-width, different-color19
stripes; true?20
A Well, except for my opinion that two equal stripes21
together make a double-width stripe.22
THE COURT: With that qualification, though, they're23
equal width?24
THE WITNESS: Well, the individual pieces on the --25
ALLAIS - DIRECT00117
in the frame are equal width.1
BY MR. HOSIER:2
Q So -- and Kar Trak distinguishes by -- on the basis of3
color, does it not?4
A Well, it distinguishes on the basis of color and timing5
to detect those double-width stripes.6
Q If two white are in a row, it detects one thing. If it7
detects a blue or an orange in a row, it detects something8
else; correct?9
A Well, it detects the color, and it detects the first10
position and second position corresponding to that color.11
Q We'll get to exactly how it works. But the fact is you12
were relying on precisely these kinds of distinctions we've13
just been discussing in your expert role on behalf of Symbol14
to distinguish the Kar Trak from the Symbol bar code scanner15
products, weren't you?16
A I don't recall the distinctions that we made or the17
arguments that we made.18
Q Well, the biggest and best distinctions were the fact19
that it operated on color and equal widths, rather than on20
black and white and relative widths. Aren't those the big21
distinctions?22
A I don't -- I don't recall what the arguments were that we23
made seven or eight years ago.24
Q And you can't recall any other distinctions other than25
ALLAIS - DIRECT00118
the ones I've pointed out to you. Fair to say?1
A Well, as I say, the handle, the trigger, the aim, the2
size, the structure were significant distinctions.3
Q And that's just how big --4
A Well -- 5
Q -- right? That's just the ergonomics?6
A That's a factor in it.7
Q Okay. Now let's move on.8
THE COURT: The witness has this exhibit that you9
passed up, the press release, 2220, if you wanted to --10
MR. HOSIER: Oh. I'm glad you brought that back to11
me, Your Honor.12
BY MR. HOSIER:13
Q Let me direct your attention to Defendant's Trial Exhibit14
2220. Do you have that before you, sir?15
A Yes, I do.16
Q And do you see it's a July 28, 1999, press release,17
Symbol Technologies?18
A I see the date.19
Q And do you see in the last paragraph of that press20
release it calls -- it states as -- and I quote, "Symbol21
business partner Applied Tactical System, a system integrator22
and software developer." Is that your company?23
A No. That's an independent company in Fairfield, New24
Jersey, that was run by a former Intermec distributer.25
ALLAIS - DIRECT00119
Q Oh. It bears the same name as your company?1
A Yes. When I founded my company there was thoughts of2
merging those two companies downstream. My company is Applied3
Tactical Systems of Washington, Inc. And in fact, rather than4
growing together, we grew apart.5
Q Okay. Suggest you contact your trademark lawyer.6
Now, you've also been an expert witness for the Uniform7
Product Council, have you not?8
A Uniform Code Council.9
Q Uniform Code Council.10
A That was sometime in the past, yes.11
Q And that was in an action brought by an independent12
inventor; is that right?13
A That's true.14
Q And you've served on, as you've mentioned, the GSC15
Committee of the Uniform Code Council?16
A Which I still do to this day.17
Q And that Code Council, that committee, is made up of the18
whole field of logistics as products flow from original19
manufacturers to distributors to retail; correct?20
A Well, the Code Council itself is comprised of21
manufacturers and retailers and wholesalers in that22
distribution chain.23
Q And these are all the major users of bar code technology?24
A Well, not the industrial users like Ford and General25
ALLAIS - DIRECT00120
Motors and -- you know, manufacturers. It's manufacturers of1
products sold at retail and the retailers that consume those.2
Q And the retailers you know to be among the many3
defendants in the litigations filed by Lemelson; correct?4
A That's what I've been told.5
Q So all of those were the people who you serve on that6
committee and serve with?7
A Well, the --8
Q Correct?9
A Those are the underlying companies --10
Q Yes or no?11
A -- that form the UCC. The members of the committee are12
individual engineers in the industry with technical knowledge,13
and we simply serve as a noncompensated technical advisory14
board to the UCC. We have no financial interest in the UCC.15
Q You've also been an expert witness in a patent16
infringement case for a company known as Accusort, another one17
of the plaintiffs here; correct?18
A That's correct.19
Q And you've been an expert for PFC in a prior infringement20
suit; correct?21
A That's correct.22
Q And they're also a plaintiff here?23
A I believe that's true.24
Q So you've worked with all of the plaintiffs here --25
ALLAIS - DIRECT00121
A Well, I don't think so. I --1
Q -- in your business relations?2
A There must be ones that we don't work -- is Tech Logics3
involved?4
Q I don't believe so, sir.5
A Well, possibly. You named Intermec, Zebra, Accusort,6
PFC -- 7
Q Telzon.8
A Well, remotely Telzon, yes.9
Q And you -- you know that Telzon has been acquired by10
Symbol, do you not?11
A Yes. You pointed that out.12
Q And in the prior litigation you were retained, as well,13
by General Motors until that case was stayed in 1983 -- or14
1993, excuse me.15
A Yes. I don't recall the date, but I was retained.16
Q And in the Ford Motorola case you were retained shortly17
after suit was filed in August of '92 and acted as their18
expert through the entirety of that litigation; correct?19
A Yes.20
Q And in the Ford litigation what was at issue were Symbol21
bar code scanners in Ford's manufacturing operations; correct?22
A That was true. There were also Intermec products at23
Motorola.24
Q And there were also Symbol products at Motorola?25
ALLAIS - DIRECT00122
A There may have been.1
Q And some of the Symbol products at issue in the Ford case2
are the same products that are at issue here?3
A Well, they've certainly been discussed. The 8500, I4
believe, was one of the products.5
Q And you studied the Symbol scanners for the Ford case;6
that correct?7
A Yes.8
Q And you were aware that Ford had filed a third-party9
complaint against Symbol in the Ford case?10
A I'm not aware of that -- any of those legal11
manipulations.12
Q And did you consult with Symbol people during the course13
of the Ford litigation?14
A There was a -- there was some information about how15
scanners operated during that litigation.16
Q And did you work with Mr. Bravman during the course of17
that case?18
A I don't -- I don't specifically recall whether I worked19
with Mr. Bravman or others at Symbol in that time frame.20
Q Symbol 3000 was also at issue in the Ford case and at21
issue here; correct?22
A If it's a matter of record. I don't personally remember23
that by product number.24
Q Now, your company installs bar code systems into various25
ALLAIS - DIRECT00123
facilities of its customers, does it not?1
A Yes. Primarily distribution warehouses.2
Q Is your business known as a VAR, value-added reseller?3
A It could be that. It could be a system integrator.4
Q Okay. One of the two, meaning you acquire things like5
Symbol bar code scanners, bar code scanners from other people,6
equipment from Zebra, another one of the plaintiffs here,7
package them all together, and then see that they're installed8
in an operating fashion at some customer; correct?9
A Yes. Together with a great deal of software that we have10
developed internally.11
Q And in fact customers of yours have received letters from12
Lemelson; correct?13
A I believe there were two such letters that I'm aware of.14
Q And those letters through your customers were brought to15
your attention that installations that you had made were16
asserted to be infringing Lemelson patents?17
A I don't remember the content of the letters, but the18
assertion of infringement was described in the letters.19
THE COURT: Approximately when do you recall these20
letters being received by your customers?21
THE WITNESS: I think this was perhaps two and a22
half, three years ago, something like that.23
THE COURT: 1999, 2000?24
THE WITNESS: Could be.25
ALLAIS - DIRECT00124
THE COURT: All right.1
THE WITNESS: Yeah. It was before my active2
involvement on the present case.3
THE COURT: All right.4
BY MR. HOSIER:5
Q So it's fair to say, sir, that with all that -- well, let6
me first ask a couple more questions.7
You've referred to on your direct examination to Jerry8
Swartz, Rich Bravman. I take it you're on a first-name basis9
with all of the Symbol executives and have been on that basis10
for 20 years or more. Fair to say?11
A I know Jerry Swartz very well. I know Rich Bravman. 12
There are many executives at Symbol that I have no present13
acquaintanceship with.14
Q All right. But the highest-level executives are actually15
personal friends. Fair to say?16
A Well, the two -- those two are.17
Q They're about as high as you get, aren't they, chairman/18
founder with Mr. Swartz, current president/CEO with Mr.19
Bravman?20
A It would seem so.21
Q Okay. And likewise you have close relationships with the22
most senior executives of the other plaintiffs that we've23
named here from a personal standpoint; correct?24
A Not -- not -- not really. I have relationships with25
ALLAIS - DIRECT00125
middle management at Intermec today, very little relationship1
with the senior executives, and no relationship with the top2
executives of the other companies, other than knowing Al Werz3
[phonetic] of Accusort for many years.4
Q All right. But from the standpoint of your involvement5
here, fair to say that it would be bad for business if the6
Lemelson patents were held valid and infringed and good for7
business if the patents were held invalid and not infringed. 8
Fair to say?9
A Well, I think for Path Guide's business it would not be a10
consequential issue. We or our customers might have to pay11
some licensing fees, but it would not be a material issue.12
Q You didn't mention any of these close relationships on13
your direct examination, did you?14
A I don't -- I don't have any financial ties or anything15
else with those relationships.16
Q Well, you indicated that you might have to pay some fees17
yourself through your company for licensing should these18
patents be held valid and infringed.19
A Well, we have no legal obligation to do that. It would20
be a matter of working that out customer by customer.21
Q How did you come to the conclusion you have no legal22
obligation to do that?23
A Well, we -- we don't execute contracts with our customers24
that indemnify them against patent infringement.25
ALLAIS - DIRECT00126
Q But you ship them goods and install them and put them in1
their places of business and tell them that they're able to2
use these pieces of equipment in their business in normal3
course; right?4
A Well, I hope so.5
Q Do you advise --6
A Yeah. Sure.7
Q -- these companies that they're -- that the ball's in8
their court on any issues of infringement when you make these9
installation?10
A Well, other -- other than these Lemelson letters, the11
issue has never come up.12
Q Do you tell these customers that the ball's in their13
court on any issues of infringement?14
A We don't tell them anything one way or the other.15
Q Now, sir, I think you've mentioned on direct examination16
that you're credited with development of five bar code17
symbologies.18
A Yes.19
Q You serve on committees in the industry, but those are20
all bar code symbology committees, are they not?21
A Well, the GSC is concerned with bar code, along with22
other technical activities, and my past committee work with23
AIM and others has been related to bar code.24
Q In fact, it's been with bar code symbologies25
ALLAIS - DIRECT00127
predominantly, has it not?1
A Well, a lot of it, yes. Yes. There's other -- other2
aspects than just symbology.3
Q In fact, the only patent you've received in the last 274
years is for a bar code symbology; correct?5
A I haven't counted backwards. If that's the Code 496
patent, then we certainly discussed that.7
Q Yes. And that was a patent obtained about 13, 14 years8
ago; correct?9
A Right.10
Q And the next earlier patent is 27 years earlier. Namely,11
1975 is your next earliest patent on bar code technology;12
right?13
A I -- if that's what the date says on the patent. I don't14
-- I don't have that memorized.15
Q And in fact, the only patents you have in the bar code16
field are three, namely, the one on the symbology about 12, 1417
years ago, and two patents, one in '74, one in '75; right?18
A Well, I have a patent on, surprisingly, printing colored19
bar code, which is back at some time during the 1970s. I20
don't recall the patent number, but that's one of the group. 21
I didn't discuss it here.22
Q Well, you got -- that's one of the two, isn't it?23
A No.24
Q Is it now -- okay. So you've got --25
ALLAIS - DIRECT00128
A That's another one that I didn't think was relevant.1
Q All right. But the next earliest patent that you have in 2
the field is 27 years ago, and that's the one that dealt with3
this wand and some circuit that you described on your direct.4
A There was the wand, there was the edge-finding circuit,5
there was another one on printing colored bar code, and there6
were some mechanical detail-type things.7
Q Now, you didn't tell the Court about the printed color8
bar code patent, did you?9
A Well, I didn't think it was that interesting, because it10
never got developed.11
Q And it happens to be colors, like Kar Trak?12
A Happened to be green and black, which was used by the NCR13
Company for a retail bar code symbol before the UPC symbol was14
announced.15
Q All right. But what you did never got developed?16
A Didn't get developed. It was just an idea that might17
have worked but didn't.18
Q Okay. And these things that you told the Court about was19
the wand and the circuit, and one was 27 years ago, and one20
was 28 years ago; correct?21
A If those dates are correct. As I say, I don't -- I don't22
have -- can't recall a specific date.23
Q Well, if you want to check, it's in your resume, which is24
the first exhibit in your exhibit book.25
ALLAIS - DIRECT00129
A I don't think it's material whether it's 27, 25, 30,1
whatever, but --2
Q All right. But that's it. That's the only patents you3
have in the field; right?4
A Well, that's -- yeah.5
Q And you understand this case isn't about symbology, don't6
you?7
A Well, I understand that the very core of decoding a bar8
code goes to the symbology.9
Q Sir, you understand that Mr. Lemelson doesn't purport,10
like you did in your patent of 12 or 14 years ago, to have11
invented some specific form of symbology; correct?12
A Well, that's certainly true.13
Q You understood that what Mr. Lemelson was inventing or14
saying he invented was a -- methods for reading information on15
objects by scanning them, capturing that information in analog16
form, transforming it to digital form, putting it into a17
computer, and so on; correct?18
A Well, I wouldn't go through all that paraphrase. I mean,19
I wouldn't describe it that way. I would describe it as a20
measurement and inspection device.21
Q Well, you understood that what the claims purport to22
cover is a method; right?23
A I believe that language is in the claims.24
Q And all of your work lo these 25, 27 years is focused on25
ALLAIS - DIRECT00130
these symbologies that you're credited with developing; right?1
A Well, not if you take my role in Intermec of supervising2
the development of extensive printing and scanning equipment.3
Q Okay. Since you say you looked at the Patent Office4
files, did you see that the Patent Office, when it was5
provided prior art, so on, it was also told point blank that6
Lemelson's claims were of a scope to embrace bar coding?7
A I did not research file history. I'm not -- not here to8
talk about file history.9
Q Oh. Did you -- you have seen that file histories of the10
patents, though, have you not?11
A I've been shown small excerpts of file history, but12
that's not -- not my role here to --13
Q So you've stayed away from looking at what were advised14
by -- Lemelson advised the Patent Office as to the scope of15
his claims; is that right?16
A Yes. I've not -- I'm not claiming to have researched any17
of that file history.18
Q So when you told the Court that Lemelson doesn't disclose19
anything about bar coding or anything of that sort, you did it20
without knowledge of the communications Mr. Lemelson's counsel21
had made to the Patent Office when presenting claims, telling22
the Patent Office point blank, these claims are of a scope to23
embrace bar coding --24
MR. McCABE: I'm going to object, Your --25
ALLAIS - DIRECT00131
BY MR. HOSIER:1
Q -- is that right?2
MR. McCABE: I'm going to object, Your Honor. I3
don't have the document that Mr. Hosier's referring to, nor4
does the witness. But my recollection is the Patent Office5
rejected a claim directed to bar coding.6
THE COURT: Well, whatever the Patent Office did,7
the witness can answer the question as to whether he's aware8
of the communications.9
MR. HOSIER: Your Honor, these speaking objections,10
which are also inaccurate and then engage me in having to --11
THE COURT: All right. All right. Well -- 12
MR. HOSIER: -- hold my -- bite my tongue --13
THE COURT: I understand. But there's no jury here. 14
Let's go ahead and let the witness answer the question.15
Did you -- were you cognizant of any such16
communications?17
THE WITNESS: I recall only what Mr. McCabe18
described as a rejection of bar code. But my earlier19
testimony about there's no bar code in the Lemelson patent was20
confined to a careful reading of the common specification.21
THE COURT: All right.22
BY MR. HOSIER:23
Q So now you're saying you did read something in the file24
history, that now that Mr. McCabe said something you remember25
ALLAIS - DIRECT00132
reading something?1
A I said I've seen excerpts from the file history --2
Q But you -- 3
A -- I have not researched the file history. I didn't say4
I never saw any of it.5
Q But you don't recall Lemelson saying, I have claims that6
are of a breadth to embrace bar coding, and telling the Patent7
Office that and presenting all of the information and the8
Patent Office then allowing those claims?9
A I don't recall seeing that.10
Q Okay. Sir, what is a bar code?11
A Did you say what is a bar code?12
Q What is a bar code?13
A Well, a bar code or, more correctly, a bar code symbology14
-- and let's talk about a one-dimensional bar code for15
simplicity -- is a combination of bars and spaces arranged in16
such a way as to encode information in a secure fashion so17
that it can be accurately decoded by some kind of scanning18
apparatus.19
Q That's not the way you define it in your own book, is it?20
A Well, you know, it was --21
Q Is it?22
A -- a contemporaneous definition. I'll be happy to read23
that -- read it out of the book, if you'd like to bring it to24
me.25
ALLAIS - DIRECT00133
Q Well, isn't in fact a bar code an array of marks and1
spaces in a predetermined pattern?2
A Well, that would be a starting description.3
Q That is in your view a fair description of bar code. A4
bar code is an array of marks and spaces in a predetermined5
fashion. Fair to say?6
A Well, if I said that, I said it. It's okay. It doesn't7
describe full extent of what a bar code is.8
Q I want your testimony now, sir. Is that a fair9
definition of a bar code, is an array of marks and spaces in a10
predetermined pattern?11
A It's a limited definition.12
Q It's an accurate definition?13
A As far as it goes it's accurate.14
Q And it's a definition that you recall us discussing in a15
deposition in this case; correct?16
A Well, we did talk about the book, so, yeah.17
Q You agreed -- do you recall that you agreed then that it18
is proper to call a bar code an array of marks and spaces in a19
predetermined pattern? Correct?20
A It's not improper. I'd probably agree to that.21
Q And in fact your own book carries such a definition, does22
it not?23
A Well, you've read that to us, so I guess it does.24
Q And in fact what your book had, to be perfectly complete25
ALLAIS - DIRECT00134
about it -- and I'll put it before you, Defendant's Exhibit1
192 -- well, I was just going to use the excerpt, but that's2
all right.3
MR. HOSIER: It's a little more than I intended,4
Your Honor. I was going to use just the excerpt.5
THE COURT: That's all right. What page?6
MR. HOSIER: It's page 2.7
THE COURT: 2?8
MR. McCABE: Counsel, what page?9
MR. HOSIER: 2.10
MR. McCABE: Thanks.11
BY MR. HOSIER:12
Q And before we move on, sir, can we agree that this is13
your book, 1989 edition; correct?14
A Yes.15
Q So as of 1989 in a book authored by you you defined a bar16
code as "an array of rectangular marks and spaces in a17
predetermined pattern"; correct?18
A I did that, yes.19
Q And in fact when we talked about it you then called the20
Shane patent, the so-called bull's-eye code a bar code, as21
well, did you not?22
A I did.23
Q And then you agreed that the word "rectangular" should24
really come out of the definition, since the bull's-eye code25
ALLAIS - DIRECT00135
is not a rectangular code, it's a series of concentric1
circles; right?2
A Well, yes. But a slice of it would look the same.3
Q So that when you cut a slice through it, it's just a4
line; right?5
A It's a line with alternating light and dark segments.6
Q And then you agreed that the proper definition for bar7
code to embrace things such as Shane, the bull's-eye, would be8
to call it an array of marks and spaces in a predetermined9
pattern; correct?10
A Is that in my deposition?11
Q Yes.12
A It would -- it might be helpful to have that page of the13
definition -- the deposition in context --14
Q Do you agree with that or not? Can we move on, or --15
A I'd like to see the deposition just to see if there's16
context there.17
Q Well, I'm trying to ask you whether it's true or not.18
THE COURT: No, no. Yeah. Let's just talk about19
what the state of -- restate the question.20
The question's not a quiz on what is contained in21
your deposition.22
MR. HOSIER: Right.23
THE COURT: Restate the fundamental question that24
you had.25
ALLAIS - DIRECT00136
BY MR. HOSIER:1
Q I think we've already agreed to it, and maybe I'm2
belaboring it. But to define a bar code as an array of marks3
and spaces in a predetermined pattern is a definition that you4
accept and agree to as correct?5
A Yes, as far as it goes.6
Q Okay. Now, I notice you use the word "marks" in that7
definition, don't you?8
A "Marks" have been used synonymously for "bars."9
Q And "marks and spaces" or "marks" have been used for "bar10
code" for a long time, haven't they?11
A I think we established that in deposition, yes.12
Q In fact, there's a Woodland patent that you refer to that13
talks about "marks"; right?14
A If -- if we discussed Woodland using that term, I could15
accept that.16
Q All right. You even call the Stites patent a bar coding17
patent, do you not?18
A Yes.19
Q And that's in front of you, sir, as Plaintiff's Trial20
Exhibit 384. You have that in your book?21
THE COURT: I think it's in the -- yeah, it's in22
that binder, I believe, one of them.23
THE WITNESS: Yeah.24
BY MR. HOSIER:25
ALLAIS - DIRECT00137
Q And the very title of that patent is called "Mark1
Sensing," is it not?2
A Yes.3
Q And the Stites patent filed in 1981 -- excuse me, 1961,4
nowhere in that document is the word or expression "bar code,"5
is there?6
A I believe we've been through that, and it's not in there7
as a -- as a phrase.8
Q All it uses is marks for an identification of what now9
and many years later have come to be known as bar codes;10
right?11
A Well, whenever the terminology started it was adopted.12
Q In fact, you never even heard of the term "bar code"13
until the early '70s; right?14
A I don't recall the date.15
Q But is that about right?16
A Probably about 1971.17
Q Okay. And you've pointed to various patents here that go18
before 1971 that use the terms "marks" for an indication of19
what is known as a "bar code" today; right?20
A There is "marks" in those patents. Clearly it's in21
Stites. And I don't -- I don't recall the terminology22
specifically in some of the others.23
Q Well, in fact the Shane patent that you just brought to24
the attention of the Court and is in your book here, and you25
ALLAIS - DIRECT00138
called it the Kroger system over my objection; you recall1
that?2
A I called it what, sir?3
Q You called it having something to do with the Kroger4
system, the RCA patent.5
A Oh. Yes.6
Q And you called that a bar coding patent, didn't you?7
A Yes. Again a bull's-eye.8
Q And it was the bull's-eye pattern as we've discussed;9
right?10
A Yes.11
Q And nowhere in that patent is the expression "bar code"12
used; correct?13
A Without going back and researching it -- I'm not a14
vocabularist, and I didn't research that, but it could well15
be.16
Q Well, he used similar expressions to "marks" in his17
patent, did he not?18
A Let's see. Do you recall which exhibit the Shane --19
Q Yes. It's Plaintiff's Trial Exhibit 1676.20
A See where he talks about black-and-white concentric21
rings. If you know where he says "marks," I'll be happy to22
look at that.23
Q Well, you see no use of the term "bar code" in that24
patent even though it was filed in 1970?25
ALLAIS - DIRECT00139
A Well, as I say, I can't testify one way or the other. I 1
haven't looked for "bar code" in here as a -- as a word.2
Q Well, you recall that I did ask you those same questions3
in your deposition about this same patent, do you not?4
A Again, I don't -- I don't -- I don't deny that it was in5
the deposition, but I don't recall, you know, what happened6
during the whole day of deposition or different days on7
different times.8
Q Now, the Shane patent was filed in --9
THE COURT: October 20, 1949.10
MR. HOSIER: Well, no, this -- that's Woodland, Your11
Honor.12
THE COURT: Oh. That's Woodland.13
MR. HOSIER: I'm going to get to that. I'm a14
little --15
THE COURT: Ah. Sorry. I was -- I thought it was16
-- okay.17
MR. HOSIER: I'm still sticking with Shane for the18
moment.19
THE COURT: I'm sorry. When was the Shane patent20
filed?21
MR. HOSIER: I was trying to get ahead of the game22
on the exhibits.23
BY MR. HOSIER:24
Q Shane, which was Plaintiff's Trial Exhibit 1676, that25
ALLAIS - DIRECT00140
patent, filed in 1968, and which you called a bar code, is1
fourteen years after Lemelson filed his '54 application,2
twelve years after he filed his '56 application, nine years3
after the '54 application became accessible to the public and4
eight years after the Lemelson '63 patent issued; isn't that5
correct?6
A Well, I -- it seems the date on the Shane patent is7
November 1970. I -- 8
Q Well, there's -- actually, down below the assignee name9
you'll see it's a continuation of an application filed in '68.10
A Well, thank you for pointing that out. Yes.11
Q Okay. Now, I think you made some comments about work12
going on like this independently and without knowledge of13
Lemelson, did you not?14
A I did.15
Q And in fact, as I just pointed out, that the Shane patent16
was actually filed fourteen years after Lemelson filed his '5417
case, twelve years after his '56 application, nine years after18
his '54 application became accessible to the public, and eight19
years after the '63 Lemelson patent issued. Now, the fact is20
you have no knowledge what Mr. Shane or the industry at large21
considered in developing their technologies, do you?22
A I never met Mr. Shane.23
Q And so the answer is you don't know what information was24
taken by these people and relied upon in developing the25
ALLAIS - DIRECT00141
technology later that came to be known as bar coding; correct?1
A I've got no firsthand knowledge of that.2
Q Well, let me direct your attention to the Woodland3
patent, Plaintiff's Exhibit 501. Now, Mr. Woodland -- that's4
a patent filed in '49; correct?5
A Yes, that's correct.6
Q And I think you've referred to Mr. Woodland as a father7
of bar coding?8
A I think he's actually been given a national award to that9
effect.10
Q And you understand that no reliance is placed on the11
Woodland patent here in terms of any defense of invalidity of12
the Lemelson patents; correct?13
A Yes. I only heard three invalidity patents presented by14
Mr. Horn.15
Q And you know that the Woodland patent was in front of the16
Patent Office at the time the Lemelson patents were granted,17
do you?18
A Well, it was clearly issued at that time.19
Q Well, from your work in the Ford case and your role20
there, you reviewed the file histories; correct?21
A To a degree.22
Q And you were aware that Woodland was among the prior art23
that was brought to the attention of the Patent Office during24
the Lemelson prosecution; correct?25
ALLAIS - DIRECT00142
A I don't -- I don't recall that specifically. But clearly1
it's here, and the dates speak for themselves.2
Q All right. And Mr. Woodland does not use the word "bar3
coding" anywhere in his patent to describe what you now call a4
bar code; correct?5
A I think we've been through that, yes.6
Q And he calls it "marks" and "markings," does he not?7
A I could spend time trying to look for "marks," but I'll8
take your word for it.9
Q Well, you do recall that from our prior deposition, that10
that's what you discovered, that he used "marks" and11
"markings"?12
A Well, I can -- I can -- I can agree to that.13
Q Okay. That's the very same expressions used by Mr.14
Lemelson in his patent, isn't it?15
A Well, he used the term "production mark."16
Q "Production markings," didn't he?17
A I think that's correct.18
Q Okay. So that was an expression, "marks," "markings," a19
common expression used to identify prior to the 1971-72 time20
frame what came to be known in the world as bar coding; right?21
A Well, it would be true of Woodland and true of Stites.22
Q And certainly Shane didn't use it. In fact, you haven't23
found --24
A I'm not sure whether Shane used "marking" or not.25
ALLAIS - DIRECT00143
Q Well, I can assure you that Shane did not use bar coding. 1
Agree with that?2
A Okay.3
Q And you don't know of a single thing prior to sometime in4
the early '70s when the expression "bar coding" was coined; is5
that right?6
A I've not researched what either Plessey or Identicon7
called their symbologies. But the first time we encountered8
Plessey they called their symbol a bar code, and that was9
being used some years prior to 1971.10
Q Your knowledge of the term being used goes to 1971;11
right?12
A My personal knowledge goes to 1971.13
Q And you haven't had anything in the literature that14
you've seen in this case, any of the KarTrak literature of Mr.15
Collins, any of these patents that you've looked at prior to16
that time frame that use bar coding; right?17
MR. McCABE: Objection, Your Honor.18
Are you asking whether they used the term "bar19
coding"?20
MR. HOSIER: Used the word "bar coding" --21
MR. McCABE: Okay. Okay.22
THE COURT: All right.23
MR. HOSIER: -- expression "bar coding."24
BY MR. HOSIER:25
ALLAIS - DIRECT00144
Q Correct?1
A That's -- that's probably correct in the specific -- in2
the specific intervening rights patents that we have talked3
about this morning.4
Q Okay. So terms such as "marks" and "markings" were used,5
but then it came to be known -- years later, you then refer to6
those things as bar codes; right?7
A Right.8
Q Now, Woodland you call, as you said, a bar coding patent;9
right?10
A Right.11
Q Plaintiff's Exhibit 501. He uses a photocell, does he12
not, to illuminate the marks and spaces?13
A I would have to go back and study Woodland, but I -- I14
think a photocell is likely used to receive the reflected15
light.16
Q Excuse me. You're correct. I stand corrected.17
So he uses an incandescent light to illuminate the marks18
and spaces?19
A I recall that that was his light source, yes.20
Q And then he uses a photocell to receive the reflected21
light as the object is moved past the -- the photocell;22
correct? Maybe let me try and do it a little more artfully.23
In the Woodland patent there is disclosed a conveyor with24
an object on the conveyor carrying markings, and those25
ALLAIS - DIRECT00145
markings are moved past the incandescent light. And when it's1
moved past the incandescent light, the reflected light is2
either bright, where it's reflected from white spaces, or very3
low, where the light is hitting the black marks; correct?4
A There is relative movement between the circular bar code5
being scanned and the photocell. If I look at Figure 11, it6
appears that the article is on a conveyor. I also see some7
screw mechanisms in Figures 12 and 13 supporting a lens8
carriage and so on. I would have to go back and restudy all9
of the relative movement involvements, the embodiments here in10
Woodland, to recall exactly how it worked and whether he11
described one way to do it or several ways.12
Q Well, in fact, that was one way he did describe to do it,13
correct, as I've just described it?14
A Without some intervening lens movement, I'm not -- I'm15
not sure of that. I think there was a side-to-side movement16
of the lens. I would have to go back and study this to agree17
to exactly how the photocell was illuminated from the -- from18
the image.19
Q Well, you can agree, sir, that you can have either the20
object moved by a fixed beam, or the beam move across the21
marks and spaces; right?22
A Well, yes. But in Woodland I don't recall whether he was23
actually moving a lens back and forth, causing a scanning24
action while the item was being brought over on a conveyor. I25
ALLAIS - DIRECT00146
believe that would be his preferred way. But, as I say, it's1
been a long time since I've read this patent.2
Q But you agree that just moving an object past a photocell3
and a light source can effect scanning that would read a bar4
code?5
A With proper imaging, that could certainly be done, as it6
was in [Hippolania.7
Q Okay. Same kind of thing?8
A Same kind of thing.9
Q And what Symbol does and a lot of bar code scanners now10
is they sweep the beam instead of moving the object by;11
correct?12
A That's correct of all of the Symbol products-in-suit,13
yes.14
Q And the object is just to effect relative movement15
between the source that is sensing the reflected light and the16
object that is carrying these marks and spaces; correct?17
A That was a little bit of a long sentence. I lost the18
first phrase.19
Q Well, both things just effect a relative movement between20
the light source and the object carrying the marks and spaces.21
A Both -- both what things?22
Q You can either move the beam, as Symbol does, or you can23
move the object past the beam; right?24
A With -- with the correct optical implementation that can25
ALLAIS - DIRECT00147
be done.1
Q The answer's yes; right?2
A Yes, with correct optics.3
Q Okay. Now, what you now call bar coding is really4
somewhat related to machine vision, is it not?5
A I don't see any relationship.6
Q Well, let's see if I can help you. In bar coding you put7
a known marking on an object and then seek to locate it.8
A You put a marking on an object that has a great deal of9
built-in structure that can be -- can be decoded.10
Q All right. So you want to put markings on an object that11
uniquely identify the object; correct?12
A That identify the object for whatever purpose such13
identification is to be done.14
Q And in machine vision you're looking at an object, and15
you don't know exactly what's there, but you try to interpret16
what is there?17
A Well, all of my knowledge of machine vision comes from18
Mr. Silver's excellent presentation. And beyond that I have19
no comments on the objectives or methods of machine vision.20
Q Okay. Now, scanning was done with something other than21
lasers before the existence of lasers; correct?22
A That's correct.23
Q And what kind of columnated light sources existed prior24
to the laser?25
ALLAIS - DIRECT00148
A Well, it would be a lensing system focusing, for example,1
through mirrors, as was done in the Stites patent. That's a2
good example of a non-laser scanning device.3
Q All right. And that would maintain a reasonably narrow4
focus over some distance; correct?5
A It would maintain an adequate focus of the light. Again,6
in Stites it was not the outgoing beam that was defining --7
the outgoing beam was not sharply focused. It was the8
returned light back to the orange-and-blue detectors that were9
sharply focused.10
Q Well, certainly there's something in terms of a11
columnated light source that was available in the '50s, '60s12
-- '40s, '50s, '60s that was much better than the household13
flashlight; correct?14
A Well, you'd have to get down to specifics. There's15
always a divergence problem and a depth of accuracy of focus16
of non-laser light sources.17
Q But your choice of having a beam for scanning for reading18
a marks and spaces wasn't one of choosing between a laser on19
the one hand and a household flashlight on the other, was it?20
A Well, the beams going out to illumine the object in the21
actual bar code scanners were -- were generally not sharply22
focused. In the white-light scanners it was the return light23
back to the detector that was focused and managed.24
Q Right. But there were also columnated light sources that25
ALLAIS - DIRECT00149
could be used and were used for scanning purposes prior to the1
invention of the laser; right?2
A Well, the bar code scanners, in my experience, don't --3
did not use highly columnated light sources. The Stites4
patent's probably about as good as they got.5
Q But that was a columnated light source?6
A A little bit columnated, yes.7
Q Much better than a household flashlight?8
A Well, I don't know how large the beam was in Stites. I9
wasn't physically there.10
Q And you know that the laser was not a development of the11
bar code industry; right?12
A That was developed independently. Or invented13
independently.14
Q And it's found wide applications in surgery for -- you15
know, and in welding and so on; correct?16
A There's many applications for lasers.17
Q And a laser is a radiation beam, is it not?18
A Yes.19
Q And certainly it's proper to call the laser the way it is20
moved in the Symbol bar code scanner such as shown in the21
Swartz patent, PX 390, as a flying spot scanner, is it not?22
A I think that terminology is debatable. And, you know, on23
the one hand Dr. Horn has his clear testimony about that, and24
I'm sure you folks have your clear testimony. I don't -- I25
ALLAIS - DIRECT00150
don't really have an opinion about whether that's correct to1
call a flying spot scanner.2
Q All your years in the industry you don't have any3
opinions on this whatsoever; is that right?4
A I'm not a vocabularist, and I never used a classic flying5
spot scanner in any of my engineering work.6
Q Well, did you see it called in the Symbol patents -- they7
call it a flying spot scanner, do they not?8
A Well, if I could read the patents, I think there was some9
testimony about that. I don't want to affirm or deny what's10
already testimony.11
Q You didn't look at that?12
A I did not study any Symbol patents in preparation for13
this case.14
Q I thought you had done some big search.15
A Oh. That's just on the Internet, just looking at 50016
patents and what was referenced against 'em.17
Q Well, you were here when Dr. Swartz testified, were you18
not?19
A I was.20
Q And you heard him say that the patents on which his name21
were applied and which represented embodiments of the Symbol22
products called it a flying spot scanner; correct?23
A Well, I think Jerry's testimony stands on its own, and24
I'm not -- I'm not the recorder to agree or not agree what was25
ALLAIS - DIRECT00151
already testified to.1
Q Well, let me just hand you Defendant's Trial Exhibit2
1102.3
MR. LISA: That's an excerpt, Mr. Hosier, of what4
was introduced yesterday.5
BY MR. HOSIER:6
Q That's just an excerpt of Defendant's Trial Exhibit 1102,7
which is another Lemelson patent that is not one of the ones8
in suit, sir. But I would direct your attention to column 9.9
A Is that the part you've thoughtfully colored in --10
Q Yes.11
A -- yellow and green?12
Q Yes. We're trying to make it -- life easy here,13
particularly for me, since it's late -- late in the day.14
Do you see the somewhat greenish color?15
A Yeah.16
Q Talks about "containing marks or reflective spots in the17
form of a code or codes," and then the same down -- that's at18
line 5 in column 9, and then there's the same down at19
column 35?20
A Yes, that -- that text appears to be here in this '24721
patent.22
Q Pardon, sir?23
THE COURT: He's acknowledged the text is there.24
THE WITNESS: Yes. Yes. I see that.25
ALLAIS - DIRECT00152
BY MR. HOSIER:1
Q Okay. Now let me direct your attention to Figures 5, 6,2
and 7. You see that that's what's being referred to right3
there, do you not?4
A I see the reference to Figure 7.5
Q Do you see also these markings shown in Figures 5 and 6?6
A Looks like what appears to be little -- little -- little7
tick marks in the thoughtfully highlighted areas.8
Q Okay. And do you see that in the opening column of the9
patent, column 1, first paragraph, that it refers to Mr.10
Lemelson's December 1954 application as a parent of this11
application as well?12
A Okay. I'm -- I'm not sure exactly where I'm supposed to13
look. Column 1?14
Q Column 1, first paragraph, last line and a half.15
A I see that, filed July 1954.16
Q No, no. Filed December 24, 1954.17
A Oh, I was reading another line. Yes.18
Q You recognize that as the Lemelson parent '54 application19
here; correct?20
A Well, if that's -- you can represent that to me. Whether21
it's the identical one, I don't have the numbers in my head.22
Q All right. And you recognize that this patent was filed23
in April '56 from the cover page?24
MR. McCABE: Your Honor, I'm going to object as25
ALLAIS - DIRECT00153
being, (a), beyond the scope of the direct examination, and,1
(b), as potentially sandbagging the witness with just an2
excerpt of the exhibit which he -- 3
THE COURT: I'm sorry. 4
MR. McCABE: There's no foundation. 5
THE COURT: It was an excerpt of what?6
MR. McCABE: The excerpt of the patent, just parts7
of it, and there's no foundation that this witness has ever8
even seen this patent before. I did not ask him about any9
Lemelson patents beyond the ones that are asserted against10
Symbol.11
MR. HOSIER: Well, but we're talking about bar codes12
and marks and spaces.13
THE COURT: All right. Overruled. We can pull out14
the entire document if there's another portion of it that15
needs to be -- 16
MR. HOSIER: I mean, if --17
THE COURT: -- reviewed, but, no, overruled. Go18
ahead. 19
MR. HOSIER: Okay. 20
THE COURT: The dates are as you say on there21
BY MR. HOSIER: 22
Q And do you see--23
THE COURT: -- and the witness has acknowledged that24
-- or testified, however, he doesn't, nor should he, retain25
ALLAIS - DIRECT00154
the numbers of the various patents, so he doesn't know which1
patent that is --2
MR. HOSIER: Right. Okay. 3
THE COURT: -- other than what it says.4
BY MR. HOSIER:5
Q But this use of this terminology, "marks" and so on, for6
"codes," was, again, consistent with the terminology used at7
the time to describe what you now call a bar code; correct?8
A Well, clearly there's -- there's marks disclosed here. 9
And whether, you know, his marks here would be called a bar10
code, I -- I would have to study the patent to see whether --11
whether that carryover was appropriate or not.12
Q Well, you agree that a laser is a radiation beam, do you13
not?14
A I believe we agreed to that. Laser produces a radiation15
beam.16
Q In fact, it's an acronym for what, again? If you could17
remind me.18
A Oh, here we go again.19
Q Light amplification --20
A Light amplification by stimulated -- okay, oh --21
stimulated emission of radiation. How's that?22
Q Good. And a laser is also an electro-optical scanning23
device, is it not, as used in the environment of the Symbol24
bar code scanners?25
ALLAIS - DIRECT00155
A Well, a laser produces a radiation beam. A laser by1
itself is not a scanning device.2
Q No. And that's why I qualified it to say that in the3
context of using a laser in the context of a Symbol bar code4
scanner it's proper to call that an electro-optical scanning5
device.6
A Well, you could call the whole scanner an electro-optical7
scanning device.8
Q Okay. That's correct terminology?9
A I don't see any problem with it.10
Q Okay. Sir, both before and after the availability of11
lasers in the early '70s there were used -- infrared and12
visible light sources were used to form scanning beams for use13
in various applications; correct?14
A You said infrared and visible?15
Q Yes.16
A Well, I know that visible scanning beams were used, as in17
Stites, and I know that infrared bar code reading devices were18
used, as in wand readers. I'm not aware of an infrared19
scanning beam to read bar code.20
Q All right. Bar code scanners have been constructed with21
both infrared and visible light sources which are not laser22
based since the early '70s; correct?23
MR. McCABE: I'm going to object as beyond the scope24
of the direct, Your Honor.25
ALLAIS - DIRECT00156
THE COURT: Overruled. If the witness can answer1
it.2
THE WITNESS: Where -- where are you quoting that3
from?4
BY MR. HOSIER:5
Q I'm just asking a question.6
A Well, could you repeat that sentence?7
Q Bar code scanners have been constructed with both8
infrared and visible light sources which are not laser based9
since the early 1970s.10
A I would -- I would agree to that, but the infrared11
scanners may or may not have produced a scanning beam. They12
may have been contact-type wands that are sometimes also13
called scanners. I just have no knowledge of a beam-type14
infrared scanner specifically.15
Q Are there infrared and visible light source scanners, to16
your understanding, still in use today?17
A There are certainly visible light wands in use today. 18
There are infrared and visible what's called slot scanners,19
which are different from the supermarket scanner, but there's20
a little slot that you run like a bar-coded employee badge21
through that will read the bar code. And I know those are22
made with both infrared and visible light sources.23
Q And right on through today -- to today?24
A Yes.25
ALLAIS - DIRECT00157
Q Even though there is the option to use a laser, as well?1
A Yes.2
Q All right, sir. I wish to be clear with regard to your3
direct testimony about what you did and what you did not do in4
connection with this assignment in this case. And, as I5
understand it, for purposes of this case you did not read the6
Lemelson patents-in-suit. Or is that not true?7
A Oh, I -- I did read the patent.8
Q But you didn't -- you read only very selected portions of9
the file history?10
A Minimal portions of the file history.11
Q And you don't recall what they are?12
A I -- I think the one that Mr. McCabe cited was one that I13
had -- I had seen.14
Q So you were selectively given parts of the file history15
by counsel?16
A No, I was given the whole file history. But since I'm17
running a business and doing a lot of other things and my18
assignment in the case was not to become a student of the file19
history, I did not choose to go through all of that.20
Q How did you determine what you looked at and what you21
didn't look at?22
A I don't recall.23
Q No idea?24
A Well, I -- I don't -- I don't recall what I did see and25
ALLAIS - DIRECT00158
what I didn't, because it wasn't part of my assignment to do1
that.2
Q Okay. You did not offer any opinions on the ordinary3
skill -- or, excuse me, you did not offer any opinions on the4
ordinary and accepted meaning of any words or terms used in5
the field, either now or throughout the times pertinent to6
this litigation; is that right?7
A Well, probably with the exception of things like bar code8
and bar code symbology and those things, which I've certainly9
offered my opinions on.10
Q But you didn't offer what were ordinary and accepted11
meanings of words. In fact, I think you called -- you said12
you were not a word expert, or what term did you use?13
A Not a vocabularist.14
Q That's the word. So you didn't purport to provide15
ordinary and accepted meaning for terms used in the industry16
during the course of your direct testimony?17
A That's correct.18
Q And, of course, you did not offer any opinions or19
testimony on the proper interpretation of the Lemelson patent20
claims?21
A That's correct.22
Q And you did not offer any opinions or testimony with23
respect to any of the Cognex bar code scanning products;24
correct?25
ALLAIS - DIRECT00159
A Oh, yes, that's correct.1
Q You confined your testimony entirely to Symbol products;2
correct?3
A That's true.4
Q And your testimony was not offered to rebut any positions5
taken or opinions given in the expert report of Dr. Brian6
Williamson; is that correct?7
A Well, I'm not sure of the legal context of "rebut" and so8
forth. I believe some of -- some of my --9
Q Challenge. How about challenge?10
A Well, in my -- in my noninfringement report, which was11
the first report that I was deposed on, I offered claim charts12
interpreted as I believed that the Lemelson Partnership had13
interpreted the claims. So I don't know whether that's called14
rebuttal or whether it's called something else, but I did do15
that.16
Q Well, you were purporting, when you interpreted the17
Lemelson claims, were you not, to accept Dr. Williamson's18
opinions, or not, on a claim interpretation?19
A I was to accept Dr. Williamson's claim constructions in20
that -- in that portion. But then there's this -- also this21
very lengthy infringement analysis provided by the Lemelson22
Partnership, and I was -- you know, that's a different -- a23
different animal.24
Q All right. You realize that when you say that the Symbol25
ALLAIS - DIRECT00160
bar code products do not infringe the Lemelson claims as1
interpreted by Lemelson, you are testifying in direct2
contradiction to the expert report of Dr. Hunt; correct?3
A Well, that would seem so.4
Q And so Dr. Hunt is looking at Dr. Williamson's claim5
construction, that is, Lemelson's claim construction; correct?6
A I believe that's his source.7
Q And you're looking at Lemelson's claim construction;8
correct?9
A Yes.10
Q You're both comparing them to Symbol products; correct?11
A Yes.12
Q And you're coming to opposite conclusions; correct?13
A Correct.14
Q And in fact you're not using Lemelson's claim15
construction when you do that, are you?16
A Well it's --17
Q You're modifying Lemelson's claim construction, aren't18
you? Isn't that true?19
A Lemelson's claim construction as drawn in italics in that20
-- the material that we reviewed, I have endeavored to, in21
that portion of my testimony, adopt that, and then to take22
additional information from the infringement analysis in order23
to try to make sense of it in terms of Symbol products. I've24
done the best that I can with the information provided by the25
ALLAIS - DIRECT00161
partnership to understand which claim elements do or do not1
read on the Symbol products and why.2
Q Well, did you -- you didn't really expect that Dr.3
Williamson was giving a claim construction for the Lemelson4
claims that didn't apply to any of the Symbol products, did5
you?6
A Well, the claim construction that -- you know, the7
italicized claim construction generally speaking, to my mind,8
was an expansion of what the claims would appear to be on9
their own and perhaps an elaboration. And I don't believe I10
contradicted any -- any of that Williamson material. But I11
took associations out of the infringement analysis and brought12
them in and said, well, if this step is that activity or13
signal in the Symbol products, then for this reason that step14
does not infringe.15
Q But you realize what you're doing is changing the16
Lemelson claim construction as set forth by Dr. Williamson and17
certainly the Lemelson claim construction as interpreted by18
Dr. Hunt when he applies those same claims to those same19
products; correct?20
A I recognize that I am taking a divergent opinion to that21
offered by Dr. Hunt, but I believe in the process of doing22
that I am not going against the written text of Dr.23
Williamson.24
Q Now, you recognize that -- you certainly recognize the25
ALLAIS - DIRECT00162
conflict with Dr. Hunt. Fair to say?1
A Well, I believe that we have divergent opinions about2
infringement, if that's what you mean by conflict.3
Q And your divergent opinions about infringement is based4
on the way you read the Lemelson claim construction versus how5
Dr. Williamson reads -- excuse me, Dr. Hunt reads the Lemelson6
claim construction; right?7
A I believe that's right.8
Q And you obviously recognize we wouldn't even be here if9
Dr. Williamson's claim construction didn't apply to the Symbol10
products, would we?11
A Well, that's the assertion that they apply, and I guess12
that's -- that's why you're here. I don't agree that they do13
apply to the Symbol products.14
MR. HOSIER: Would this be a convenient breaking15
point, Your Honor?16
THE COURT: Yeah. We're just about exactly, within17
a minute, of when I'd intended to. So we'll go ahead and18
break at this point. You've got an hour and a half left on19
your time for cross-examination. You think you'll need all of20
that, or --21
MR. HOSIER: Well, I'll see what I can do during the22
evening, but -- 23
THE COURT: Why don't we do --24
MR. HOSIER: -- he covered an awful lot of ground in25
ALLAIS - DIRECT00163
big chunks with these charts, and I -- 1
THE COURT: Well, you've got an hour and a half if2
you need it. But let's reconvene tomorrow, instead of 1:00 --3
Donna, let's try and do it at 12:30. Will that mess4
you all up if -- do you have something going at noon? You do5
have something going at noon. Okay. Well, we'll make it 1:006
o'clock. But we'll run late tomorrow.7
We have a change of plea at 4:30?8
THE CLERK: No, we changed that --9
THE COURT: No, we'll just trail it and take it10
probably at 5:00. You might let them know it'll be at 5:00.11
I want to be able to wrap this witness up, and if12
possible -- well, you'll have an hour and a half with this13
witness, then any redirect, recross, and then we can start14
Williamson.15
My recollection was you had Williamson for how many16
hours on direct you estimated? Was it two?17
MR. HOSIER: Well, yeah, I --18
MR. JENNER: I think -- I think the estimate they19
gave was hour and a half, maybe two, Your Honor.20
THE COURT: Two.21
MS. CURTIN: Yes.22
THE COURT: Yeah, I remember it was two, yeah.23
MS. CURTIN: Two was what you had suggested, Your24
Honor.25
ALLAIS - DIRECT00164
MR. HOSIER: Yeah. And I think -- we were trying1
to, frankly, shrink it greatly, and, frankly, Dr. Williamson2
has good days and bad days, is what his health condition is3
right now, so I guess how long we'd be would be a little part4
whether it's a good day or a bad day.5
THE COURT: Well, hopefully it'll be -- Thursday6
will be a good one. But if he can be here tomorrow afternoon,7
we might be able to get started with him.8
MR. HOSIER: No, no. I think that we would9
certainly try to get started with him.10
THE COURT: That would break it up a bit.11
MR. HOSIER: No. And I think that would be good for12
him, frankly.13
THE COURT: Yeah. Yeah. Okay.14
On Friday I have a naturalization at 3:30. 15
Unfortunately, we lost a very fine member of the bar16
yesterday, and his funeral is on Friday at 1:00 o'clock. I17
wanted to try and attend that funeral, if I can. And since we18
were going to have to break at 3:30 anyway, so I would want to19
try and wrap up Friday morning, if we could, even --20
MR. HOSIER: Oh, I don't think we're going to have21
any problem getting through Dr. Allais and Dr. Williamson.22
THE COURT: Well, let's just hope we can. There was23
another -- another person that we had. Yeah.24
MR. JENNER: Right.25
ALLAIS - DIRECT00165
MR. HERMAN: Well, we do have another issue, Your1
Honor. The witness we would call --2
THE COURT: After Williamson.3
MR. HERMAN: -- after Dr. Williamson is a fellow4
named Mr. Adelman, who is not at the moment here.5
THE COURT: Okay.6
MR. HERMAN: I was going to put him on a plane7
tomorrow to get him here. However, he's already been here for8
a week -- not a week, several days the last time. I would be9
reluctant to get him on a plane --10
THE COURT: Sure.11
MR. HERMAN: -- get him here on Thursday only to be12
told Friday at 1:00 o'clock that he's either going home13
started or not started.14
THE COURT: Yeah. Yeah.15
MR. HOSIER: But I -- I'm willing to do Mr. Adelman16
as soon as we return. I mean, I don't care which way they17
want to do it. I suspect --18
THE COURT: Well, let's convenience him by not19
dragging him out and so we make sure we finish Allais and20
Williamson, and then I suppose you don't have anybody that's21
really brief that could be -- that's locally -- or not -- not22
locally --23
MR. HOSIER: Well, I could perhaps -- well, I could24
perhaps bring down Donna Lemelson, Mr. Lemelson's widow. I25
ALLAIS - DIRECT00166
can put her on. I could do that if they want to give that a1
try.2
MR. JENNER: Your Honor, I know you want to run3
things the way you see fit. We would just as soon, if it4
didn't make a difference, not have another witness that didn't5
need to coming on in our case. If Your Honor wants to go6
ahead with Mrs. Lemelson, of course we'll do what Your Honor7
wants, but --8
THE COURT: Well, I'm just -- if we really do wrap9
up Williamson so that we're done on Thursday midday, I'm10
concerned we're going to have Thursday afternoon and Friday11
morning that are going to be lost.12
13
MR. HOSIER: I can --14
THE COURT: How long would Mrs. Lemelson be?15
MR. HOSIER: Two, two and a half hours. And I think16
it would be -- you know, be convenient to get it done and get17
it over with. I -- I frankly don't think much -- you know,18
it's their case, our case.19
THE COURT: Well, yeah. I'd like to get her --20
let's -- if we can have her available, let's do that. We'll21
play it by ear tomorrow so that -- she's flying from Northern22
Nevada?23
MR. HOSIER: Reno. She'd be flying -- she's in24
Incline Village.25
ALLAIS - DIRECT00167
THE COURT: Okay. So travelwise that's dependent1
upon the weather.2
MR. HOSIER: Right.3
THE COURT: That's a little more doable than4
wherever -- I'm assuming Mr. Adelman's from the east5
somewhere, isn't he? Yeah. Let's tell Mr. Adelman to just6
wait 'til the new year, and we'll get him then and save him7
another wasted trip out here, then. Okay?8
MR. HOSIER: Thank you, Your Honor.9
MR. JENNER: Your Honor, I probably ought to say10
that the person who's going to examine Mr. -- Dr. Williamson11
is not here. But I'm a little bit concerned that his12
direct --13
THE COURT: Will he be here tomorrow, or she?14
MR. JENNER: Oh, he'll certainly be here, yeah.15
THE COURT: Yeah.16
MR. JENNER: The problem that may come up, just so17
that Your Honor isn't surprised, once upon a time Dr.18
Williamson was the -- still is the author of a huge number of19
declarations and expert reports.20
THE COURT: Right.21
MR. JENNER: A lot of that has been shifted to Dr.22
Hunt, but we had been told to expect four or five hours of his23
direct. Now it's going to be shrunk. I'm not sure whether24
that's --25
ALLAIS - DIRECT00168
THE COURT: He's limited to scope of areas he's1
going to cover, as I understand it, from the earlier2
representations.3
MR. HOSIER: Right. And frankly --4
MR. JENNER: There may be some problem with the5
cross, and we may ask some indulgence from the Court,6
depending upon what it is he goes into and what is submitted7
in the way of charts. I think we need to see what he does --8
MR. HOSIER: He's not --9
MR. JENNER: -- but I just thought I ought to tell10
Your Honor now.11
MR. HOSIER: Well, he's not going into declarations12
and all that. Frankly, Your Honor, it would be our preference13
to have had him -- as you can imagine, he's been in our case14
since '92.15
THE COURT: Oh, I know.16
MR. HOSIER: And what's happened is, frankly, age17
has caught up with him.18
THE COURT: Right. No, I understand.19
MR. HOSIER: And age has caught up with his --20
THE COURT: We had -- we had motions that dealt with21
this and the use of Dr. Hunt who adopted views and so forth.22
MR. HOSIER: And we're --23
THE COURT: I'm not -- I'm not giving carte blanch24
to anybody. My view is we'll keep it to the same amount of25
ALLAIS - DIRECT00169
time you use in direct and into the areas that you talk about. 1
He may have declarations on this, that and the other thing2
that he's prepared over the last 20 years. That doesn't mean3
I'm going to allow anybody to go into it, because he's not --4
I'm talking about what his testimony is. I'm concerned with5
what his testimony is, what the evidence is in this case. And6
unless it's impeaching him on something he said here, then I'm7
not going to open it up to examination.8
Who's doing the examination of him?9
MR. JENNER: Mr. Cherney.10
THE COURT: Oh. Okay. Okay. All right. Well,11
let's reconvene tomorrow at 1:00, then, and we'll get Dr.12
Allais finished in an hour and a half, at least on his cross13
and whatever brief redirect and recross there is. All right?14
MS. CADISH: Your Honor, tomorrow perhaps at the15
close of Mr. Allais' testimony we could take quickly up the16
issue of Mr. Hoffman's potential to be a witness so we can17
take that up this week.18
THE COURT: Yeah. Yeah. Let's talk about that for19
a minute. Mr. Hoffman is going to be a witness on what20
subject again? Just refresh my --21
MR. HOSIER: I'll have Ms. Curtin, I think, address22
this.23
THE COURT: -- recollection. Ms. Curtin.24
MR. HOSIER: It looks like things have changed on25
ALLAIS - DIRECT00170
the other side's case, and maybe she can address some of these1
issues.2
MS. CURTIN: Your Honor, as we understand it, we had3
intended Mr. Hoffman's testimony to be directed mainly towards4
the issue of secondary indicia, if not obviousness. Having5
heard Dr. Horn's testimony, we didn't hear any opinions on6
obviousness, at all.7
The other thing we had intended to have Mr. Hoffman8
largely address was to anticipate, if you will, Dr. Carlton's9
opinions, which were also directed to secondary indicia,10
commercial success. And we're --11
THE COURT: Dr. who's testimony?12
MS. CURTIN: Dr. Carlton, who is their economist.13
THE COURT: Right.14
MS. CURTIN: And it's my understanding that -- I15
shouldn't say it's my understanding. It would be my belief16
that since there's no obviousness case, that it's also not17
necessary to respond to Dr. Carlton's opinion.18
MR. HOSIER: Dr. Carlton is not going to testify.19
MS. CURTIN: Right. Right.20
MS. CADISH: He's not going to testify in our case21
in chief.22
MS. CURTIN: Okay. That having --23
THE COURT: So Hoffman -- so Hoffman becomes24
unnecessary?25
ALLAIS - DIRECT00171
MS. CURTIN: Not exactly, but close, Your Honor.1
THE COURT: All right.2
MS. CURTIN: We have a very limited need to address3
the licensing issues in connection with our arguments that4
they support an inference that it is a pioneering invention. 5
That would be much, much, much scaled down from anything that6
-- that would have been necessary with regard to commercial7
success. He also, unfortunately, is going to be necessary to8
tie up a few of the loose ends on document issues that have9
arisen, and very briefly to address one other minor matter10
that was raised with -- in the testimony of Mr. Steiner, which11
was the suggestion that there had been a data dump, an12
inappropriate data dump to the Patent Office in connection13
with the later patents, arising out of prior art identified14
during the Ford litigation.15
I wouldn't expect that Mr. Hoffman's testimony all16
told on direct would exceed an hour and probably be17
significantly less than that.18
THE COURT: All right.19
MS. CADISH: Well, I guess, Your Honor, what I'd20
like to --21
THE COURT: Mr. Allais, you can step down. You22
don't need to stand by. Thanks.23
MS. CADISH: We'd like to understand exactly what it24
is he's going to say. I mean, if he's going to get on the25
ALLAIS - DIRECT00172
stand and say how many licenses and what the total amount paid1
is, that's obviously a lot less controversial than if he's2
going to try to get into his understanding of reasons why3
people --4
THE COURT: Why don't the two of you communicate5
further tonight about precisely what the scope will be. And6
then if you still feel a deposition is necessary, I'll allow7
that to be taken. We'll -- in this --8
MS. CADISH: Well, Your Honor, I'd really like to be9
heard before you decide that a deposition would be allowed,10
but we can confer on the scope of his testimony.11
THE COURT: Well, confer first, and I'll determine12
that and also when it has to be accomplished over the next13
couple of weeks. We do have this window of time. I realize14
it's not convenient for people, maybe, over the holidays, but15
at least before we get cranked back up.16
I think my clerk did tell you about the 16th of17
January we lost.18
Did you tell them that?19
THE CLERK: No, I haven't, Your Honor, no.20
We have one day of January --21
Negative?22
That's one day that we have lost. Matters have come23
up and I'm going to have to be in Reno on that date, so --24
that's Thursday, the 16th.25
ALLAIS - DIRECT00173
MS. CURTIN: Okay. Your Honor, also one -- while1
we're kind of dealing quickly with this issue of losing the2
obviousness case, do you still anticipate Mr. May coming to3
testify, or was that strictly also on the -- on the4
obviousness case?5
MR. JENNER: I don't know what we're going to do in6
a rebuttal case until we hear your case. I've just heard no7
Mr. Hoffman, and then I heard Mr. Hoffman --8
COURT RECORDER: Excuse me, Mr. Jenner. Could you9
swing that --10
MR. JENNER: I'm sorry. I don't know until we hear11
their case, including -- 12
THE COURT: But he's not testifying in your case in13
chief?14
MR. JENNER: Not in our case in chief. Carlton and15
May may -- too many mays. Carlton and Mr. May would come in16
in our rebuttal case if they testify. And I'm not prepared to17
state at this point whether or not we'll call them. I want to18
hear --19
THE COURT: We know we've got Adelman after Allais. 20
And is that it in your case in chief?21
MR. JENNER: Adelman is it.22
THE COURT: Okay. Okay. All right. All right. 23
All right. Well, talk about the situation as to Hoffman24
tonight, and first thing tomorrow we can address that, or at25
ALLAIS - DIRECT00174
some convenient time tomorrow. I really want to get Dr.1
Allais wrapped up and get started with Hoffman tomorrow, if we2
can. So we'll go at least to this time tomorrow.3
MR. HOSIER: You mean Williamson tomorrow.4
THE COURT: Williamson. I'm sorry. Williamson.5
MS. CURTIN: That's all right.6
THE COURT: Sorry.7
MR. HOSIER: Mr. Hoffman, unfortunately, is going to8
be down in Phoenix at our other hearing that I was supposed to9
be at.10
THE COURT: Okay. All right. He's free to go11
tomorrow, he doesn't have to be here.12
MR. HOFFMAN: That's Thursday, now.13
THE COURT: Or Thursday. All right.14
MR. HOSIER: Thursday, yes. I'm getting my days15
messed up.16
THE COURT: All right. All right. Thank you,17
everybody. Have a pleasant evening.18
(Court recessed at 5:10 p.m., until the following day,19
Wednesday, December 18, 2002, at 1:00 p.m.)20
* * * * * * * * * *21
22
ALLAIS - DIRECT00175
WITNESS INDEX AND EXHIBIT LIST
WITNESS INDEX
PLAINTIFF'S WITNESSES: PAGE
ALLAISDirect examination by Mr. McCabe (Continued)
EXHIBIT LIST
PLAINTIFF'S EXHIBIT NO. ADMITTED
3327 --3523 --3525 --3526 --3527 --
DEFENDANT'S EXHIBIT NO.
1102 Lemelson patent 247 --1122 Lemelson patent 109 --2186 Lemelson patent 833 --2188 Lemelson patent 481 --
ALLAIS - DIRECT00176
WITNESS INDEX AND EXHIBIT LIST
WITNESS INDEX
PLAINTIFF'S WITNESSES: PAGE
DAVID ALLAISDirect Examination by Mr. JennerCross-Examination by Mr. Hosier
* * *
EXHIBIT LIST
PLAINTIFF'S EXHIBIT NO. ADMITTED
2899B Chart Re New York City Transit Authority2900A Claim Chart Re Stites Patent2903A Claim Chart Re Shawn Patent
* * *
ALLAIS - DIRECT00177
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